Investigation
Thyagarajan
(Querist) 21 August 2010
This query is : Resolved
Dear Members
A public grievance complaint had been lodged by me against a builder to the police on offences of cheating that is the building he constructed had no approval of local authorities which amounts to cheating under IPC 418 and punishabe under Cr.pc. A complaint against the same builder had been made by me in a civil court that he had not completed a flat as per contract of construction. The civil case is running and numbered. The inspector concerned refused to take my criminal complaint after taking my statement on the basis a civil case is pending .
Can any member advise me whether the inspector was wrong and quote a case in proof of the same?
Regards
s.subramanian
(Expert) 21 August 2010
The pendency of the civil case cannot and does not have any bearing on the criminal complaint. There is a specific Supreme Court Judgment in this regard. You can approach the HIgh Court under Sec.482 of Cr.P.C. for a direction to the Police to register FIR on your complaint.
Gulshan Tanwar
(Expert) 21 August 2010
You can file a complaint Under S.156(3) Cr.P.C. or Under s. 200 Cr.P.C. and the MM will look for the evidence and then he will issue the necessary directions and please to note that he will clarify from the IO under s.173 to make a report and thereafter only will take the cognizance as this is the procedure which is being adopted by the Judiciary these days. Also read s.190 (1) a/b/c in these regard.
H. S. Thukral
(Expert) 22 August 2010
The offence of cheating has certain ingredients. One is that the accused must have intention to cheat right in the beginning. When in subsequent events the opposite party deviates from certain promises, it would not amount to cheating and damages can only be claimed in civil proceedings.
You can read Hriday Ranjan Prasad 2000AIR(SC)2341 where the Apex Court has dealt with a Civil or Criminal liability.
From the facts of your case it does not appear that the builder wanted to cheat you at the time of entering into the contract. Therefore in my opinion the Police have rightly decided not to take cognizance of your complaint.
Thyagarajan
(Querist) 22 August 2010
Dear Members
I thank Mr. Subramaniam for his reply. I wuold like to have the case treferance of the Apex court on admisability of police case when civil case is in progress.
I thank Mr. Harbajan Sing Thurkul as well. I do have proof that that the builder hid the fact he did not have approval for construction which came to ligt when the local authorities refused power connection to the my cottage in the absence of the approval. That is cheating under IPC as the builder knew he will be causing wrongful loss of money to get approva. Also the building could have been demolished. I had given all proof in this regard and still the police did not lodge a criminal case.I will difinitly read the Apex court order.
Can some member get me the case referance Mr.Subramaniam is mentioning?
H. S. Thukral
(Expert) 22 August 2010
On replenished facts, I state that you can file a complaint before the Magistrate. Pendency of civil proceeding is no bar to initiate criminal proceedings. It has been invariably held. I donot know which case Mr. Subramanian is referring but you can go through AIR 2001 SC 3846 Kamladevi Agarwal v. State of West Bengal
Thyagarajan
(Querist) 22 August 2010
Dear Harbajan Singh,
Much obliged for your referance given in the matter.
The reason for approaching the police was once he makes a FRI and takes Magistrate permission to start investigation and prosecute , then it becomes a state case and I will be a witness for the state. More plus point is that there are 23 other NRIs affected and also the police can take submissions made in civil case by the accused during investigation by the police for criminal case.
In Madras it is dificult for individual litigants appearing in person like me to tackle the Magistrate. Adjurnments are given in routine matter , judgements are invatriably challanged before CMM. The state prosecutors are used to it and that is why I am not making a private complaint to the MM.
Regards.
H. S. Thukral
(Expert) 22 August 2010
In some metros there are Economic Offences Wings of Police those are competent to take cognizance of such complaints. In Delhi there exists one such branch. Find out if it there in your city.
Thyagarajan
(Querist) 23 August 2010
Dear Harbajan Singh Thukral,
I checked up in Google search and found that Economic Offences Wing of police is thetre in Chennai functioning under CBI.
I went through the aim of this establishment to be that to investigate offences in mis-handling of funds in co-operatives and non-banking institutions and offences committed under IPC as well on cheating and fruad.
Today is a holiday due to Onam festival and there was no response from the office.
In the meantime please advise a case on which action was taken by this wing
H. S. Thukral
(Expert) 23 August 2010
You can file cheating forgery land grab cyber crime etc cases. It is deemed to be a Police Station.
Thyagarajan
(Querist) 29 August 2010
Dear Harbajan Singh,
I did have a talk with the DGP of the Economics offences wing of Chennai. He concurs with you that pendency of civil proceedings can not stop initiation of a criminal case. However he feels it is for the litigant to approach the magistrate and get the case started. Also for the present the DGP advised me that in Chennai he is after offences committed on high amount deposits and he is still not expanded the scope of EOW to include other areas like other metros. I had made an appeal against the inspector’s decision to Assistant Commissioner of police and on DGPs advice I sent a copy to EOW , commissioner of police Chennai and Chief justice of Madras high court. I hope the higher offices make the inspector to realize his folly.
