State v. Ravindra Kumar Yadv

2. The brief facts of the case are that an F.I.R dated 27.07.2023 has been lodged by the respondent no. 2 against the four named accused persons including the present applicant i.e Virendra Kumar, alleging therein that the respondent no. 2/complainant had executed a sale deed of 5 biswa land in favour of one Shri Raksharam Rajbhar on the consideration of Rs. 30 lakhs, Rs. 14 lakhs has been received through RTGS and cheque respectively and Rs. 16 lakhs were given by Shri Raksharam Rajbhar to the husband of the complainant in cash, which has fraudulently been taken away by the accused persons.

3. Learned counsel for the applicant has submitted that the charge sheet against the applicant has been filed under sections 420, 406, 504 & 506 I.P.C and the concerned court has taken cognizance and issued summon against the applicant without application of mind. As per the proposition of law settled by Hon'ble Supreme Court in the case of Delhi Race Club (1940) Ltd. and others vs. State of Uttar Pradesh and another reported in 2024 10 SCC 690, Sections 406 and 420 I.P.C cannot go in the same breath. The relevant portion of the said judgment is being reproduced hereinbelow:- "38. In our view, the plain reading of the complaint fails to spell out any of the aforesaid ingredients noted above. We may only say, with a view to clear a serious misconception of law in the mind of the police as well as the courts below, that if it is a case of the complainant that offence of criminal breach of trust as defined under Section 405 I.P.C, punishable under Section 406 I.P.C, is committed by the accused, then in the same breath it cannot be said that the accused has also committed the offence of cheating as defined and explained in Section 415 I.P.C, punishable under Section 420 I.P.C.

41. 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.

43. 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.

55. 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 vis-a-vis 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 I.P.C (now B.N.S, 2023) are not twins that they cannot survive without each other."

4. It is further submitted that the complainant has also filed an original suit no. 1198 of 2023 on 11.12.2023 for cancellation of the sale deed after the lodging of the F.I.R against the purchaser Raksharam Rajbhar against whom, no F.I.R has been lodged by the respondent no. 2 by taking total different grounds that the applicant had agreed to sell 0.0625 hectares out of 0.1250 hectares on a consideration of Rs. 15 lakhs, which she had received but the purchaser Raksharam Rajbhar fraudulently got the sale deed of

0.0625 hectares executed, so in the F.I.R and subsequently in the suit for cancellation of sale deed, different grounds have been taken. He further submitted that the dispute is purely civil in nature, which has been given a criminal colour. In support of his submission, learned counsel for the applicant has relied upon the judgment of the Hon'ble Supreme Court in the case of Paramjeet Batra vs. State of Uttrakhand (2013) 11 SCC 673; Randheer Singh Vs. State of U.P. (2021) 14 SCC 626; State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335. 5. Learned A.G.A. has vehemently opposed the application but unable to dispute the settled proposition of law as relied upon by the learned counsel for the applicant i.e. the Section 406 I.P.C and Section 420 I.P.C cannot be proceeded with simultaneously.

6. The matter requires consideration.

7. Issue notice to the respondent no. 2.

8. Steps be taken within seven days.

9. List this case in the second week of July, 2025.

10. Office is directed to submit service report by the next date of listing.

11. Till the next date of listing, no coercive action shall be taken against the applicant. Order Date :- 1.5.2025 DiVYa

2. The brief facts of the case are that an F.I.R dated 27.07.2023 has been lodged by the respondent no. 2 against the four named accused persons including the present applicant i.e Virendra Kumar, alleging therein that the respondent no. 2/complainant had executed a sale deed of 5 biswa land in favour of one Shri Raksharam Rajbhar on the consideration of Rs. 30 lakhs, Rs. 14 lakhs has been received through RTGS and cheque respectively and Rs. 16 lakhs were given by Shri Raksharam Rajbhar to the husband of the complainant in cash, which has fraudulently been taken away by the accused persons.

3. Learned counsel for the applicant has submitted that the charge sheet against the applicant has been filed under sections 420, 406, 504 & 506 I.P.C and the concerned court has taken cognizance and issued summon against the applicant without application of mind. As per the proposition of law settled by Hon'ble Supreme Court in the case of Delhi Race Club (1940) Ltd. and others vs. State of Uttar Pradesh and another reported in 2024 10 SCC 690, Sections 406 and 420 I.P.C cannot go in the same breath. The relevant portion of the said judgment is being reproduced hereinbelow:- "38. In our view, the plain reading of the complaint fails to spell out any of the aforesaid ingredients noted above. We may only say, with a view to clear a serious misconception of law in the mind of the police as well as the courts below, that if it is a case of the complainant that offence of criminal breach of trust as defined under Section 405 I.P.C, punishable under Section 406 I.P.C, is committed by the accused, then in the same breath it cannot be said that the accused has also committed the offence of cheating as defined and explained in Section 415 I.P.C, punishable under Section 420 I.P.C.

41. 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.

43. 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.

55. 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 vis-a-vis 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 I.P.C (now B.N.S, 2023) are not twins that they cannot survive without each other."

4. It is further submitted that the complainant has also filed an original suit no. 1198 of 2023 on 11.12.2023 for cancellation of the sale deed after the lodging of the F.I.R against the purchaser Raksharam Rajbhar against whom, no F.I.R has been lodged by the respondent no. 2 by taking total different grounds that the applicant had agreed to sell 0.0625 hectares out of 0.1250 hectares on a consideration of Rs. 15 lakhs, which she had received but the purchaser Raksharam Rajbhar fraudulently got the sale deed of

0.0625 hectares executed, so in the F.I.R and subsequently in the suit for cancellation of sale deed, different grounds have been taken. He further submitted that the dispute is purely civil in nature, which has been given a criminal colour. In support of his submission, learned counsel for the applicant has relied upon the judgment of the Hon'ble Supreme Court in the case of Paramjeet Batra vs. State of Uttrakhand (2013) 11 SCC 673; Randheer Singh Vs. State of U.P. (2021) 14 SCC 626; State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335. 5. Learned A.G.A. has vehemently opposed the application but unable to dispute the settled proposition of law as relied upon by the learned counsel for the applicant i.e. the Section 406 I.P.C and Section 420 I.P.C cannot be proceeded with simultaneously.

6. The matter requires consideration.

7. Issue notice to the respondent no. 2.

8. Steps be taken within seven days.

9. List this case in the second week of July, 2025.

10. Office is directed to submit service report by the next date of listing.

11. Till the next date of listing, no coercive action shall be taken against the applicant. Order Date :- 1.5.2025 DiVYa