Jammu & Kashmir High Court Directs FIR Over Online Loan Cheating Through Facebook

A Single Bench of Justice Dhiraj Singh Thakur noted that the Petitioner's application under Section 156(3) CrPC was disposed of by the concerned Magistrate with prima facie finding that the facts disclose commission of a cognizable offence by the accused. However, the Magistrate fell short of issuing directions for registration of FIR.

"On a perusal of the order impugned, it thus appears that there is a contradiction in the order passed by the Court below. While on one hand, the learned Magistrate appears to be satisfied that cognizable offences seemed to have been committed on the basis of averments made in the complaint, on the other hand, the learned Magistrate has forwarded the complaint to be looked into by the Crime Branch with a further direction to register a case only if some cognizable offences are found to have been committed," the Bench noted.

Background

The Petitioner had approached the High Court through Advocate Deepak Sharma complaining that he had been subjected to a scam by online fraudsters and was, therefore, deprived of approximately Rs. 20,700/- on the pretext of granting him an online loan.

He submitted that the accused persons, including Facebook and Bajaj Finance, in collusion with each other made an offer of loan to him on his Facebook page, by placing the said offer for loan under "Sponsored category" and induced and lured him to accept the said loan offer by displaying it recurrently on his Facebook feed.

The Petitioner further submitted that the accused conspired to cheat him by inducing him to transfer a total amount of Rs 20,700/- in to the bank account of the Respondent, by fraudulently winning his confidence, by making an offer for loan displaying name and official logo of Bajaj and placing the offer for loan under Sponsored category on Facebook.

It was his case that the Police was reluctant to entertain his complaint and thus, a prayer was made before the Magistrate to exercise his powers under Section 156(3) of the CrPC for issuing directions for registration of a case in that regard.

The petitioner made Facebook India, FB India Vice President Ajit Mohan, Bajaj Finance Ltd and its Managing Direector Rajiv Jain as accused 1 to 4 in the complaint.

In his order, the Magistrate said,

"Ex facie the cognizable offences are found to have been committed. Therefore at this stage, it is considered just and appropriate to allow the application and direct SSP Crime Branch, Jammu to look into the allegations and if some cognizable offence is found to have been committed by the accused persons, then only, an FIR shall be registered and the occurrence shall be investigated forthwith."

Cryptic order

Aggrieved by aforesaid cryptic order, the Petitioner approached the High Court. He argued that if the Magistrate was satisfied that cognizable offences on the face of it had been committed, then there was no occasion for the Magistrate to leave it open to the Police authorities to look into the allegations to determine as to whether the cognizable offences had been committed or not.

The plea stated,

"Special Railway Magistrate, Sub Judge, Jammu, despite knowing the fact that the information given by the petitioner in the application under section 156(3) Cr.P.C. discloses cognizable offences, instead of acting as per the mandate of law by issuing specific directions to the police to file FIR against the accused persons and to conduct investigation in the matter, in a manner unknown to law, vide its order dated 02-09-2020 though concurring that ex facie the cognizable offences are found to have been committed, but in a very casual manner directed Respondent no. 4 to look into the allegations and directed that if some cognizable offence is found to have been committed by the accused persons, then only, an FIR shall be registered and the occurrence shall be investigated forthwith."

Findings

The Single Judge was of the opinion that the second portion of the impugned order, inasmuch as it leaves it open to the Crime Branch to decide the fate of the complaint, is contrary to the satisfaction already recorded and is therefore, to that extent, bad in law.

The Court ordered,

"the order impugned to the extent it leaves the issue of registration of FIR to the wisdom of the official respondents is bad in law and is, accordingly, set aside. The Incharge Cyber Cell would register an FIR and the same shall be investigated by the concerned Branch dealing with the Cyber offences."

Case Title: Vivek Sagar v. UT of J&K & Ors.

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