Amar Singh @ Amar Singh Kushwaha and 2 Others vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:110322

Court No. - 72

Case :- APPLICATION U/S 482 No. - 40278 of 2024

Applicant :- Amar Singh @ Amar Singh Kushwaha And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Kumar Pandey,Yash Pratap Singh Counsel for Opposite Party :- G.A.

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Hon'ble Deepak Verma,J.

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Supplementary affidavit, filed today, is taken on record.

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Heard Sri Yash Pratap Singh, 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 impugned entire proceedings including the Impugned charge sheet dated 21.06.2019 and Cognizance/Summoning order dated 19.09.2019 in Case No. 5065 of 2019 (State Vs. Saurabh Kumar and others), arising out of case crime no. 1047 of 2018, under sections 406 & 420 I.P.C., Police Station-Kotwali Orai, District Jalaun at Orai, whereby the charge sheet has been filed against the applicants in an illegal manner and the learned court below has summoned the applicants without application of judicial mind.

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Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the present case. FIR was registered U/s 420, 467, 468 I.P.C., thereafter, I.O. submitted charge sheet U/s 420 and 406 I.P.C. against the applicants and learned Magistrate took cognizance under the said sections and issued summon on 19.09.2019 against the applicants. On perusal of F.I.R., no offence under the alleged Section 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, the Apex Court has held in para 42 and 43, which are quoted herein below:

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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

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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 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 (1940) Ltd., cognizance/summoning order dated 19.09.2019 passed by learned Magistrate is without application of judicial mind.

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Accordingly, the impugned Cognizance/Summoning order dated 19.09.2019 in Case No. 5065 of 2019, arising out of case crime no. 1047 of 2018, under sections 406 & 420 I.P.C., Police StationKotwali Orai, District Jalaun at Orai, 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 15 days 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 (1940) Ltd. vs. The State of Uttar Pradesh & Anr.

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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 :- 10.7.2025 Nitin Verma

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Digitally signed by :- NITIN KUMAR VERMA High Court of Judicature at Allahabad

Amar Singh @ Amar Singh Kushwaha and 2 Others v. State of U.P. and Another

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Amar Singh @ Amar Singh Kushwaha and 2 Others v. State of U.P. and Another

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