Byas Gupta @ Vyas and Another Vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 21949 of 2025

Byas Gupta @ Vyas And Another

	Versus	.....Applicant(s)
State of U.P. and Another		.....Opposite Party(s)
Counsel for Applicant(s)	:	Manoj Kumar Maurya
Counsel for Opposite Party(s)	:	G.A.

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Court No. - 92

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HON'BLE RAM MANOHAR NARAYAN MISHRA, J.

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Heard learned counsel for the applicants and learned A.G.A. for the Staterespondents and perused the material available on record.

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The instant application under Section 482 BNSS, has been filed by the applicants with prayer to quash the cognizance/summoning order dated 01.03.2025, chargesheet dated 20.09.2024 as well as entire proceedings of Criminal Case No.2667 of 2025, arising out of Case Crime No.92 of 2024, under Sections 406, 420, 504, 506 IPC, P.S. Bhatpar Rani, District Deoria, pending in the court of learned Civil Judge (JD), Court No.26, Deoria.

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The prosecution version as culled out from FIR version and other material appearing on record is that the accused applicants made representation to the informant, they would arrange a job for his son in Malaysia and he will start receiving Rs.40,000/- to Rs.50,000/- per month as salary. Placing reliance on the representation the informant alongwith his son Laxman and co-village Banarasi Patel met applicant Byas Gupta @ Vyas who gave them Visa Malaysia and for that purpose both of them paid Rs.1,10,000/- to Vyas Gupta. Applicant No.1 asked the son of the informant to reach Delhi Airport on 01.03.2023, when his son reached Airport, Vyas Gupta had given a ticket of Bangkok and asked them to reach Bangkok from where he will send them to Malaysia. When they reached Bangkok, an associate of Mohan met them and took Rs.20,000/- from each of them and locked them in a room, Mohan and Gopal gave beating to his son. According to informant Vyas, Mohan and Gopal operate a racket and playing deception on needy persons, robbed them of their money.

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NA528 No. 21949 of 2025

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Learned counsel for the applicants submitted that applicants are falsely implicated in the case, the date of incident is shown as 13.05.2024 in FIR, where as the occurrence took place on 10.11.2022 and FIR was lodged after one and half years i.e. on 13.05.2024, which is highly belated. The Investigating Officer has made e-visa of Malaysia as well as Air-tickets part of case diary, which are filed as annexure No.6 to the affidavit. Investigating Officer has filed chargesheet in the case without considering the supporting material in proper perspective and investigation itself has been done in perfunctory manner. The opposite party No.2 and the informant contacted the applicants for providing jobs, as such the applicants had provided e-visa of Malaysia and subsequently opposite party No.2 provide Air ticket from Delhi to Bangkok from where they have to go to Malaysia, but they came back to India as they were not ready to go Malaysia and worked there and lodged FIR after one and half year, maliciously. Applicants have committed no offence.

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Submission of learned counsel for the applicants is that the Hon'ble Supreme Court in the case of Delhi Race Club (1940) Limited and others Versus State of U.P. and another, (2024) 10 SCC 690 , has held that no person can be summoned under both the sections i.e. 406 and 420 I.P.C. simultaneously. It is also submitted by learned counsel for the appellants that it is a purely case of civil nature. The Hon'ble Supreme Court in Rikhab Birani and another Versus State of Uttar Pradesh and another, 2025 SCC OnLine SC 823 , has held that a civil case cannot be converted into criminal case. Learned counsel for the applicants further submits that the applicants have filed a civil suit in respect of cancellation of the sale deed which was executed by the applicants in favour of the opposite party no. 2 as there is misrepresentation and there is no contract/agreement with free will.

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Learned counsel for the applicants placed reliance on a Single Judge judgment of this Court in Application under Section 528 BNSS No.17649 of 2025 ( Digvijay Nath Yadav and another Vs. State of U.P. and another) , wherein explanation was sought from Chief Judicial Magistrate, Gorakhpur as to why he had not followed the law laid down by the Hon’ble Apex Court in Delhi Race Club (1940) Limited and others Versus State of U.P. and another, (2024) 10 SCC 690 , as no body can be summoned under

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NA528 No. 21949 of 2025

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Section 420 and 406 IPC, simultaneously in same cases. Hon'ble Court laid down following proposition of law in this case :-

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"30. 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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31. At the most, the court of the Additional Chief Judicial Magistrate could have issued process for the offence punishable under Section 420 of the IPC i.e. cheating but in any circumstances no case of criminal breach of trust is made out. The reason being that indisputably there is no entrustment of any property in the case at hand. It is not even the case of the complainant that any property was lawfully entrusted to the appellants and that the same has been dishonestly misappropriated. The case of the complainant is plain and simple. He says that the price of the goods sold by him has not been paid. Once there is a sale, Section 406 of the IPC goes out of picture. According to the complainant, the invoices raised by him were not cleared. No case worth the name of cheating is also made out.

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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 fall 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

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NA528 No. 21949 of 2025

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allegation of some dishonesty or fraud, without any proper application of mind."

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In the present case summoning order was passed by learned trial court on the basis of chargesheet against the applicants under Sections 406, 420, 504, 506 IPC on 01.03.2025 contrary to the dictum of Hon’ble Supreme Court in Delhi Race Club (1940) Limited (supra).

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Per contra, learned A.G.A. submitted that from FIR version and evidence collecting during investigation a case under Section 420 IPC is made out against applicants, as the informant and his son parted with their money on deceitful representation of the accused. Another person Banarasi Patel is also victim of deception played by the accused. Even if a charge under section 406 IPC is not made out in the case, the charge under section 420 IPC is made out on facts of the case and trial may proceed under this charge.

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Be that it may, a palpable illegality appears in summoning order, which is non-speaking as well as passed contrary to the observations of Hon’ble Apex Court in aforesaid case, is not sustainable and deserves to be quashed, for reasons shown above.

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In view of above, the impugned summoning order dated 01.03.2025 passed by learned Civil Judge (JD)/ Court No.23, Deoria in Case No.2667 of 2025 arising out of Case Crime No.92 of 2024 under Sections 406, 420, 504, 506 IPC, Police Station Bhatpar Rani, District Deoria is quashed.

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Learned court below is directed to pass a fresh order on question issuance of process to the applicants in accordance with law after giving opportunity of hearing to the parties, considering the dictum of Hon’ble Supreme Court as stated above.

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The application under Section 528 BNSS, is hereby disposed of with above directions.

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(Ram Manohar Narayan Mishra,J.)

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September 23, 2025 Ashish/-

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

Byas Gupta @ Vyas and Another v. State of U.P. and Another

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