Akhtar Khan and 5 Others Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:61120

Court No. - 84

Case :- APPLICATION U/S 482 No. - 40114 of 2024

Applicant :- Akhtar Khan And 5 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Birendra Singh,Swati Singh Counsel for Opposite Party :- G.A.

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Hon'ble Deepak Verma,J.

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Heard learned counsel for the applicants; learned A.G.A. for the State and perused the record.

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The present application u/s 482 Cr.P.C. has been filed with prayer to quash the Charge Sheet dated 18.4.2024; cognizance/summoning order dated 13.9.2024 passed by Additional Chief Judicial Magistrate, Court No.2 Ghaziabad as well as entire proceedings of Case No.3422/2024 (State of U.P. Vs. Akhtar Khan and others), arising out of Case Crime No 64/2024, under Sections 420,406 IPC, P.S. Crossing Republic, Ghaziabad District Rural (Commissionerate Ghaziabad) presently pending before the Court of Additional Chief Judicial Magistrate, Court No. 2 Ghaziabad,

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Learned counsel for the applicants submits that applicants are innocent and have been falsely implicated in the present case. On perusal of F.I.R., no offence under the alleged Sections is made out. Learned court below has passed the cognizance order/summoning order without application of judicial mind. It is next submitted that proceedings under Sections 420 and 406 I.P.C. cannot run jointly in view of the judgment of Apex Court in Delhi Race Club (1940) Ltd. vs. The State of Uttar Pradesh & Anr., 2024 SCC OnLine SC 2248, wherein the Apex Court in paragraphs 42 and 43 has held thus:

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"42. When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police ? to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has

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become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.

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43. 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 viz-a-viz 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 the IPC (now BNS, 2023) are not twins that they cannot survive without each other."

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Considering the argument raised by applicants' counsel and in view of judgment passed by Hon'ble The Apex Court in the case of Delhi Race Club (supra), cognizance/summoning order dated 13.9.2024, passed by learned Magistrate is without application of judicial mind.

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Accordingly, the impugned order dated 13.9.2024, passed by the Additional Chief Judicial Magistrate, Court No.2 Ghaziabad, in Case No.3422/2024 (State of U.P. Vs. Akhtar Khan and others) arising out of Case Crime No 64/2024, under Sections 420, 406 IPC, P.S. Crossing Republic, Ghaziabad District Rural (Commissionerate Ghaziabad), is hereby quashed.

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The matter is remanded back to learned Magistrate with direction that learned Magistrate shall pass an appropriate order within a month from the date of production of certified copy of this order keeping in view the order of Hon'ble The Apex Court passed in the case of Delhi Race Club (supra).

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With aforesaid direction, the present application under Section 482 Cr.P.C. is accordingly allowed.

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Order Date :- 23.4.2025 Meenu Singh

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Digitally signed by :- MEENU SINGH High Court of Judicature at Allahabad

Akhtar Khan and 5 Others v. State of U.P. and Another

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