Crime of cheating - role of police
Background: A builder has cheated me for Rs. 20 Lacs. I want him to face criminal charges.
Here is the story: I purchased a pre-construction flat in Uttarakhand from the builder, and paid 95% at the time of booking the flat entirely by cheque in 2010. Possession was promised in June 2012, which has been delayed. Remaining 5% was payable on possession. Four years later, In 2014, the builder advised me that flat was going to be completed and would be handed over soon, and I was asked to pay remaining 5% along with service tax, and also for other amenities such as Club Membership, Electric Meter installation, Gas pipe connection charges etc. I live abroad and so I could not physically verify status of completion of the flat. I asked my brother in Mumbai to execute sale deed on my behalf under a Power of Attorney. Just a few days before the scheduled registration of the sale deed, the builder informed me by email that delivery of the flat was somewhat delayed and would be handed in next 3 months. Trusting the builder, I paid all the money and got sale deed registered.
The builder kept putting off handing over possession of the flat and still has not handed it to me. I asked my brother to visit the site and find out what was happening. He informed me that work on site had been stopped long time ago, the building seemed to have been abandoned the project. No construction activity was going on at the site. There was not a single construction worker at the site. The flat did not have any doors, windows, or even flooring. It was just four walls. He took pictures with his phone and sent to me.
It seemed that builder took advantage of my living abroad and my inability to physically verify construction status of the flat, and has cheated me by getting all the money through misrepresentations and transferring to me the flat, which is practically non-existent.
I reported the matter by email to top authorities of the Uttarakhand police, who conducted an investigation and found that my allegations were true, and provided the report to me. The police have not taken any further action against the builder. I am filing a case in Uttarakhand State Consumer Redressal Forum to recover my money. But I want the builder to be punished for criminal acts.
Question: What legal options do I have to get the police act and register a case of cheating against the builder and get him punished for acts of misrepresentation and cheating?
Asked in Criminal Law from Canada
It was illegal on the part of police to have conducted the investigation in the first place on your complaint as no provision of penal law has been breached which was to result in an investigation. The failure of the builder to deliver the possession opens the doors of civil court for you but it does not make him amenable to a criminal prosecution. The legal meaning of misrepresentation and cheating is way different from how these terms are understood in the common parlance. So the only remedy for you is to move the civil court or consumer commission against the builder to either seek delivery of possession or claim refund with compensation.
1. To get the substantive justice you have to lodge complaint with consumer forum where you will get delivery of possession with all pending works and damages out of the delay.
2. let the cheating case be continue. if police does not work on your complaint then file writ petition in high court.
1) you can file complaint of cheating and criminal breach of trust against the builder
2) you will have to come down to India to file case against the builder
3) rely upon police report wherein they have given finding that your allegations are true
4) if police refuse to lodge complaint you will have to file complaint before magistrate under section 156(3) of CRPC to direct cops to investigate and submit report
As a first step you have initiated the criminal complaint online and the police have on verification concurred with your complaint.
With the report you file a PCR or Private Complaint Report directly with the jurisdictional magistrate at Uttarakhand against the builder U/s 420 IPC which attracts the maximum punishment if proved.
In your case you have all e-mail correspondences the builder sent you informing you wrongly that the building was completed and ready for handover and this way induced you falsely to pay him the entire sale consideration.
Engage the services of a good advocate at Uttarakhand, give a POA to your brother to represent you before the court as you are not in India to prosecute the case against the builder.
1. File a complaint against the builder by sending the letter by speed post under copy to the local S.P./D.C. and collect the postal track report from the internet,
2. If police fails or neglects to take any action against the accused, file a Writ Petition against the police for its inaction praying for relief,
3. You are required to file complaint case before the Consumer Forum as decided by you.
What legal options do I have to get the police act and register a case of cheating against the builder and get him punished for acts of misrepresentation and cheating?
If police remained ineffective to your complaint, you may move the magistrate court under section 156 (3) of cr.p.c. with a private complaint seeking to direct the concerned police to register a FIR against the builder and book the culprit as per provisions of criminal law under section 420 of IPC.