Sanjay and Another Vs State of U.P. and Another

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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APPLICATION U/S 528 BNSS No. - 16194 of 2025

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Sanjay And Another

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.....Applicant(s)

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	Versus
State of U.P. and Another	.....Opposite Party(s)
Counsel for Applicant(s) :	Jeetendra Kesharwani, Siddharth Niranjan
Counsel for Opposite Party(s):	Abhijeet Mishra, G.A., Nipun Singh, Vivek Chaturvedi

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Court No. - 82

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HON'BLE PADAM NARAIN MISHRA, J.

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Two rejoinder affidavits filed on behalf of applicants, which is taken on record.

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The present application u/s 528 BNSS has been filed with a prayer to quash the entire proceedings of Criminal Case No. 425 of 2025 (State Vs. Sanjay and another), arising out of Case Crime No. 69 of 2024, under Sections 406 and 420 I.P.C., P.S. T.P. Nagar, District Meerut, pending in the Court of Chief Judicial Magistrate, Meerut.

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Learned counsel for the applicants submits that in the present case I.O. after investigation submitted charge-sheet on 02.10.2024, under Sections 406 and 420 IPC thereafter cognizance has been taken by the learned Magistrate and summon has been issued on 13.12.2024 while as per verdict of Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690 Sections 406 and 420 cannot run simultaneously.

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Learned counsel for the opposite party no. 2 submitted that the trial court has rightly summoned the accused-applicants after having proper inquiry.

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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.,

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NA528 No. 16194 of 2025

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(2024) 10 SCC 690 has summarized that distinction finely. The relevant paragraph is quoted as under:

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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 13.12.2024 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 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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Accordingly, the present criminal misc. application succeeds and is allowed.

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The summoning order dated 13.12.2024 passed by the Judicial Magistrate, Meerut Criminal Case No. 425 of 2025 (State Vs. Sanjay and another), arising out of Case Crime No. 69 of 2024,

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NA528 No. 16194 of 2025

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under Sections 406 and 420 I.P.C., P.S. T.P. Nagar, District Meerut, pending in the Court of Chief Judicial Magistrate, Meerut is set aside. The matter is remitted back to trial court to pass a fresh order in the light of Delhi Race Club herein above.

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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

Sanjay and Another v. State of U.P. and Another

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Sanjay and Another v. State of U.P. and Another

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