New Delhi:The Supreme Court on Friday said it is sad to note that, the IPC remained in force for almost a period of 162 years until it was repealed and replaced by the Bharatiya Nyaya Sanhita on December 2023 which came into effect on July 1, 2024, the courts have not been able to understand the fine distinction between criminal breach of trust and cheating.
A bench comprising Justices J B Pardiwala and Manoj Misra said it is high time that 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”, said Justice Pardiwala, who authored the judgment on behalf of the bench.
The bench said 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. Justice Pardiwala stressed that the magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences.
The bench said in contrast, when a case arises from a FIR, the 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”, said Justice Pardiwala.
Justice Pardiwala said: “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”.
The apex court allowed an appeal by Delhi Race Club (1940) Ltd. and others challenging a decision of the Allahabad High Court, which rejected a plea by the appellant and declined to quash and set aside the summoning order dated February 28, 2023, passed by the additional chief judicial magistrate, Khurja, Bulandshahar in a 2021 complaint case.
Justice Pardiwala said if it is the case of the complainant that a particular amount is due and payable to him then he should have filed a civil suit for recovery of the amount against the appellants herein. “But he could not have gone to the court of Additional Chief Judicial Magistrate by filing a complaint of cheating and criminal breach of trust”, said the bench.