High Court · 2025
Case Details
Acts & Sections
Cited in this judgment
this Court in Bail Application No.7263 of 2025, after hearing submissions of the complainant.
9. The F.I.R. includes allegation of commission of offences under Sections 409 and 420 I.P.C., which are as follows: -"409. Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. * * *
420. Cheating and dishonestly inducing delivery of property. —Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
10. There is no allegation that the accused persons had been entrusted with any property, or with any dominion over property in their capacity of a public servant or in the way of their business as a banker, merchant, factor, broker, attorney or agent and apparently, Section 409 I.P.C. is not attracted in the present case. It appears that Section 409 IPC has been mentioned in the F.I.R. only to portray the offences as more grave and serious, as it carries the punishment of imprisonment upto life whereas the offence punishable under Section 420 carries a maximum sentence of imprisonment which may extend upto seven years only.
11. As the allegations make in the F.I.R. do not make out commission of the offence under Section 409 I.P.C. and the same only make out a case of commission of the offence punishable under Section 420 I.P.C., the accused persons ought not to have been arrested in the present case.
12. In Delhi Race Club (1940) Ltd. v. State of U.P.: (2024) 10 SCC 690, the Hon'ble Supreme Court has held that: - "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."
13. Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the sale deed in question was registered on 23.04.2019; that it is recorded in the sale deed that possession of land was delivered to the purchaser that the F.I.R. has been lodged about 6 years, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail in the aforesaid crime.
14. Accordingly, this bail application stands allowed.
15. Let the applicant- Pramod Kumar Upadhyay be released on bail in the aforementioned case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of Magistrate/Court concerned, subject to following conditions:- (i) the applicant shall not tamper with the prosecution evidence; (ii) the applicant shall not pressurize the prosecution witnesses; (iii) the applicant shall appear on each and every date fixed by the trial Court. . Order Date :- 19.8.2025 Ankit [Subhash Vidyarthi, J.] ANKIT SHARMA High Court of Judicature at Allahabad, Lucknow Bench
this Court in Bail Application No.7263 of 2025, after hearing submissions of the complainant.
9. The F.I.R. includes allegation of commission of offences under Sections 409 and 420 I.P.C., which are as follows: -"409. Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. * * *
420. Cheating and dishonestly inducing delivery of property. —Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
10. There is no allegation that the accused persons had been entrusted with any property, or with any dominion over property in their capacity of a public servant or in the way of their business as a banker, merchant, factor, broker, attorney or agent and apparently, Section 409 I.P.C. is not attracted in the present case. It appears that Section 409 IPC has been mentioned in the F.I.R. only to portray the offences as more grave and serious, as it carries the punishment of imprisonment upto life whereas the offence punishable under Section 420 carries a maximum sentence of imprisonment which may extend upto seven years only.
11. As the allegations make in the F.I.R. do not make out commission of the offence under Section 409 I.P.C. and the same only make out a case of commission of the offence punishable under Section 420 I.P.C., the accused persons ought not to have been arrested in the present case.
12. In Delhi Race Club (1940) Ltd. v. State of U.P.: (2024) 10 SCC 690, the Hon'ble Supreme Court has held that: - "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."
13. Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the sale deed in question was registered on 23.04.2019; that it is recorded in the sale deed that possession of land was delivered to the purchaser that the F.I.R. has been lodged about 6 years, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail in the aforesaid crime.
14. Accordingly, this bail application stands allowed.
15. Let the applicant- Pramod Kumar Upadhyay be released on bail in the aforementioned case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of Magistrate/Court concerned, subject to following conditions:- (i) the applicant shall not tamper with the prosecution evidence; (ii) the applicant shall not pressurize the prosecution witnesses; (iii) the applicant shall appear on each and every date fixed by the trial Court. . Order Date :- 19.8.2025 Ankit [Subhash Vidyarthi, J.] ANKIT SHARMA High Court of Judicature at Allahabad, Lucknow Bench