- If the builder is failed to deliver the flat , then you can cancel the booking and claim refund from him , but a cheating case cannot be filed on this ground. 

- Further , you can recover the amount after filing a civil suit under section 37 CPC before the court , along with the compliant under section 138 N.I. Act which you have already filed .

- Further, you can also file a compliant against the builder before the Consumer forum and therein you can claim compensation as well with the paid entire amount . 

This is clear case of cheating under Section 420. Builder took money and failed to deliver agreed flat and he offered you refund through rent. That will not absolve him of offence under Section 420. File a case under Section 138 as well as 420.

The procedure for filing of cheque bounce case and recovery of money is…

1. Fill the cheque carefully with amount paid with interest and your name as payee if the cheque is blank.
2. Present the cheque to bank.
3. After bouncing of the cheque obtain the cheque return memo and within fifteen days of receiving cheque return memo, issue him notice through Advocate seeking payment  of cheque amount within 15 days.
4. After fifteen days of the receipt of notice by him file a criminal complaint under Section 138 of Negotiable Instruments Act, 1881 through Advocate .

Once case is filed he has to pay you cheque amount or he will go to jail

1. Yes, you can also file a cheating case against the Builder for taking the consideration from you and thereafter refusing to deliver the flat as promised by him.

2. Cheque bounce case is absolutely a separate case altogether and can not be clubbed with the above cheating case.

You cannot file cheating case as you have accepted offer of rentals till money is returned 

you have already file cheque bouncing case 

Dear client, 

It wont change the fact that you had continued taking rent till now. Only Section 138 seems to apply. 

Thank you. 

If you have agreed for taking rent till such time he returns you the refund amount, then you cannot blame him for the offences of cheating.

However you can very well initiate cheque bounce case under section 138 NI act because it clearly indicates that the builder is liable to refund the amount thereby it is a cleanly liable debt  hence the cheque bounce case is maintainable.

Your filing of 138 against the builder under Negotiable Instruments Act is in order. Since you have agreed to wait till the builder returns your money by accepting to receive rent of another flat, you can't file a cheating case against the builder. After you stop receiving the rent of another flat, then you can file a cheating complaint U/s. 420 against the builder.

i assume builder gave you cheques for return of your money which bounced 

so you have a remedy under 138

however the police is right since the builder is also paying you rent till you get possession of the new flat, no cheating case is made out 

even if you stop taking the rent and file a cheating case the builder will conveniently say that he is ready to pay rent to you but you are not accepting 

so you wont get any relief by the police or by moving under the criminal law

if the project is RERA registered then file a complaint in the RERA court or in the consumer court for refund of your money with interest and for compensation 

As you have already filed a cheque dishonour case under S-138 of the NI Act, there is no need for any criminal action. More so, when the builder has not defrauded you, but made some alternate arrangement for refunding your money.

Yes you can file both. Also consumer case will be maintainable. 

If you need any further assistance.You can approach me through Kaanoon or LinkedIn.