Nitin Bhatia vs State of Up Thru. Addl. Chief Secy. Home Deptt. U.P. Lko. and Another

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Court No. - 14 Case :- APPLICATION U/S 482 No. - 3612 of 2025 Applicant :- Nitin Bhatia Opposite Party :- State Of Up Thru. Addl. Chief Secy. Home Deptt. U.P. Lko. And Another Counsel for Applicant :- Shamshad Ahmad Khan Counsel for Opposite Party :- G.A.

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Hon'ble Manish Kumar,J.

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The instant application under Section 482 Cr.P.C. read with Section 528 Bharatiya Nagrik Suraksha Sanhita, 2023 has been filed by the applicant with the following prayers:-

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"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to set aside/quash the impugned cognizance and summoning order dated 28.06.2019 passed by the learned Chief Judicial Magistrate, Lucknow in W/S Crl. Case No. 28216 of 2019, State Versus Paresh Rastogi & Ors and the impugned Charge Sheet dated 18.02.2019 submitted by the police in Case Crime No.47 of 2019, U/Ss 406, 420 I.P.C., Police Station Hazratganj, District Lucknow as contained in Annexure no.1 and 2 respectively to this petition and further the entire proceedings of W/S Crl. Case No. 28216 of 2019, State Versus Paresh Rastogi & Ors pending before the Chief Judicial Magistrate, Lucknow arising out of the F.I.R. dated 20.01.2019 be also set aside/quashed, otherwise, the petitioner will suffer irreparable loss and injury which cannot be made good in any event."

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Brief facts of this case are that an FIR dated 20.01.2019 has been lodged by respondent no. 2 against the named accused persons in which the applicant is not named alleging therein that the complainant had entered into an agreement for purchase of a piece of land from M/s Rohtas Projects Limited for which the complainant had made payment against which the receipt was provided which was signed by the applicant and that is the only reference with regard to the applicant in the FIR otherwise, neither in the statement recorded under Section 161 Cr.P.C. nor anywhere else, there was any evidence found against the applicant.

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Learned counsel for the applicant has submitted that the applicant was simply an employee of the firm and in any case, the dispute which is civil in nature has been given colour of a criminal case.

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It is further submitted that the charge sheet against the applicant has been filed under Section 406 and 420 IPC, which cannot go in the same breath as per the proposition of law settled by Hon'ble Supreme Court in the case of Delhi Race Club (1940) Ltd. and others vs. State of Uttar Pradesh and another reported in 2024 10 SCC 690. The relevant portion of the said judgment is being reproduced hereinbelow:-

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"38. In our view, the plain reading of the complaint fails to spell out any of the aforesaid ingredients noted above. We may only say, with a view to clear a serious misconception of law in the mind of the police as well as the courts below, that if it is a case of the complainant that

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offence of criminal breach of trust as defined under Section 405IPC, punishable under Section 406 IPC, is committed by the accused, then in the same breath it cannot be said that the accused has also committed the offence of cheating as defined and explained in Section 415IPC, punishable under Section 420 IPC.

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41. The distinction between mere breach of contract and the offence of criminal breach of trust and cheating is a fine one. In case of cheating, the intention of the accused at the time of inducement should be looked into which may be judged by a subsequent conduct, but for this, the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction i.e. the time when the offence is said to have been committed. Therefore, it is this intention, which is the gist of the offence.

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43. There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of making a false or misleading representation i.e. since inception. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriated the same. Whereas, in case of cheating, the offender fraudulently or dishonestly induces a person by deceiving him to deliver any property. In such a situation, both the offences cannot co-exist simultaneously.

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55. It is high time that the police officers across the country are imparted proper training in law so as to understand the fine distinction between the offence of cheating vis-a-vis criminal breach of trust. Both offences are independent and distinct. The two offences cannot coexist simultaneously in the same set of facts. They are antithetical to each other. The two provisions of IPC (now BNS, 2023) are not twins that they cannot survive without each other."

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Learned A.G.A. has vehemently opposed the application but unable to dispute the settled proposition of law as relied upon by the learned counsel for the applicant i.e. the Section 406 I.P.C and Section 420 I.P.C cannot be proceeded with simultaneously.

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The matter requires consideration.

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Issue notice to the respondent nos. 2.

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Steps be taken within seven working days.

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List this case in the 1st week of July, 2025.

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Office is directed to submit service report by the next date of listing.

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Till the next date of listing, entire proceedings of Crl. Case No 28216 of 2019 pending before the Chief Judicial Magistrate, Lucknow, shall remain stayed, as far as it is related to the applicant.

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Order Date :- 29.4.2025 Nitesh

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Digitally signed by :- NITESH KUMAR TEWARY High Court of Judicature at Allahabad, Lucknow Bench

Nitin Bhatia v. State of Up Thru. Addl. Chief Secy. Home Deptt. U.P. Lko. and Another

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Nitin Bhatia v. State of Up Thru. Addl. Chief Secy. Home Deptt. U.P. Lko. and Another

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