Advance paid 19 lacs in 2018 for a Shop but no much progress since then. We insist on registration of the sale agreement but the Builder avoids calls. Recently I came to know that the builder sold the same shop to another person. We visited the Police Station to file an FIR but the police officer refused to lodge an FIR and told us to file a complaint.
He said to first submit a complaint and they will verify the facts post which FIR can be filed. Is this not a cognizable offence? How can we insist police to file FIR and catch the builder before he absconds? The same Shop which is sold to me is even registered under different names and even most of the flats in the said building are sold to multiple buyers.
Police officers cannot refuse to register the first information report (FIR) if information discloses commission of a cognisable offence. The builder has sold the same property to more than one person. This is an offence of cheating and punishable under section 420 of the Indian Penal Code. Cheating is a cognisable offence hence, police officer cannot refuse to lodge the FIR. Police officer cannot insist the informant to file a complaint.
Send the information to the District Superintendent of Police
Section 154(3) of the Code of Criminal Procedure provides that if a police officer refuses to lodge the FIR, the informant can send the substance of the information to the Superintendent of Police (SP). the SP will either himself investigate or depute any subordinate officer to conduct investigation.
The above provision is statutory provision and SP shall initiate the investigation if the substance of information discloses commission of a cognisable offence. In Lalita Kumari vs State of U.P. the Supreme Court has held that officer in charge of the police station (SHO) cannot refuse to register FIR of a cognisable offence. He has no option to conduct a preliminary inquiry before recording of the FIR.
Preliminary inquiry before lodging of FIR
In Lalita Kumari case, the hon’ble Supreme Court opined that in these cases the police officer can conduct preliminary inquiry.
- Commercial offences
- Matrimonial disputes
- Medical negligence
- Corruption cases
Cheating is not a commercial offence. It is an offence against property. This is a cognisable offence and investigation commences only after FIR. Hence, the opinion of police officer is unjust and violates the legal principles. You should send the substance of information to the SP and wait for his action. If the SP also does not take any action on your complaint then you should approach the district court under section 156(3) crpc.
The first class judicial magistrate shall direct the SHO to lodge the FIR. he can also monitor the progress of investigation and call a status report. In the Sakiri Basu case the Supreme Court has held that the Judicial Magistrate has power to monitor the investigation.
