Devashish Saxena and 2 Others vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko and Another

Court No. - 14

Case :- APPLICATION U/S 482 No. - 3689 of 2025

Applicant :- Devashish Saxena And 2 Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And Another Counsel for Applicant :- Govind Yadav,Amit Kumar Gaur Counsel for Opposite Party :- G.A.

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Hon'ble Manish Kumar,J.

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The present application under Section 482 Cr.P.C/528 B.N.S.S has been preferred with the following main prayer:-

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"Wherefore, it is most respectfully prayed that this Hon'ble court may kindly be pleased to quashed the impugned charge sheet No. 01 dated 18.12.2018 arising out of crime No. 0243/2017 under section 406, 420, I.P.C registered at police station Hazratganj District Lucknow in the interest of justice.

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And further prayed that this Hon'ble court may kindly be pleased to stay the further proceeding of crime No. 0243/2017 under section 406, 420, I.P.C registered at police station Hazratganj District Lucknow in the interest of justice."

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The brief facts of the case are that an F.I.R dated 27.03.2017 has been lodged by the official of the bank, against the applicants alleging therein that while taking loan, the applicants have committed a fraud.

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Learned counsel for the applicants has submitted that the loan taken by the applicants has already been repaid on 09.01.2024 and the settlement letter has been enclosed as Annexure No. 3 to the paper book. After the submission of the loan by the applicants, No Dues Certificate has been issued by the complainant bank on 27.03.2024 in favour of the applicants.

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Learned counsel for the applicants has submitted that the charge sheet against the applicants have been filed under Sections 406 and 420 IPC and the concerned court has taken cognizance and issued summon against the applicants without application of mind. 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 , Sections 406 and 420 I.P.C cannot go in the same breath. 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 offence of criminal breach of trust as defined under Section 405 I.P.C,

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punishable under Section 406 I.P.C, 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 415 I.P.C, punishable under Section 420 I.P.C.

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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 I.P.C (now B.N.S, 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 no. 2.

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Steps be taken within seven working days.

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List this case in the first week of July, 2025.

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Office is directed to submit service report by the next

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date of listing.

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Till the next date of listing, proceedings of Crime No. 0243/2017 under section 406, 420, I.P.C registered at police station Hazratganj District Lucknow shall remain stayed.

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Order Date :- 5.5.2025 DiVYa

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Digitally signed by :- DIVYA SINGH High Court of Judicature at Allahabad, Lucknow Bench

Devashish Saxena and 2 Others v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko and Another

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Devashish Saxena and 2 Others v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko and Another

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