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legal opinion on cheating in making payment for balance amount

                                 SHORT NOTE ON LEGAL OPINION

FACTS:

Manish Kumar is a factory owner at Delhi & supplied goods worth Rs 10 lakh to Surjeet Sinha at Chandigarh. Surjeet paid only Rs 2.60 lakhs & did not make the payment of the balance amount. His intention was bad from the beginning. He kept on buying time on one pretext or the other. Manish Kumar later come to know that he also cheated similarly to other factory owner. Manish filed a written complaint to the police at Delhi but police did not register the FIR. 

ISSUE:

Whether police are correct for not registering Manish FIR or police are avoiding their duty to register FIR . 

BACKGROUND:

In the case of Lalita Kumari V. Govt. of U.P. & others (2008) Supreme Court in the 5 Judge Bench remark that the number of F.I.R. not registered is approximately equivalent to the number of F.I.R. actually registered. In a study conducted by the Indian Institute of Public Opinion, New Delhi regarding “Image of the police in India” observed that over 50% of the respondent mention non-registration of complaints as a common practice in Police Station.

LEGAL ASPECT:

Every information related to the commission of cognizable offence given to the  officer in charge of a police station shall be registered in writing enter in a book or in a form as the state government may prescribed under section 154 (1) code of criminal procedure. In the case of cognizable offences police can take immediate action as these offences are serious in nature. Police can arrest accused without warrant or court’s permission as per section 2 (c) in the code of Criminal Procedure, 1973. The use of word “shall” in section 154 (1) of the Code of Criminal Procedure intend that it is mandatory to register an F.I.R. if the information given to the police discloses the commission of cognizable offence.  Apart from Indian Penal code, there are some other laws where the provision of cognizable offence has been mentioned such as prevention of corruption act, UAPA, … in these laws cognizability of an offence shall be determined by the punishment for the offence. If the liability of an offence is punishable with the imprisonment of minimum 3 years, it is considered as cognizable offence. In relation to the registration of an F.I.R. Ministry of Home Affair issued guidelines in 2013 for compulsory registration of F.I.R. under section 154 of Code of Criminal Procedure when the information makes out a cognizable offences.  

Sometimes police are reluctant to register F.I.R. they start making excuses of preliminary enquiry and keep on beating around  the bush. As far as Preliminary enquiry is concerned under section 157 of the Code of Criminal Procedure, the procedure for the investigation of the offence shall be started after the registration of F.I.R. and no credibility or reasonability of the said information set any precedent condition for the registration of the case.  

As per the Law commission of India report 41 Code of Criminal Procedure, 1898 considered that compulsory registration of F.I.R. is mandatory and no delay or deny shall be excused. There are case where police officer shows state guidelines for avoiding their duty and violation the right of the citizen, on that issued I would like to mention about Article 254 (1) of the constitution of India, where law made by parliament prevails over the law made by State government. 

Every person who is aware of the commission or intention of any other person to commit any offence which punishable under any section of Indian Penal Code in the absence of any excuse should inform the nearest magistrate or police officer of such commission or intention. 

JUDGEMENTS:

In the case of State of Haryana & others V. Bhajan Lal & others (1992) Supreme Court held that any information disclosing a cognizable offence and satisfying the conditions of section 154 (1) of the code of Criminal Procedure laid before am officer in charge of a police station shall be duty bound to register a case based on such information without any excuse. In the case of Ramesh Kumari V. State (N.C.T. of Delhi) & others (2006) Supreme Court held that reasonableness or Credibility of the information is not a condition precedent for registration of a case. In the case of State of Maharashtra & others V. Shiv Das Singh Chavan & others (2011) Supreme Court held that the information disclosing a cognizable offence shall be recorded by the police in accordance with the provision prescribed under section 154 of the Code of Criminal Procedure. In the case of Lalita Kumari V. State of U.P. & others (2013) 5 Judge bench of Supreme Court held that registration of F.I.R. is mandatory if the information disclosing cognizable offence and no preliminary inquiry is permissible in such a situation. The police officer cannot avoid his duty of registering F.I.R. in the case of information disclosing cognizable offence. Action must be taken against the erring officer who do not register the F.I.R. if the information received by him disclosing a cognizable offence. If the information received does not disclose a cognizable offence but indicates the necessity of an enquiry, a preliminary enquiry may be conducted only ascertained whether cognizable offence is disclosed or not.

OPINION:

In my opinion, cheating is a cognizable & non-bailable offence under section 420 of Indian Penal Code, 1860. Manish Kumar file F.I.R. under section 154 (1) of Code of Criminal Procedure for the offence of Cheating against Surjeet Sinha. Fact of the case indicate Surjeet’s mala fide intention to deceive Manish kumar by purchasing goods without paying money. Surjeet past records shows that he used to deceive people multiple times during his past business projects. 

I request the Court to take note of those erring police officer who refuse to register Manish Kumar F.I.R. and take strict action against them. on that note I would like to advice Manish to approach his nearest police station to file his case. 



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