The Allahabad High Court has clarified that taking cognizance simultaneously under two distinct offences i.e. cheating under Section 420 IPC and criminal breach of trust under Section 406 IPC on the same set of facts or transaction is contrary to law, as the two offences are inherently contradictory in nature.
The order was passed by a Single Judge Bench of Justice Saurabh Srivastava while hearing the application filed by Smt. Prabha Singh and another.
In the instant application filed under Section 528 BNSS, the applicants had challenged the charge-sheet as well as the cognizance order dated 28 January 2025 passed by the Additional Chief Judicial Magistrate, Gorakhpur, in a criminal case registered at Police Station Khorabar, district Gorakhpur, under Sections 406, 420, 467, 468, 471, 120B of the Indian Penal Code.
During the course of the hearing, on behalf of the applicants, Advocate Akshay Raghuvanshi relied on the Supreme Court judgment in Delhi Race Club (1940) Ltd. and others vs. State of Uttar Pradesh and another, wherein it was held that if the allegation constitutes criminal breach of trust, the offence of cheating cannot be alleged on the same facts.
Placing reliance on the said judgment, the High Court observed that for an offence under Section 420 IPC, a fraudulent or dishonest intention must exist from the very inception of the transaction, whereas an offence under Section 406 IPC is founded on lawful entrustment of property followed by its dishonest misappropriation. Since the essential ingredients of both offences are distinct and mutually exclusive, they cannot co-exist simultaneously.
As the State failed to effectively dispute this settled legal position, the Court held that the cognizance taken by the trial court under Sections 420 and 406 IPC together was legally unsustainable.
Accordingly, the High Court quashed the cognizance/summoning order dated 28 January 2025 passed by the Additional Chief Judicial Magistrate, Gorakhpur, and remitted the matter to the said court with a direction to pass a fresh order of cognizance, if required, strictly in accordance with the legal principles laid down by the Supreme Court.
Case: Smt. Prabha Singh And Another vs State of U.P. and Another
Date of Order: 06.01.2026
See Order: Smt. Prabha Singh And Another vs State of U.P. and Another
