If you are stuck in such a situation, here is what to do.

Mr. Alok Sharma, a resident of the city of Rampur, decided to purchase custom-made furniture for his new home. He placed an order with a well-known local shop, ‘Elegant Designs’, for a total amount of ₹1,50,000. As per the agreement, Mr. Sharma paid an initial advance of ₹40,000 in cash. A few weeks later, upon seeing the progress, he made another payment of ₹80,000 via a bank transfer. The final balance of ₹30,000 was to be paid upon the successful delivery and installation of the furniture. However, when the delivery date passed, Mr. Sharma found that the shop was permanently closed. The owner, Mr. Kumar, is now unreachable, and his phone is switched off. Mr. Sharma is left without his furniture and has lost ₹1,20,000.

Advice in such cases

If you find yourself in a similar predicament, it is crucial to act swiftly and systematically to protect your interests and seek legal remedy.

• Gather all documents related to the transaction. This includes any receipts, invoices, bank transfer statements, screenshots of chat conversations, or any written agreement you may have.
• Do not try to contact the fraudulent party aggressively or issue threats, as this could weaken your legal position. Maintain a record of all your attempts to contact them.
• Visit the shop’s location and, if possible, take dated pictures or videos showing that it is closed. Speak to neighbouring shopkeepers who might provide information or act as witnesses.
• Consult with a lawyer. The very basic and important step to start is to talk to a lawyer/advocate. You should not hesitate in paying his consultation fee, i.e., it might be in the range of Rs. 10,000 to 50,000, depending on the case. He is helping you in this situation to come out. He is an expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved in 7-10 days.

Applicable Sections of Law

Such cases typically involve criminal offences under the Bharatiya Nyaya Sanhita (BNS), 2023. The primary sections that may apply are:

• Section 316 of the BNS, 2023 (Criminal Breach of Trust): This section applies when a person is entrusted with property and dishonestly misappropriates it or converts it for their own use. In this scenario, the furniture seller was entrusted with the advance money for the purpose of providing furniture, but they dishonestly absconded with it.
• Section 318 of the BNS, 2023 (Cheating): This section is applicable if it can be proven that the seller had a dishonest intention from the very beginning to deceive you and induce you to pay the money, without any intention of delivering the goods.

If you are the complainant

As the complainant, you are the person who initiates the legal process. Your first step should be to file a formal complaint. You can draft a detailed written complaint addressed to the Station House Officer (SHO) of the police station that has jurisdiction over the area where the shop is located or where the transaction took place. Your complaint should narrate the entire sequence of events chronologically, mentioning all relevant dates, amounts paid, and details of the seller. Attach copies of all your evidence, such as payment receipts and communication records, to this complaint.

If you are the victim

As the victim of this fraud, your immediate goal is to set the criminal justice system in motion. After consulting with your lawyer, you should approach the police. If the police are unresponsive or refuse to register a First Information Report (FIR), your lawyer can guide you on the next steps. This may include filing a private complaint before the Magistrate under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, or approaching a senior police official like the Superintendent of Police.

How the police behave in such cases

Police response can vary. In some instances, the police may promptly register an FIR under the relevant sections of the BNS and begin their investigation. However, it is also common for the police to initially view such matters as civil disputes, suggesting that it’s a mere breach of contract rather than a criminal offence. They might be hesitant to file an FIR and may ask you to resolve the matter in a civil court. It is important to be persistent and, with the help of your lawyer, clearly articulate how the elements of cheating and criminal breach of trust are present in your case, making it a criminal matter.

FAQs people normally have

What evidence is required?

Strong evidence is the backbone of any legal case. The more evidence you have, the stronger your claim will be. You should collect and preserve:

• Proof of Payment: Bank statements, cash receipts (even if handwritten), online transaction details, or any acknowledgement of money received by the seller.
• Communication Records: Screenshots of WhatsApp chats, text messages, emails, or call recordings (where legally permissible) discussing the order, payment, and delivery.
• Invoices or Order Forms: Any document detailing the items purchased, agreed price, and terms.
• Witness Information: Names and contact details of anyone who was present during the deal or who can testify about the shop’s operations and subsequent closure.
• Photographic Evidence: Pictures of the closed shop.

How long will the investigation take?

The duration of a police investigation is not fixed and can depend on several factors. These include the complexity of the case, the workload of the investigating officer, and the ease of locating the accused. Under the new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, there is an emphasis on timely investigation. However, practically, it can take anywhere from a few months to over a year for the police to file a final report (chargesheet) in court. Your lawyer can follow up with the police to ensure the investigation proceeds without undue delay.

Advocate Sudhir Rao, Supreme Court of India