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Cheating by builder– Civil or Criminal?

Saturday, May 26, 2018

Our system has established various dispute redressal forums, under various legal provisions. Each of these forums is entrusted a responsibility of redressing specific type of dispute. Irrespective of availability of these various forums, an aggrieved common man or a customer first approached the police administration. Till date the common man or customer has a belief that, irrespective of nature of dispute, the police administration will have a remedy. The customers cheated by the builder or developer are no exception to this. Therefore, various complaints like delayed possession, amenities, conveyance etc against builder, first reach the police station. On receipt of such complaints, often the complainants are told it is a civil dispute and are shown the door.

Against this backdrop, the order of Bombay High Court Justice Kathawalla dated 04th May 2018 is very important. In the petition before the Justice Kathawalla, the petitioner has neither been given possession nor the compensation for the delay, by the builder. Therefore, the petitioner reported the said complaint to Malad police station on 23.09.2017. However, the police administration informed the petitioner in writing, that the dispute is of civil nature. Justice Kathawalla observed in the said order that, even after direction not to term such dispute as a civil dispute, there has been no change in police administration, and it continues to show door to aggrieved customers. Further, on clarification about such behaviour, police administration simply tender technical apology.

Civil vs Criminal
On backdrop of the facts and the order of high court, it’s imperative to understand nature of civil and criminal proceedings and its salient features. The legal proceedings can broadly be divided into two i.e. civil and criminal, and both these proceedings are completely different from each other. To punish an offender is primary motive of criminal law. Our current criminal law does not have required focus on victims of offence or their welfare. Moreover, in legal proceedings of serious offences like murder, rape, extortion etc, the complainant is mere witness and does not have much control over the legal proceedings.

In civil proceedings, the person instituting a suit is called plaintiff. Civil law focuses on rights and claims of the plaintiff. The civil law protects and enforces rights of plaintiff like easement, rights in property, monetary claim, etc. in civil proceedings plaintiff in involved, moreover plaintiff can produce evidence and witnesses. Unlike criminal proceedings, the plaintiff has complete control over civil proceedings.

Motive Matters
Criminal law focuses on offence and punishment, on proof of offence and punishment, criminal proceedings cease. Civil proceedings are focused on plaintiff, his rights and claims and do not cease unless and until rights and claims are satisfied. This is the most important distinguishing point in civil and criminal proceedings.

In some cases, both the civil and criminal proceedings are possible, which leads to confusion in mind of aggrieved person. In such cases, the decision shall be guided by the ultimate motive of the litigation. If the ultimate motive is to punish the offender, criminal proceedings are to be initiated, and if the ultimate motive is establishment right or recovery of claims, it’s better to initiate civil proceedings. In a nutshell, before initiating or choosing the type of legal proceedings, the aggrieved person must be clear about the desired result.

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