Barabanki (State v. Atul Verma and others, is pending, before

3. The brief facts of the present case are that on 29.05.2022, an FIR has been lodged under Sections 419, 420, 406, 504 and 506 IPC Police Station Masauli District Barabanki by the respondent no. 2 against the five named accused persons alleging therein that despite payment of regular installments, the accused persons have not executed the sale deed in her favour. When she approached the applicant, who is Field Manager in the Company, he misbehaved with her and refused to execute the sale deed in her favour and informed her that all the plots have been sold out and threatened for her life. The Police after investigation has filed the charge-sheet under Sections 406 and 420 IPC and court concerned has taken cognizance and issued the summons against the applicant. Feeling aggrieved by the same, the present case has been filed by the applicant before this Court.

4. Learned counsel for the applicant has submitted that since the charge-sheet has been filed against the applicant under Sections 406 and 420 I.P.C., it is not permissible as per the law propounded 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 wherein it has been held that both the sections can not go in same breath.

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 IPC and Section 420 IPC cannot be proceeded with simultaneously.

6. Instant 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, proceedings of Criminal Case No. 2030 of 2022 pending before the Civil Judge (S.D)/FTC, Court No. 38, Barabanki as far as it is related to the present applicant shall remain stayed.

12. It is noteworthy to find that this Court comes across number of applications under Section 482 Cr.P.C./528 B.N.S.S. every day challenging the charge sheet filed by the Investigating Officer under Sections 406 and 420 Indian Penal Code despite the decision of Hon'ble Supreme Court as well as this Court holding that filing of charge-sheet under sections 406 and 420 IPC together is not permissible under the law. The judgment whereby the practice of filing charge-sheet under Sections 420 and 406 I.P.C. together has been deprecated by Hon'ble Supreme Court is Delhi Race Club (supra). Relevant excerpts of the same is being reproduced hereinbelow for convenience:- "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 415 IPC, 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-à-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."

13. Perusal of para no. 55 of the said judgment reveals that Hon'ble Supreme Court has observed in its order that 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 even then, the charge-sheets are being filed indiscriminately in rampant manner ignoring the proposition of law laid down by Hon'ble Supreme Court in the case of Delhi Race Club (supra).

14. Let a copy of this order annexing therewith the copy of judgment rendered by Hon'ble Supreme Court in the case of Delhi Race Club (supra) be provided to the Director General of Police and Additional Director General of Police (Law & Order) to look into the matter and take requisite steps to ensure that during the investigation, if a charge-sheet is to be filed where the FIR has been filed under both the sections i.e. 406 and 420 IPC, the charge-sheet may be filed in either of the two sections in place of filing in both the sections.

15. It is also seen that the court concerned without application of mind are taking cognizance on the charge-sheets filed under both the Sections 406 and 420 IPC and issuing summoning orders closing its eyes, which is in contravention of law settled by Hon'ble Supreme Court in the case of Delhi Race Club (supra).

16. Judicial Officers are required to follow the law laid down by Hon'ble Supreme Court and not to pass any order in violation of the law laid down by Hon'ble Supreme Court.

17. Due to lapses on the part of the investigating officer and the court concerned, this Court is overburdened with the unnecessary litigation filed under Section 482 Cr.P.C./Section 528 B.N.S.S.

18. Registrar General of this Court is directed to circulate this order accompanying with the copy of judgment and order passed by Hon'ble Supreme Court in the case of Delhi Race Club (supra) to the District Judges of the State of U.P. in order to apprise the Judicial Officers to adhere to the law laid down by Hon'ble Supreme Court. It would also be communicated to the Director General of Police, U.P. to circulate it amongst the Police officials to ensure the compliance of directions issued by this Court as well as Hon'ble Supreme Court in the case of Delhi Race Club (supra). Order Date :- 22.5.2025 Ashish

3. The brief facts of the present case are that on 29.05.2022, an FIR has been lodged under Sections 419, 420, 406, 504 and 506 IPC Police Station Masauli District Barabanki by the respondent no. 2 against the five named accused persons alleging therein that despite payment of regular installments, the accused persons have not executed the sale deed in her favour. When she approached the applicant, who is Field Manager in the Company, he misbehaved with her and refused to execute the sale deed in her favour and informed her that all the plots have been sold out and threatened for her life. The Police after investigation has filed the charge-sheet under Sections 406 and 420 IPC and court concerned has taken cognizance and issued the summons against the applicant. Feeling aggrieved by the same, the present case has been filed by the applicant before this Court.

4. Learned counsel for the applicant has submitted that since the charge-sheet has been filed against the applicant under Sections 406 and 420 I.P.C., it is not permissible as per the law propounded 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 wherein it has been held that both the sections can not go in same breath.

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 IPC and Section 420 IPC cannot be proceeded with simultaneously.

6. Instant 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, proceedings of Criminal Case No. 2030 of 2022 pending before the Civil Judge (S.D)/FTC, Court No. 38, Barabanki as far as it is related to the present applicant shall remain stayed.

12. It is noteworthy to find that this Court comes across number of applications under Section 482 Cr.P.C./528 B.N.S.S. every day challenging the charge sheet filed by the Investigating Officer under Sections 406 and 420 Indian Penal Code despite the decision of Hon'ble Supreme Court as well as this Court holding that filing of charge-sheet under sections 406 and 420 IPC together is not permissible under the law. The judgment whereby the practice of filing charge-sheet under Sections 420 and 406 I.P.C. together has been deprecated by Hon'ble Supreme Court is Delhi Race Club (supra). Relevant excerpts of the same is being reproduced hereinbelow for convenience:- "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 415 IPC, 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-à-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."

13. Perusal of para no. 55 of the said judgment reveals that Hon'ble Supreme Court has observed in its order that 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 even then, the charge-sheets are being filed indiscriminately in rampant manner ignoring the proposition of law laid down by Hon'ble Supreme Court in the case of Delhi Race Club (supra).

14. Let a copy of this order annexing therewith the copy of judgment rendered by Hon'ble Supreme Court in the case of Delhi Race Club (supra) be provided to the Director General of Police and Additional Director General of Police (Law & Order) to look into the matter and take requisite steps to ensure that during the investigation, if a charge-sheet is to be filed where the FIR has been filed under both the sections i.e. 406 and 420 IPC, the charge-sheet may be filed in either of the two sections in place of filing in both the sections.

15. It is also seen that the court concerned without application of mind are taking cognizance on the charge-sheets filed under both the Sections 406 and 420 IPC and issuing summoning orders closing its eyes, which is in contravention of law settled by Hon'ble Supreme Court in the case of Delhi Race Club (supra).

16. Judicial Officers are required to follow the law laid down by Hon'ble Supreme Court and not to pass any order in violation of the law laid down by Hon'ble Supreme Court.

17. Due to lapses on the part of the investigating officer and the court concerned, this Court is overburdened with the unnecessary litigation filed under Section 482 Cr.P.C./Section 528 B.N.S.S.

18. Registrar General of this Court is directed to circulate this order accompanying with the copy of judgment and order passed by Hon'ble Supreme Court in the case of Delhi Race Club (supra) to the District Judges of the State of U.P. in order to apprise the Judicial Officers to adhere to the law laid down by Hon'ble Supreme Court. It would also be communicated to the Director General of Police, U.P. to circulate it amongst the Police officials to ensure the compliance of directions issued by this Court as well as Hon'ble Supreme Court in the case of Delhi Race Club (supra). Order Date :- 22.5.2025 Ashish