Ram Singh Yadav v. State Of U.P. Thru. Prin. Secy. Home Lko And Another

"Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material placed on record. The instant application under section 482 Cr.P.C./528 of the B.N.S.S., 2023, has been filed with the prayer to quash or set aside the impugned summoning order dated 24-09-2021, under sections 406, 420 of I.P.C., passed by the learned court of Additional Chief Judicial Magistrate, Room No. 6, District-Lucknow as well as the Chargesheet dated 03-08-2021 as contained in Annexure No.1 filed in Case Crime No. 0289 of 2021, under sections 406 and 420 of I.P.C. It is argued by the learned counsel for the applicants that the applicants are innocent and have falsely been implicated in the instant matter. She added that the first information report is lodged while alleging that by preparing the forged documents, the money deposited by the informant, has fraudulently been misappropriated. She submits that from bare perusal of the first information report and the allegations thereof, it is evident that the intention of fraud was on very inception and therefore, there could have been no offence regarding breach of trust. She submits that the learned trial court while taking cognizance as well as issuing process, has ignored the well settled proposition of law that the matter cannot proceed in both the offences under sections 406 & 420 of the I.P.C.; simultaneously. In support of her contentions, she has placed reliance on the Judgment of the 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) 8 S.C.R. 670 and has referred paragraph no. 30 of the aforesaid Judgment, which is quoted hereinunder :- 2 A482 No. 7045 of 2025 "30. 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." Referring the aforesaid, she submits that the case of the present applicants is squarely covered with the ratio of Judgment abovesaid as is apparent that the fraudulent intent is appearing in the very inception. She submits that the whole proceedings started from cognizance to issuance of process, vitiates in the eyes of law and therefore, allowing further criminal proceedings in this matter, would be abuse of process of law and therefore, submission is that the impugned order may be set aside. On the other hand, learned counsel appearing for the State, though has opposed the matter, but, he could not dispute the settled law rendered in case of Delhi Race Club(1940) Ltd.(Supra). Considering the submissions of learned counsel for the parties and after perusal of the record, particularly, what is apparent in the first information report that the content of fraud is seen at very first stage, though, the learned trial court has taken cognizance under sections 406 & 420 of the I.P.C., simultaneously. This court finds that the case of the present applicant is squarely covered with the ratio of the Judgment of the Hon'ble Apex Court in the case of Delhi Race Club(1940) Ltd.(Supra). Resultantly, the impugned order dated 24-09-2021, is hereby set aside. The matter is remitted back to the learned trial court concerned to proceed afresh and pass an order considering the settled proposition of law in the case of Delhi Race Club(1940) Ltd.(Supra). This application is hereby allowed accordingly."

2. Learned counsel appearing for the applicant is claiming the same relief to which the counsel for the State could not dispute. 3 A482 No. 7045 of 2025

3. In view of the aforesaid, let notice be issued to opposite party no. 2, returnable at an early date.

4. Steps be taken within a week.

5. If steps are taken, office shall proceed accordingly.

6. List/put up this matter alongwith application u/s 482 no. 6454 of 2025.

7. In the meantime, the State as well as opposite party no. 2 may file their counter affidavits.

8. The interim relief granted in favour of the applicants in application u/s 482 no. 6454 of 2025 shall also be available to the present applicant. August 27, 2025 Mayank (Shree Prakash Singh,J.)

"Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material placed on record. The instant application under section 482 Cr.P.C./528 of the B.N.S.S., 2023, has been filed with the prayer to quash or set aside the impugned summoning order dated 24-09-2021, under sections 406, 420 of I.P.C., passed by the learned court of Additional Chief Judicial Magistrate, Room No. 6, District-Lucknow as well as the Chargesheet dated 03-08-2021 as contained in Annexure No.1 filed in Case Crime No. 0289 of 2021, under sections 406 and 420 of I.P.C. It is argued by the learned counsel for the applicants that the applicants are innocent and have falsely been implicated in the instant matter. She added that the first information report is lodged while alleging that by preparing the forged documents, the money deposited by the informant, has fraudulently been misappropriated. She submits that from bare perusal of the first information report and the allegations thereof, it is evident that the intention of fraud was on very inception and therefore, there could have been no offence regarding breach of trust. She submits that the learned trial court while taking cognizance as well as issuing process, has ignored the well settled proposition of law that the matter cannot proceed in both the offences under sections 406 & 420 of the I.P.C.; simultaneously. In support of her contentions, she has placed reliance on the Judgment of the 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) 8 S.C.R. 670 and has referred paragraph no. 30 of the aforesaid Judgment, which is quoted hereinunder :- 2 A482 No. 7045 of 2025 "30. 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." Referring the aforesaid, she submits that the case of the present applicants is squarely covered with the ratio of Judgment abovesaid as is apparent that the fraudulent intent is appearing in the very inception. She submits that the whole proceedings started from cognizance to issuance of process, vitiates in the eyes of law and therefore, allowing further criminal proceedings in this matter, would be abuse of process of law and therefore, submission is that the impugned order may be set aside. On the other hand, learned counsel appearing for the State, though has opposed the matter, but, he could not dispute the settled law rendered in case of Delhi Race Club(1940) Ltd.(Supra). Considering the submissions of learned counsel for the parties and after perusal of the record, particularly, what is apparent in the first information report that the content of fraud is seen at very first stage, though, the learned trial court has taken cognizance under sections 406 & 420 of the I.P.C., simultaneously. This court finds that the case of the present applicant is squarely covered with the ratio of the Judgment of the Hon'ble Apex Court in the case of Delhi Race Club(1940) Ltd.(Supra). Resultantly, the impugned order dated 24-09-2021, is hereby set aside. The matter is remitted back to the learned trial court concerned to proceed afresh and pass an order considering the settled proposition of law in the case of Delhi Race Club(1940) Ltd.(Supra). This application is hereby allowed accordingly."

2. Learned counsel appearing for the applicant is claiming the same relief to which the counsel for the State could not dispute. 3 A482 No. 7045 of 2025

3. In view of the aforesaid, let notice be issued to opposite party no. 2, returnable at an early date.

4. Steps be taken within a week.

5. If steps are taken, office shall proceed accordingly.

6. List/put up this matter alongwith application u/s 482 no. 6454 of 2025.

7. In the meantime, the State as well as opposite party no. 2 may file their counter affidavits.

8. The interim relief granted in favour of the applicants in application u/s 482 no. 6454 of 2025 shall also be available to the present applicant. August 27, 2025 Mayank (Shree Prakash Singh,J.)