Surendra Vs State of U.P. and Another

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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APPLICATION U/S 482 No. - 22181 of 2024

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Surendra

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.....Applicant(s)

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	Versus
State of U.P. and Another	.....	Opposite Party(s)
Counsel for Applicant(s) :	Arvind Prabodh Fakhruzzaman, Naushad Pooja Singh, Rajesh Yadav	Dubey, Alam,
Counsel for Opposite Party(s):	G.A., Pankaj Bharti

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Court No. - 82

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HON'BLE PADAM NARAIN MISHRA, J.

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On mentioning, Sri Fakhruzzaman, learned counsel for the applicant submits that he has informed to the counsel for the opposite party no. 2 through whats-app, copy of the same is taken on record.

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The present application u/s 482 Cr.P.C. has been filed with a prayer to quash the summoning/cognizance order dated 12.12.2023, passed by learned Additional Chief Judicial Magistrate, Kairana as well as entire proceedings of Case No. 7937/9 of 2023 arising out of Case Crime No. 54 of 2023, under Sections 420, 406 of Indian Penal Code, 1860, Police Station- Babri, District- Shamli, pending in the Court of learned Additional Chief Judicial Magistrate, Kairana.

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Learned counsel for the applicant submits that, in the present matter, the learned Magistrate has summoned the applicant under Sections 420 and 406 of the IPC, which is not permissible in light of the law laid down by the Hon'ble Apex Court in Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690 . The learned Magistrate has failed to properly appreciate the material on record and has mechanically passed the summoning order.

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Before going in the merits of the case, it is necessary to discuss the distinction between mere breach of contract and the offence of criminal breach of trust and cheating. The Hon'ble Supreme Court in the case of Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690 has summarized that distinction finely. The relevant paragraph is quoted as under:

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A482 No. 22181 of 2024

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2

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"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. Whereas, for the criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. The property in respect of which the offence of breach of trust has been committed must be either the property of some person other than the accused or the beneficial interest in or ownership' of it must be of some other person. The accused must hold that property on trust of such other person. Although the offence, i.e. the offence of breach of trust and cheating involve dishonest intention, yet they are mutually exclusive and different in basic concept. 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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On the perusal of the records, it appears that the impugned summoning order dated 12.12.2023 has been passed ignoring the legal position settled by the Hon'ble Apex Court in the case of the Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690 . The impugned summoning order does not reflect the judicial application of the mind and the learned magistrate has failed to properly appreciate the material available on record and has mechanically passed the summoning order.

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The impugned order dated 12.12.2023 is hereby set aside, and the matter is remanded back to the court concerned to pass a fresh order in accordance with law reflecting the judicial application of mind in the light of the Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690 .

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March 18, 2026 Israr

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(Padam Narain Mishra,J.)

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Digitally signed by :- ISRAR AHMAD High Court of Judicature at Allahabad

Surendra v. State of U.P. and Another

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Surendra v. State of U.P. and Another

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