High Court

Heard learned counsel for the applicant and learned AGA for the State as well as perused the record. Present case has been preferred under Section 482 Cr.P.C./528 B.N.S.S. with following main prayer:- "That in view of the facts, circumstances and reasons stated in the accompanying affidavit, It is most respectfully prayed that the Hon'ble Court may kindly be pleased to set-aside the impugned chargesheet dated 13.07.2024 U/s- 406, 420, 504, 506 IPC, P.S.-Madiyawan, District- Lucknow arising out of Crime no. 298/2023 U/s- 406, 420, 504, 506 IPC and impugned summoning order dated 01.02.2025 passed in Crime No. 298/2023 U/s- 406, 420, 504, 506 IPC, P.S. Madiyawan, District- Lucknow by Judicial Magistrate, III, Lucknow as well as entire proceeding of Case Crime no. 298 of 2023, State Vs. Abhishek Soni in the interest of justice. Further be pleased to stay the further proceeding of Case Crime no. 298/2023 U/s- 406, 420, 504, 506 IPC pending before Judicial Magistrate, III, Lucknow, during pendency of the present application under section 428 Cr.P.C. readwith Section 528 of The Bhartiya Nagrik Suraksha Sanhita, (B.N.S.S.), 2023 in the interest of justice." The brief facts of the present case are that an FIR dated 30.6.2023 has been lodged by respondent no. 2 against the applicant and another person namely, Vineet Kumar alleging therein that the applicant, who is a loan agent, had taken the complainant to the Bank for the purposes of financing of an Apple iPhone 13 mobile and after purchase of the mobile phone, he requested the complainant to give him the mobile phone for some time. Thereafter, the applicant again financed Wagon-R vehicle through the complainant and took the delivery of the vehicle and the applicant requested the complainant to give him the vehicle for some time so as to he could go somewhere. Thereafter, he also took Rs. 11,000/- as loan from the complainant, but he is not returning the same. Learned counsel for the applicant has submitted that the police after investigation has filed the charge-sheet in all the Sections mentioned in the FIR except Section 120-B IPC and dropped the name of another accused namely, Vineet Kumar. The court below has taken cognizance and issued summons against the applicant without application of mind as the charge-sheet against the applicant has been filed under Sections 406 and 420 IPC, which cannot go in the same breath 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. 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 405IPC, punishable under Section 406 IPC, 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 415IPC, punishable under Section 420IPC.

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 IPC (now BNS, 2023) are not twins that they cannot survive without each other." 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 Sections 406 IPC and Section 420 IPC cannot be proceeded with simultaneously. The matter requires consideration. Issue notice to the respondent no. 2. Steps be taken within a week. List this case in the second week of July, 2025 amongst top ten cases. Till the next date of listing, the proceedings arising out of Case Crime no. 298 of 2023, under Sections 406, 420, 504, 506 IPC, P.S.- Madiyawan, District- Lucknow pending in the court of Judicial Magistrate, III, Lucknow shall remain stayed as far as it is related with the present applicant. Order Date :- 15.5.2025 Shravan

Heard learned counsel for the applicant and learned AGA for the State as well as perused the record. Present case has been preferred under Section 482 Cr.P.C./528 B.N.S.S. with following main prayer:- "That in view of the facts, circumstances and reasons stated in the accompanying affidavit, It is most respectfully prayed that the Hon'ble Court may kindly be pleased to set-aside the impugned chargesheet dated 13.07.2024 U/s- 406, 420, 504, 506 IPC, P.S.-Madiyawan, District- Lucknow arising out of Crime no. 298/2023 U/s- 406, 420, 504, 506 IPC and impugned summoning order dated 01.02.2025 passed in Crime No. 298/2023 U/s- 406, 420, 504, 506 IPC, P.S. Madiyawan, District- Lucknow by Judicial Magistrate, III, Lucknow as well as entire proceeding of Case Crime no. 298 of 2023, State Vs. Abhishek Soni in the interest of justice. Further be pleased to stay the further proceeding of Case Crime no. 298/2023 U/s- 406, 420, 504, 506 IPC pending before Judicial Magistrate, III, Lucknow, during pendency of the present application under section 428 Cr.P.C. readwith Section 528 of The Bhartiya Nagrik Suraksha Sanhita, (B.N.S.S.), 2023 in the interest of justice." The brief facts of the present case are that an FIR dated 30.6.2023 has been lodged by respondent no. 2 against the applicant and another person namely, Vineet Kumar alleging therein that the applicant, who is a loan agent, had taken the complainant to the Bank for the purposes of financing of an Apple iPhone 13 mobile and after purchase of the mobile phone, he requested the complainant to give him the mobile phone for some time. Thereafter, the applicant again financed Wagon-R vehicle through the complainant and took the delivery of the vehicle and the applicant requested the complainant to give him the vehicle for some time so as to he could go somewhere. Thereafter, he also took Rs. 11,000/- as loan from the complainant, but he is not returning the same. Learned counsel for the applicant has submitted that the police after investigation has filed the charge-sheet in all the Sections mentioned in the FIR except Section 120-B IPC and dropped the name of another accused namely, Vineet Kumar. The court below has taken cognizance and issued summons against the applicant without application of mind as the charge-sheet against the applicant has been filed under Sections 406 and 420 IPC, which cannot go in the same breath 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. 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 405IPC, punishable under Section 406 IPC, 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 415IPC, punishable under Section 420IPC.

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 IPC (now BNS, 2023) are not twins that they cannot survive without each other." 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 Sections 406 IPC and Section 420 IPC cannot be proceeded with simultaneously. The matter requires consideration. Issue notice to the respondent no. 2. Steps be taken within a week. List this case in the second week of July, 2025 amongst top ten cases. Till the next date of listing, the proceedings arising out of Case Crime no. 298 of 2023, under Sections 406, 420, 504, 506 IPC, P.S.- Madiyawan, District- Lucknow pending in the court of Judicial Magistrate, III, Lucknow shall remain stayed as far as it is related with the present applicant. Order Date :- 15.5.2025 Shravan