The offences under Sections 420 and 406 IPC are independent and cannot coexist based on the same set of facts, necessitating careful examination by the magistrate.

Hon'ble Raj Beer Singh,J.

1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material brought on record. None has appeared on behalf of opposite party no.2 despite service of notice.

2. This application under Section 482 Cr.P.C. has been preferred for quashing of order dated 08.08.2022, passed by the Additional Chief Judicial Magistrate, Court No.18, Etah in Complaint Case No. 1873 of 2017 (Chote Lal Vs. Gore Lal), under Sections - 420, 406 I.P.C., Police Station - Jaithra, District - Etah, whereby applicant has been summoned for offences under Section - 420, 406 I.P.C. The order dated 16.05.2024, passed by Additional District and Sessions Judge, Fast Tract Court-II, Etah in Criminal Revision No. 140 of 2023 (Gore Lal Vs. Chote Lal and Another), is also being impugned.

3. It is submitted by learned counsel for the applicant that no prima facie case is made out against applicant. The only allegation made by complainant/opposite party no.2 is that about two years back he has lended Rs. 50,000/- to the applicant and in order to repay the said amount, the applicant has issued a cheque, which was dishonored. It was submitted that the dispute between the parties is purely civil in nature. Instead of filing a case under section - 138 N.I. Act, the opposite party no.2 has lodged impugned complaint against applicant. Further, in view of the law laid down in the case of Delhi Race Club (1940) Ltd. & Ors. v. State of U.P. & Anr. 2024 0 Supreme(SC) 689, applicant cannot be prosecuted for both the offence under Sections - 420 and 406 I.P.C. simultaneously. Referring to facts of the matter, it was submitted that the impugned proceedings are malicious and thus, liable to be quashed.

4. Learned A.G.A. has opposed the application and submitted that in view of allegations made in the complaint and statement of complainant and of witnesses, a prima-facie case is made out against the applicant.

5. I have considered the rival submissions and perused the record.

6. In case of Delhi Race Club (supra), the Hon'ble Apex Court has held as under:-

"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.

42. When 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.

43. It 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 indepe