Allahabad High Court
Manoj Singh vs State Of U.P. Thru. Prin. Secy. Home ... on 22 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:28598
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
APPLICATION U/S 482 No. - 6412 of 2025
Manoj Singh
.....Applicant(s)
Versus
State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Amrendra Nath Tripathi, Aditya Vikram Singh, Amar Singh, Manish Kumar Tripathi
Counsel for Opposite Party(s)
:
G.A., Vikrant Raghuvanshi
Court No. - 16
HON'BLE SHREE PRAKASH SINGH, J.
1. From perusal of the order-sheet, it transpires that the matter was referred to the Mediation and Conciliation Centre of this Court on 6th August, 2025. Thereafter, the parties appeared, however, the mediation has failed. The report dated 2nd September, 2025 submitted by the learned Mediator is on record.
2. Heard Mr. Amar Singh, learned counsel for the applicant, learned AGA for the State and Shri Vikrant Raghuvanshi, learned counsel for the opposite party no.2.
3. The present application has been filed with the prayer to quash the impugned chargesheet No. 01, dated 15.06.2024 arising out of Case Crime No. 0411 of 2023, under Sections 406, 420, 467, 468 and 471 of I.P.C., Police Station- Indira Nagar, District - Lucknow and the impugned summoning order dated 21.08.2024 passed by the Court of Additional Chief Judicial Magistrate (A.P.), Lucknow in Criminal Case No. 80026 of 2024 (State Vs. Manoj Singh).
4. Submission of learned counsel for the applicant is that, as per the allegations made in the First Information Report, the role attributed to the applicant is only that of a marginal witness to the sale deed, which is alleged to have been executed by a person, who was not the owner of the land in question. It is submitted that the applicant, in good faith, merely identified the vendor at the time of execution of the sale deed. He further submitted that the charge-sheet has been filed and the Magistrate has taken cognizance under Sections 406, 420, 467, 468 and 471 of the IPC, whereas per the law settled by the Hon?ble Supreme Court in Delhi Race Club (1940) Ltd. vs. State of U.P. reported in AIR OnLine 2024 SC 612, the criminal proceeding cannot run simultaneously for the offences under Sections 406 and 420 IPC. He further contended that the ingredients of Sections 420, 467, 468 and 471 IPC are not attracted in the present case, in view of the limited role assigned to the applicant, in the FIR and the statements of the witnesses.
5. Concluding his argument, he submitted that the cognizance and summoning order passed under the aforesaid offence is contrary to the settled proposition of law, therefore, the same is liable to be quashed.
6. Per contra, learned counsel for opposite party no.2 has opposed the submissions and contended that the applicant is not merely a marginal witness but is a property dealer who actively induced the complainant to purchase the land in question, despite having knowledge that the vendor was not the lawful owner. It is further submitted that during investigation, it has come to light that the sale consideration was initially credited to the account of the vendor and thereafter a portion of it was transferred to the account of the present applicant, which prima facie establishes his involvement in the alleged offence. It is thus submitted that no interference is warranted at this stage.
7. Learned AGA has also opposed the contention of the learned counsel for the applicant.
8. Upon hearing learned counsel for the parties and perusal of the record, it transpires that after lodging of the First Information Report, the Investigating Officer submitted charge-sheet under Sections 406, 420, 467, 468 and 471 IPC, upon which the Magistrate has taken cognizance and issued summons.
9. So far as the offence under Section 406 IPC is concerned, the same constitutes the criminal breach of trust, which is defined under Section 405 IPC. The scope and distinction between the offences under Sections 406 and 420 IPC have been considered by the Hon?ble Supreme Court in Delhi Race Club (1940) Ltd. (supra).
10. Sections 405 and 406 of IPC are read as under:
"405. Criminal breach of trust.?Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ?criminal breach of trust?.
1[2[Explanation 1].?A person, being an employer 3[of an establishment whether exempted under section 17 of the Employees? Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952) or not] who deducts the employee?s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] 4[Explanation 2.?A person, being an employer, who deducts the employees? contribution from the wages payable to the employee for credit to the Employees? State Insurance Fund held and administered by the Employees? State Insurance Corporation established under the Employees? State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]"
It has been held that both offences operate in distinct fields and cannot be applied mechanically without satisfying their respective ingredients.
Illustrations
(a) A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriates them to his own use. A has committed criminal breach of trust.
(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust.
(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.
(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company's paper, here, thought Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.
(e) A, a revenue-officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.
(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.
406. Punishment for criminal breach of trust.?Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
11. In the present case, from perusal of the FIR as well as the material collected during investigation, the role attributed to the applicant appears to be that of a marginal witness. There is no specific allegation that the applicant has committed any act of forgery or has fabricated any document. In absence of such material, the ingredients of offences under Sections 420, 467, 468 and 471 IPC do not prima facie appear to be made out against the applicant.
12. The offence under Section 406 of IPC would constitute once the ingredients as are mentioned in Section 405 IPC attract. So long as the present case is concerned, there is no any entrustment of any property or any dominion over property which is allegedly misappropriated or converted to the own use of the applicant.
13. For constituting offence of cheating, the charges of dishonest intention would be at the very inception of the transaction. Contrary, the criminal breach of trust constitutes once a person who comes into possession of a movable property, illegally retains or converts it to his own use against the terms of any contract. The criminal proceeding in offences under Sections 406 and 420 IPC cannot run simultaneously as is held by the Hon'ble Apex Court in the case of Delhi Race Club (supra).
14. Relevant paragraphs of the judgment are quoted hereinunder:-
"29. To put it in other words, the case of cheating and dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, a person who comes into possession of the movable property and receives it legally, but illegally retains it or converts it to his own use against the terms of the contract, then the question is, in a case like this, whether the retention is with dishonest intention or not, whether the retention involves criminal breach of trust or only a civil liability would depend upon the facts of each case.
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, ie. 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.
31. At the most, the court of the Additional Chief Judicial Magistrate could have issued process for the offence punishable under Section 420 of the IPC i.e. cheating but in any circumstances no case of criminal breach of trust is made out. The reason being that indisputably there is no entrustment of any property in the case at hand. It is not even the case of the complainant that any property was lawfully entrusted to the appellants and that the same has been dishonestly misappropriated. The case of the complainant is plain and simple. He says that the price of the goods sold by him has not been paid. Once there is a sale, Section 406 of the IPC goes out of picture. According to the complainant, the invoices raised by him were not cleared. No case worth the name of cheating is also made out.
32. Even if the Magistrate would have issued process for the offence punishable under Section 420 of the IPC, i.e., cheating the same would have been liable to be quashed and set aside, as none of the ingredients to constitute the offence of cheating are disclosed from the materials on record."
15. Thus, I am of the considered opinion that the criminal proceeding cannot be allowed to run for the offences under Sections 406 and 420 IPC simultaneously against the applicant as the same is held by the ratio of judgment of Delhi Race Club (supra).
16. Accordingly, this Court finds that the impugned summoning order dated 02.08.2024 is sustained, in the eyes of law.
17. Resultantly, the summoning order dated 21.08.2024 passed by the Court of Additional Chief Judicial Magistrate (A.P.), Lucknow in Criminal Case No. 80026 of 2024 (State Vs. Manoj Singh) is hereby set aside. The matter is remitted back to the trial court to pass a fresh order in accordance with law, in the light of the observations made hereinabove, within a period of eight weeks from the date of receiving the certified copy of this order.
18. The application is, accordingly, allowed.
(Shree Prakash Singh,J.) April 22, 2026 V. Sinha