Asha Devi v. State of U.P. Thru. Prin. Secy. Deptt. Home Govt. of U.P. Lko. and Another

Court No. - 13 Case :- APPLICATION U/S 482 No. - 10852 of 2024 Applicant :- Asha Devi Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Home Govt. Of U.P. Lko. And Another Counsel for Applicant :- Anuj Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Singh,J.

¶1Heard.

¶2The instant application has been filed by the applicant with prayer to quash the entire criminal proceeding as well as the impugned summoning order dated 12.04.2024 passed by learned Chief Judicial Magistrate, Ambedkar Nagar in Crl. Case No. 4019 of 2024 (State vs. Asha Devi and others) arising out of Case Crime No. 356 of 2022 under Sections 406, 420 I.P.C., Police Station-Baskhari, District-Ambedkar Nagar; to quash the charge-sheet no.A-105 of 2023 dated

24.05.2023 filed by the Investigating Officer in Case Crime No. 356 of 2022.

¶3Learned counsel for the applicant submits that prosecution in question has been initiated in the most malicious manner. The investigating Officer has also failed to consider the evidence provided by the applicant and then charge-sheet was filed by him under Sections 406 and 420 I.P.C. Relying on the decision of Hon'ble Apex Court passed in the case of Delhi Race Club (1940) Ltd. and Ors. Vs. State of U.P. and Anr. reported in (2024) SCC OnLine SC 2248, learned counsel for the applicant further submits that trial of two offenses committed under Sections 406 and 420 I.P.C. cannot run collectively.

¶4Learned counsel for the applicant has also relied on the order dated

31.08.2024 passed by this Court in Application U/S 482 Cr.P.C. No. 23104 of 2024, which is reproduced as under:- "1. Heard Sri Anil Babu, learned counsel for applicants and Sri Alok Sharma, learned AGA for State.

¶2At the outset, learned counsel for applicants submit that offences under Section 406 and 420 could not go together and further refers that facts of present case are squarely covered from a judgment passed by Supreme Court in Delhi Race Club (1940) Ltd. and Ors. Vs. State of U.P. and Anr., 2024 SCC OnLine SC 2248, in favour of the applicants as well as dispute was arising out of a financial dispute. He further submits that appropriate remedy was available to opposite party-2 to file an application under Section 138 NI Act, however, said remedy was not taken by him and after 4 years, said complaint was filed wherein applicants have been summoned.

¶3Learned AGA fairly submits that Sections 406 and 420 I.P.C. could not go together.

¶4In the aforesaid circumstances, I find merit in the argument of learned counsel for applicants that case of applicants are squarely covered from Delhi Race Club (supra) and also find merit that appropriate remedy available i.e. for filing of proceedings under N.I. Act should have taken by complainant, however, he has not availed it and approached trial Court after 4 years. Relevant paragraphs of above referred judgment are reproduced hereinafter :- "41. Before we close this matter, we would like to say something as regards the casual approach of the courts below in cases like the one at hand. The Penal Code, 1860 (IPC) was the official Criminal Code in the Republic of India inherited from the British India after independence. The IPC came into force in the sub-continent during the British rule in 1862. The IPC remained in force for almost a period of 162 years until it was repealed and replaced by the Bharatiya Nyaya Sanhita ("BNS") in December 2023 which came into effect on 1st July 2024. It is indeed very sad to note that even after these many years, the courts have not been able to understand the fine distinction between criminal breach of trust and cheating.

¶42When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police - to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.

¶43It 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 viz-a-viz 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 the IPC (now BNS, 2023) are not twins that they cannot survive without each other."

¶5In the aforesaid circumstances, taking note of above submissions of learned counsel for applicants and above referred paragraphs of Delhi Race Club (supra), this Court is of considered opinion that both Sections 420 and 406 I.P.C. cannot run together, therefore, impugned order dated 28.07.2023 passed in Complaint Case No. 16876/2023 (M/s Karigar Workshop vs. M/s Deepak Automobile and others), under Sections 406, 420 I.P.C. Police Station-Kharkhauda, Disrict-Meerut, pending before Additional Chief Judicial Magistrate, Meerut is set aside and matter is remitted back to trial Court to pass fresh order in accordance with law.

¶6With aforesaid observations, this application is disposed of."

¶5Learned A.G.A. vehemently opposes the prayer of the applicant and submits that all these arguments can be raised at the appropriate stage. However, he does not dispute the fact on legal pronouncement of Hon'ble Apex Court in the case of Delhi Race Club (supra).

¶6In the aforesaid circumstances, I find merit in the argument of learned counsel for applicant that case of applicant is squarely covered from Delhi Race Club (supra) and also find merit that appropriate remedy available i.e. for filing of proceedings under N.I. Act should have taken by complainant, however, he has not availed it and then approached learned trial Court. Relevant paragraphs of above referred judgment are reproduced hereinafter :- "41. Before we close this matter, we would like to say something as regards the casual approach of the courts below in cases like the one at hand. The Penal Code, 1860 (IPC) was the official Criminal Code in the Republic of India inherited from the British India after independence. The IPC came into force in the sub-continent during the British rule in 1862. The IPC remained in force for almost a period of 162 years until it was repealed and replaced by the Bharatiya Nyaya Sanhita ("BNS") in December 2023 which came into effect on 1st July 2024. It is indeed very sad to note that even after these many years, the courts have not been able to understand the fine distinction between criminal breach of trust and cheating.

¶42When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police - to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.

¶43It 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 viz-a-viz 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 the IPC (now BNS, 2023) are not twins that they cannot survive without each other."

¶7In the aforesaid circumstances, taking note of above submissions of learned counsel for applicant and above referred paragraphs of Delhi Race Club (supra), this Court is of considered opinion that both Sections 420 and 406 I.P.C. cannot run together. Therefore, the impugned summoning order dated 12.04.2024 passed by learned Chief Judicial Magistrate, Ambedkar Nagar in Crl. Case No. 4019 of 2024 (State vs. Asha Devi and others) is hereby set aside and matter is remitted back to learned trial Court to pass fresh order in accordance with law.

¶8With aforesaid observations, this application is disposed of. Order Date :- 5.12.2024 Arpan High Court of Judicature at Allahabad, Lucknow Bench