# Vikash Kumar v. State of U.P. Opp. Party

- **Citation:** (2026) 3 ILRA 917
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-03-28
- **Case number:** Criminal Misc. Bail Application No. 1381 of 2026
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikash-kumar-v-state-of-u-p-opp-party-54331
- **Pages:** 5

## Text

3 All. Vikash Kumar Vs. State of U.P.
917
(2026) 3 ILRA 917
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2026

BEFORE

THE HON'BLE ARUN KUMAR SINGH DESHWAL, J.

Criminal Misc. Bail Application No. 1381 of 2026

Vikash Kumar ...Applicants
Versus
State of U.P. ...Opp. Party

ISSUE FOR CONSIDERATION
Whether simultaneous invocation of Sections 420 IPC (318(4) BNS) and 406 IPC (316(2) BNS) renders the
FIR/proceedings erroneous in light of Delhi Race Club judgment?

HEADNOTES
Criminal Law - Code of Criminal Procedure, 1973 - Section 221 - Bharatiya Nagarik Suraksha
Sanhita, 2023 - Section 244 - Indian Penal Code, 1860 - Sections 406, 420 - Bharatiya Nyaya
Sanhita, 2023 - Sections 316(2), 316(5), 318(4) : - Bail application - seeking bail - in case crime
arising of an FIR - alleged misappropriation of money collected from self-help group members - investigation -
victim statements - confirmed applicant's role - Applicant pleaded false implication, civil nature of dispute and
reliance placed on Delhi Race Club and Prantik Kumar, and parity with co-accused already on bail - Court
found specific allegations against applicant and noted his breach of undertaking to deposit money - court held
that, there is no bar for charging an accused under section 420 IPC (318-(4) BNS) and 406 IPC (316-(2) BNS)
where the fact creates doubt which offence is actually committed however, in present case simultaneous
invocation of offence of Cheating and criminal breach of trust is absolutely misconceived - Hence, applicant
not entitled to bail on parity or merits - consequently, bail application rejected.

Application Allowed. (E-11)

CASE LAW CITED
Prantik Kumar vs. State of Jharkhand (SLP (Crl.) Diary No. 4297 of 2026)
Delhi Race Club (1940) Ltd. vs. State of U.P. (AIR 2024 SC 4531)
Dr. Nallapareddy Sridhar Reddy vs. State of Andhra Pradesh (2020) 12 SCC 467

LIST OF ACTS
Bharatiya Nyaya Sanhita, 2023 - Indian Penal Code, 1860 - Code of Criminal Procedure, 1973 - Bharatiya
Nagarik Suraksha Sanhita, 2023.

LIST OF KEYWORDS
Bail application, misappropriation, self-help group, cheating, criminal breach of trust, parity, undertaking,
Section 221 Cr.P.C., simultaneous invocation, poor women depositors.

CASE ARISING FROM
Case Crime No. 130 of 2025, Police Station Purkaji, District Muzaffar Nagar

APPEARANCE OF PARTIES
Counsel for Appellant(s): - Shri Pramod Kumar,
918 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for Respondent(s): - Sri Bhupendra Pal Singh, learned A.G.A..

(Delivered by Hon'ble Arun Kumar Singh Deshwal, J.)

1. Heard Sri Pramod Kumar, learned counsel for the applicant, Sri Bhupendra Pal Singh,
learned A.G.A. for the State and perused the record.

2. Instant bail application has been filed with a prayer to release the applicant on bail during
the trial in Case Crime No. 130 of 2025, under Sections 316(2), 316(5), 318(4) BNS, Police
Station- Purkaji, District Muzaffar Nagar.

3. Contention of learned counsel for the applicant is that the applicant has been falsely
implicated in the present case though there is no material against him and entire allegations are
vague and incorrect. Learned counsel for the applicant further submitted that even if it is accepted
that the applicant did not deposit the money collected from members of self help group on behalf of
first informant's company, even then despite giving his undertaking dated 28.01.2026 to deposit
that amount, it is not necessary to return that amount. In support of his contention, learned counsel
for the applicant, relied upon the judgement of the Apex Court in Prantik Kumar vs. State of
Jharkhan (SLP (Crl.) Diary No. 4297 of 2026; wherein the Apex Court has observed that while
grating bail/anticipatory bail, Court should not pass a conditional order of deposit of a particular
amount and then exercise its jurisdiction.

4. Learned counsel for the applicant next submitted that in the present case, police invoked
Section 318(4) BNS corresponding Section 420 IPC as well as Section 316(2) BNS corresponding
Section 406 IPC, therefore, it is absolutely illegal and no offence can be said to be committed by
the applicant in view of the judgment of the Apex Court in Delhi Race Club (1940) Ltd. vs. State
of U.P. (AIR 2024 Supreme Court 4531). Learned counsel for the applicant has also submitted
that co-accused Rahul Kumar (collection agent) and Nakul Chauhan (not collecting agent) having
similar role to that of the applicant have been released on bail by co-ordinate Bench of this Court in
Criminal Misc. Bail Application No.44948 of 2025 and 215 of 2026, against whom there are
liability of Rs.55,372/- and Rs.167,000/- respectively. Therefore, the applicant is also entitled to be
released on bail on the ground of parity. It is lastly submitted that the applicant has no criminal
history and he is languishing in jail since 12.11.2025. In case, he is granted bail, he will not misuse
the liberty of bail and would cooperate in the trial proceedings.

5. On the other hand, learned A.G.A. for the State vehemently opposed the prayer for bail and
submitted that the applicant after collecting money of Rs. 2,11,353 from 33 women, who were
members of self help group sponsored by the first informant's company, instead of depositing the
same in the company of first informant, misappropriated the same, therefore, the applicant has
committed offence under Section 316(5) BNS which is punishable up to 10 years. He further
submitted that in view of Section 221 Cr.P.C., if a single act or series of acts is of such a nature that
it is doubtful which of several offences the facts which can be proved will constitute, the accused
may be charged with having committed all or any of such offences, and any number of such
charges may be tried at once; or he may be charged in the alternative with having committed some
one of the said offences. It is further submitted by learned AGA that illustrations (a) of Section 221
3 All. Vikash Kumar Vs. State of U.P.
919
Cr.P.C. (Section 244 of BNSS) when A is an accused of an act which may amount to theft, or
receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft,
receiving stolen property, criminal breach of trust and cheating, or he may be charged with having
committed theft, or receiving stolen property, or criminal breach of trust or cheating. Therefore, in
case of doubt, it is legally permissible that accused may be charged with Sections 420 (Section
318(4) BNS) and 406 IPC (Section 316 (2) BNS). Therefore the judgement of the Apex Court in
Delhi Race Club (supra) appears to be contrary to Section 221 Cr.P.C. (corresponding Section
244 BNSS).

6. Learned AGA also relied upon the judgement of the Apex Court in the case of Dr.
Nallapareddy Sridhar Reddy vs State of Andhra Pradesh; (2020) 12 SCC 467, wherein Apex
Court observed that where ingredients are attracted, Sections 420 and 406 IPC can be invoked
against the accused. Therefore, he is not entitled to be released on bail.

7. Upon considering the submissions of learned counsel for the parties, the legal question
arises whether invoking Section 420 IPC (corresponding Section 318(4) BNS) and 406 IPC
(Corresponding Section 316(2) BNS) simultaneously make the FIR or the proceeding erroneous in
view of the judgment of the Apex Court in Delhi Race Club (supra).

8. The Apex Court, in the case of Delhi Race Club (supra), while dealing with the
proceeding of complaint case, observed that for the case of cheating (Section 420 IPC
(corresponding Section 318(4) BNS) dishonest intention of an accused starts with the very
inception of transaction. While in case of breach of trust, a person who comes into possession of
movable property lawfully but subsequently retain it or convert for its own use against the term of
contract with dishonest intention. The Court further observed that before summoning a person in
complaint case, the court is required to apply his mind whether ingredients of criminal breach of
trust or cheating is made out. In case, transaction is purely civil in nature and there is no ingredients
of cheating or breach of trust then the proceeding of complaint case deserves to be quashed.
However, the Apex Court also observed that there is fine distinction between the mere breach of
contract and offence of criminal breach of trust and cheating, therefore, where there is only breach
of contract and proceeding for criminal breach of trust or cheating should not be allowed to
continue. At the end of concluding part, the Apex Court also observed that in Delhi Race Club
(supra), there is fine distinction between the offence of cheating and criminal breach of trust but
both the offences are independent and distinct, therefore, both the offences cannot co-exist
simultaneously in the same set of facts but Apex Court has not observed that even if the section for
criminal breach of trust and cheating have been simultaneously invoked then proceeding would be
erroneous.

9. Perusal of the judgement of Delhi Race Club (supra), it is clear that Section 221 Cr.P.C.
(corresponding Section 244 BNSS) has not been placed before the Hon'ble Apex Court by any of
the parties which permits the invocation of two sections simultaneously, where there is doubtful
what offence has been committed. Section 221 of Cr.P.C. (corresponding Section 244 BNSS) is
quoted as under;
920 INDIAN LAW REPORTS ALLAHABAD SERIES

"Section 221. Where it is doubtful what offence has been committed - (1) If a single act or
series of acts is of such a nature that it is doubtful which of several offences the facts which can be
proved will constitute, the accused may be charged with having committed all or any of such
offences, and any number of such charges may be tried at once; or he may be charged in the
alternative with having committed some one of the said offences.

(a) A is accused of an act which may amount to theft, or receiving stolen property, or
criminal breach of trust or cheating. He may be charged with theft, receiving stolen property,
criminal breach of trust and cheating, or he may be charged with having committed theft, or
receiving stolen property, or criminal breach of trust or cheating

(b) In the case mentioned, A is only charged with theft. It appears that he committed the
offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of
criminal breach of trust or of receiving stolen goods (as the case may be), though he was not
charged with such offence.

(c) A states on oath before the Magistrate that he saw B hit C with a club. Before the
Sessions Court A states on oath that B never hit C. A may be charged in the alternative and
convicted of intentionally giving false evidence, although it cannot be proved which of these
contradictory statements was false."

10. From perusal of Section 221 Cr.P.C. (244 BNSS) and its illustration (a), it is clear, if
single act or series of acts of such nature that it is doubtful which of several offences the facts
may attract, then the accused may be charged having committed of all or any of such offences
including Sections 420 IPC (318(4) BNS) and 406 IPC (316(2) BNS). Therefore, there is no
bar for charging an accused under Section 420 IPC (318(4) BNS) and 406 IPC (316(2) BNS)
where the fact creates doubt which offence is actually committed.

11. Therefore, in view of the above analysis, submission of counsel for the applicant in the
present case that the proceeding is erroneous for the reason that the offence of cheating and
criminal breach of trust simultaneously invoked, is absolutely misconceived.

12. Therefore, after considering the submissions of learned counsel for the parties and taking
into account the fact that initially applicant himself proposed to deposit the amount collected from
poor women (members of self help group) on behalf of first informant's company. Today he
refused to comply his undertaking dated 28.01.2026. Even otherwise, the poor women themselves
recorded their statements that it is applicant who collected the money from them on behalf of the
first informant's company but he did not deposit the same in the company, therefore, this Court is
not inclined to release the applicant on bail. So far as parity with co-accused Nakul Chauhan (not
collection agent) and Rahul Kumar (collection agent), who have been released on bail by coordinate Bench of this Court is concerned, from perusal of statement of victim girls Rubi, Laxmi,
Sahnaz, Samarjahan, Munifa, Nusarat, Rubi, Neelam, Anita, Sudesh, Sahnuma, Sufia, Sabia,
Rukhsar Bobby and Munni, it is clear that specific allegation has been made against the present
applicant but no such allegation has been made against co-accused Rahul Kumar (collection agent)
and Nakul Chauhan (not collection agent). Therefore, the applicant is not entitled to claim parity
with co-accused Rahul Kumar and Nakul Chauhan. Therefore, this Court is not inclined to accept
the contention of learned counsel for the applicant.
3 All. Rajesh Kumar Vs. Rakesh Kumar Sharma & Ors.
921

13. Accordingly, the present bail application is rejected.
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(2026) 3 ILRA 921
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 44 of 2026

Rajesh Kumar ...Appellant
Versus
Rakesh Kumar Sharma & Ors. ...Respondents

Issues for Consideration
(i) Whether, while deciding an application under Order VII Rule 11 CPC, the Court can consider the defence
taken by the defendant and the documents filed by him, or whether its scrutiny is confined only to the
averments contained in the plaint and the documents filed by the plaintiff?
(ii) Whether a suit seeking declaration that a Will is void, where the plaintiff pleads knowledge of the Will on a
particular date and institutes the suit within three years thereof, can be rejected at the threshold as barred by
limitation under Order VII Rule 11(d) CPC?
(iii) Whether alleged admissions contained in an objection filed to an application under Order VII Rule 11 CPC
can be relied upon for rejecting the plaint on the principles underlying Order VIII Rule 5 CPC or Order XII Rule
6 CPC?

Headnotes
Code of Civil Procedure, 1908 - O. VII r.11 - Rejection of plaint - Scope of enquiry -
Consideration of defence and documents filed by defendant - Permissibility:

Held: While deciding an application under Order VII Rule 11 CPC, the Court is required to confine itself to the
averments made in the plaint and the documents filed by the plaintiff. The written statement, defence set up
by the defendant, application filed by the defendant and documents relied upon by him are wholly irrelevant
for deciding whether the plaint is liable to be rejected. Even where issues have already been framed, the
scope of enquiry under Order VII Rule 11 CPC does not expand and remains confined to the plaintiff's
pleadings. The trial court, therefore, committed a manifest error in relying upon the defendant's application
and documents for rejecting the plaint. [Paras 22-24, 31, 33, 38]

Code of Civil Procedure, 1908 - O. VII r.11(d) - Limitation Act, 1963 - Art. 59 - Suit seeking
declaration that Will is void - Date of knowledge pleaded in plaint - Limitation as mixed
question of law and fact - No Rejection of plaint at threshold:

Held: Where the plaintiff specifically pleads that knowledge of the impugned Will was acquired only on a
particular date and that the suit was instituted within three years therefrom, the question of limitation
becomes a mixed question of law and fact. At the stage of Order VII Rule 11 CPC, the Court must proceed on
the basis that the averments contained in the plaint are correct and cannot test their veracity. Unless the
plaint itself unequivocally discloses that the suit is barred by limitation, the plaint cannot be rejected under
Order VII Rule 11(d) CPC. The issue regarding the correctness of the pleaded date of knowledge is a triable
issue requiring evidence and cannot be adjudicated summarily at the threshold. [Paras 25-29, 34, 40]