State Consumer Disputes Redressal Commission
Amit Kamal Kishor Soni vs Jagrutiben Prakashbhai Tandel on 18 May, 2023
Details DD MM YY
Date of Judgment 18 05 2023
Date of filing 08 02 2022
Duration 10 03 01
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
AEA/01/2022
Court No. 1
Amit Kamal Kishor Soni
38, Barfani Naagar, Indore,
Madhya Pradesh. ...Appellant.
Vs
1. Mrs. Jagrutiben Prakashbhai Tandel
Market Captains Investment Adviser Pvt. Ltd.
In Front of Amway Office, Plot No. 73,
PU-4, Vijay Nagar, Indore,
Madhya Pradesh.
2. Market Captains Investment Adviser Pvt. Ltd.
At: In Front of Amway Office,
Plot No. 73, PU-4, Vijay nagar,
Indore, Madhya Pradesh.
3. Mr. Anirudh A Singh Rathore,
At: In Front of Amway Office
Plot No. 73, PU-4, Vijay nagar
Indore, Madhya Pradesh.
4. Mr. Rohit Singh
At: In Front of Amway Office,
Plot No. 73, PU-4, Vijay Nagar.
Indore, Madhya Pradesh.
5. Gitanjali
At: In Front Of Amway Office
Plot No. 73, PU-4, Vijay nagar,
Indore, Madhya Pradesh.
6. Deepakbhai
At: In Front Of Amway Office
Plot No. 73, PU-4, Vijay nagar,
Indore, Madhya Pradesh. ...Respondents.
K.Navlakha AEA/01/2022 Page 1 of 12
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CORAM: Hon'ble Justice Mr. V. P. Patel, President
Ms. A. C. Raval, Member.
APPERANCE: Ms. Devanshi Malkan, L.A. for the appellant, Mr. Nirav Thakkar, L.A. for the respondents.
============================================================= Order By Hon'ble Justice Mr. V. P. PATEL, President.
1. The appellant has filed this appeal in Execution under Section 73 of the Consumer Protection Act 2019, being aggrieved by and dissatisfied with the order dated 13.12.2021 passed by the Ld. Consumer District Redressal Commission, Valsad (for short District Commission) in Execution Petition No. 54/2019.
2. Heard Ld. Advocate Mr. Jitendra Malkan for the Ld. Advocate Ms. Devanshi Malkan, for the appellant and Ld. Advocate Mr. Nirav Thakkar, for the Ld. Advocate Mr. Sunil J. Muste, for the respondent. Perused on record of the case.
Facts of the Case of the Complainant:-
3. It is stated in the appeal memo that he is a third party challenging the order dated 13.12.2021 passed by the Ld. Consumer District Redressal Commission, Valsad at Dang. The original complainant has filed the Consumer Complaint No. 237/2018 before the District Commission the complaint was granted or allowed on 27.09.2019. Thereafter, the complainant has filed Execution Application No. 54/2019 under Section 27 of the Consumer Protection Act for implementation of order dated 27.09.2019. The present petitioner has filed an Application Exh. 39 objecting the warrant issued by the District Commission. It is the case of the petitioner that original award was passed against Market Captains Advisory Pvt. Ltd. Company and opponent No. 2 to 5 they are the manager and staff of the company. That the District Commission has issued summons to the opponent No. 1 Market Captains Investment Pvt. Ltd. which was K.Navlakha AEA/01/2022 Page 2 of 12 served. Thereafter, the District Commission has issued bailable warrant against the present petitioner on behalf of the opponent No. 1 Market Captains Advisory Investment Pvt. Ltd. The petitioner has given surety of Mr. Harising Narsing. Thereafter, in absence of petitioner before the District Commission, the District Commission had issued non-bailable warrant. Thereafter, the said non-bailable warrant was challenged before the State Commission by filing Revision Petition No. 04/2020. The same Revision Petition was allowed and State Commission had passed an order. That opportunity be provided to the petitioner and thereafter, proceed according to law. Thereafter, the present petitioner has remain present before the District Commission and filed objections vide marked 37. 3.1 It is also the case of the petitioner that he is not an original party, he is a third party. The District Commission has wrongly issued warrant there is no liability of the petitioner. That the petitioner was not party to the original proceedings. After hearing the both the parties the District Commission vide impugned order directed the opponent No. 1 to deposit the amount within 30 days otherwise process will be issued.
4. Order under Challenge:-
The petitioner has challenged the order dated 13.12.2021 passed below Exh. 39 in Execution Application No. 54/2019 passed by the Ld. District Commission.
Argument of the Petitioner:-
5. Ld. Advocate of the petitioner has argued that the order passed by the Ld. District Commission is illegal and unjust therefore, it is require to be quashed and set aside. The Ld. District Commission has failed to appreciate that the present petitioner was not an original party and was wrongly implicated by the complainant at a later stage. That the present petitioner is proprietor of Market Captains Investment Advisory Pvt. Ltd. That the certificate of registration as Investment Advisory issued by the SEBI in the name of the appellant as a new K.Navlakha AEA/01/2022 Page 3 of 12 proprietary and the trade name is Market Captains Investment Advisor and not Market Captains Investment Advisor Pvt. Ltd. That the Market Captains Investment Advisor Pvt. Ltd. is a separate entity and the present petitioner is a no way related to that. It is further, argued that the order passed by the Ld. District Commission is wrong and bad in law and therefore, it is require to be quashed and set aside. He has request to allow this petition and grant relief as prayed for.
Argument of the Opponent:-
6. Ld. Advocate of the opponent has argued that the petitioner is the owner of Market Captains Investment Advisor Pvt. Ltd. All the liability of the said company is of the present petitioner. Petitioner has taken only technical grounds. The order passed by the Ld. District Commission is legal, valid and correct in eye of laws. That the Ld. District Commission has passed impugned order after considering documentary evidence on record more particularly the certificate issued by the Nagarpalika Indor, and other residential proof of the petitioner. The residential certificate also on the name of petitioner. It is further argued that to avoid the liability to pay the amount awarded, the petitioner has wrongly challenged the impugned order. He has requested to dismiss the petition with cost.
Merits of the case:-
7. The Ld. District Commission vide order dated 13.12.2021 in Execution Application No. 54/2019 rejected the Objection Application raised by the present petitioner. Further, District Commission has held the opponent No. 1 Market Captains Investment Advisor Pvt. Ltd. intern Mr. Amit kumar Kishorbhai Soni, who is the proprietor of the said firm is liable for the award. It is further, directed to deposit the amount award within 30 days from the date of order otherwise the matter will be proceeded.
7.1 The petitioner has produced copy of Execution Petition at page No. K.Navlakha AEA/01/2022 Page 4 of 12 59-60. On perusing the same Execution Petition the complainant has filed Execution Petition under Section 27 of the Consumer Protection Act. 1986 (new act. Section 72 of the Consumer Protection Act 2019).
8. This Commission has come across the Judgment of the Hon'ble NCDRC in case of Ramesh G. Kohali Vs. Shivanand Shanbag dated 09.01.2020 wherein, it is held the procedure for conducting the trial for the offence under Section 27 (1) are required to be followed. In that Judgment National Commission has referred the decision of Hon'ble Supreme Court delivered in case of State of Karnataka Vs Vishwabharti Housing Building co-operation society & others (2003) SCC 412.
9. On perusing the subject as well as relief claim in the Execution Application, the complainant wants to file a complaint against the opponent under Section 27 of the Consumer Protection Act. 1986 as per the Section 27 of the CP Act. 1986. The District Commission has to proceed as stated in the Criminal Procedure Code the procedure as under:-
(1). Where a Trader or a person against whom a complaint is made [or the complainant] fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person [or complainant] shall be punishable with i9mprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both:
(2). Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of K.Navlakha AEA/01/2022 Page 5 of 12 the Code of Criminal Procedure, 1973 (2 of 1974). (3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.
10. On reading section 27 (1) of the C. P. Act, 1986 it is provided that if the person against the whom a complaint is made or the complainant fails or omits to comply with any order made by the Ld. District Commission such person shall be punished with imprisonment or fine or both. Thus, Section 27 (1) is a penal provision.
10.1 Section 27 (2) of the C.P.Act, 1986 provides the power of a Judicial Magistrate of first class for the trial of offences under the C.P.Act, are confirmed on the District Commission. The District Commission shall be deemed to be a Judicial Magistrate of first class for the purpose of Code of Criminal Procedure, 1973 (for short CrPC). By this provision, the District Commission can exercised the power of a Judicial Magistrate of first class, for trial of offence under Section 27 of the C.P.Act.
10.2 Sub-section (3) of Section 27 of C. P. Act, 19686 provides that the offences may be tried as summarily. Therefore, provision as regards to the summary trial provided under Chapter XXI of the Cr. Pc. i.e. Section 260 to 265 are required to be followed.
11. The procedure for summary trials is provided in Section 262 (1) of the Cr. Pc. which are as under.
"262. Procedure for summary trials.
(1) In trials under this Chapter, the procedure specified in this Code for the trial of summons- ease shall be followed except as hereinafter mentioned."
It means for summary trial the procedure of summons case by the Magistrate under Chapter XX i.e. Section 251 to 259 are required to be K.Navlakha AEA/01/2022 Page 6 of 12 Commission has to follow the procedure laid down for the summary trial given for the trial of summons case to conduct the trial of the offence under section 27(1) of the C.P. Act, 1986.
12. Procedure to be followed by District Commission:- There are two remedies available to the complainant for implementing the order passed by the District Commission.
(i) Civil remedy under section 71 of the C.P. Act for enforcement of order and
(ii) Criminal remedy under section 72 of the C.P. Act penalty for non compliance of order.
There is no bar to file both Applications under section 71 of the C.P. Act for enforcement of order of Consumer Commission and an Application under section 72 of the C.P. Act for penalty for non- compliance of order. But it should not be filed simultaneously to avoid burden of the Commission and achieve goal of preamble of the Act the timely and effective adjudication and settlement of consumer disputes.
13. The complainant cannot take recourse of two remedies at a time in one proceeding. Further, the District Commission also cannot allow to proceed the complainant with both the remedies under section 71 of the C.P. Act and section 72 of the C.P. Act at a time in single proceeding. The reasons are obvious that for the proceeding under section 71 of the C.P. Act the District Commission has to proceed under order C.P. Code where as for the proceeding under section 72 of the C.P.Act the District Commission has to proceed to conduct trial under Criminal Procedure Code.
14. Cognizance: The District Commission being deemed to be a Judicial Magistrate of first class can take cognizance of the offence of Section 27 of the C. P. Act under Section 190 of Cr. Pc.
K.Navlakha AEA/01/2022 Page 7 of 12As per Section 190 of the Cr. Pc. the Magistrate may take cognizance of the offence which reads as under:
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed 14.1. The District Commission may also take cognizance of the offence under Section 27 (1) of the C. P. Act, upon the receiving the complaint of facts which constitute the offence under Section 27 (1) of the C.P.Act.
Moreover, the District Commission can also take the cognizance Suo Moto under Section 190 (1) (C) of the Cr. Pc.
14.2. Security Presence of opponent/accused: Upon receiving the complaint the District Commission has to issue a summons under Section 61 of the Cr.Pc. read with Section 27 of the C. P. Act in writing for the securing the presence of the opponent/accused.
If the accused/opponent is served with the summons and if he has not appeared before the District Commission, the District Commission may issue bailable/non-bailable warrant under Section 70 to 73 of the Cr.Pc. to secure the presence of the opponent/accused. The District Commission may also order to execute a bond with or without sureties for his appearance before the commission under section 88 of Criminal Procedure Code.
14.3. Recording of plea: When the accused/opponent appears or is brought before the District Commission, the District Commission has to record the plea under Section 251 of the Criminal Procedure Code, by K.Navlakha AEA/01/2022 Page 8 of 12 stating the particulars of the offence alleged under Section 27 (1) of the C. P. Act to have been committed by him and he shall be asked whether he pleads guilty or has any defence to make.
If the accused/opponent pleads guilty, the District Commission shall record the plea as nearly as possible in the words used by the accused and may in his discretion convict the opponent/accused under Section 252 of the Criminal Procedure Code in terms of section 27 of Criminal Procedure Code.
14.4. Evidence of complainant: If the District Commission does not convict the accused/opponent under Section 252 of Criminal Procedure Code, the District Commission shall proceed to hear the prosecution/complainant and the District Commission shall take all such evidence (oral or documentary) as may be produced in support of the complaint under Section 254 (1) of the Criminal Procedure Code. The District Commission may issue a summons to any witness directing him to attend Commission or to produce any document or other thing at the cost of complainant. Of course the evidence should be relevant to for the purpose of the proceeding initiated under section 27 of C.P. Act. Considering the nature of the evidence, which would be relevant for the purpose of the proceedings instituted under section 27 of the C.P. Act, such evidence, can be given on affidavits, as provided in section 296 of Criminal Procedure Code read with section 264 or Criminal Procedure Code.
14.5. Recording of further statement: As section 313 or CrPC is applicable to every inquiry or trial, the district commission has to proceed for further statement. After the evidence of the prosecution/complainant is over the District Commission has to examine the accused/opponent personally under Section 313 (1) of the Cr.PC. for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him.
K.Navlakha AEA/01/2022 Page 9 of 1214.6. Evidence of Accused/Opponent: Thereafter, the District Commission has to heard the accused/opponent and take all such evidence as may be produced in his defense under Section 254 (1) of the Cr. PC. if it is necessary the Magistrate may issue the summons to any witness of the opponent/accused at his expenses under Section 254 (2) and (3) of the Cr. PC. Considering the nature of proceeding the District Commission may ask the Accused to file affidavit of himself and witnesses by way of his examination in chief. The District Commission may disallow the evidence if found to be irrelevant or frivolous or aimed at prolonging the trial. The complainant of course the method of interrogation may also be adopted for cross examination by both parties, as mandate of the Act of summary trial should not be defeated.
14.7. Argument of Finding: After the evidence is closed by the opponent/accused the concise oral arguments or record the brief memorandum of arguments advanced by both the parties i.e. complainant and opponent/accused under Section 314 of the Cr. Pc are required to be considered.
14.8. Recording of Finding: After the hearing of the both the parties the Magistrate may proceed under Section 255 to record the acquittal if the accused is not find guilty under Section 255 (1) of the Cr. Pc. If the District Commission finds offence is proved, accused/opponent may be convicted under Section 255 (2) of the Cr. Pc. and imposed sentence as mentioned in the Section 27 (1) of the C. P. Act, 1986. The other provision as regards to the summons case under chapter XX are also applicable for the proceedings before the District Commission.
15. In this case the Ld. District Commission has directed the opponent No. 1 to deposit the awarded amount within 30 days. This concept is not included in the summery proceeding under the CrPC or as discussed herein above. The Ld. District Commission cannot direct to deposit the amount under the proceeding of Section 27 of CP Act 1986. The District Commission can passed an order of punishment and sentence of K.Navlakha AEA/01/2022 Page 10 of 12 imprisonment or imposed fine or both, if guilty, is proved. Therefore, we are of the opinion that the order passed by the District Commission to deposit the amount is not in accordance with the law. The District Commission has exercised a jurisdiction in deposit the amount is bad to the law. At the most he can direct the opponent to remain present and proceed according to law. If accused is not remain present he can issue warrant to secure the presence of accused. Therefore, order to deposit the amount is required to be quashed and set aside.
16. From proceeding before the Ld. District Commission and before this Commission it appears that the petitioner is not willing to pay awarded amount for reasons best known to him. Therefore, necessary order will be passed in the final order.
17. We have considered grounds stated in the memo petition, reason stated in the impugned order, documentary evidence produced on record, argument advanced by the Ld. Advocate of the parties and facts and circumstances of the case. We find that the order of the Ld. District Commission is required to be modified to certain extent. Therefore, the Appeal in Execution is required to be partly allowed. Hence, in the interest of justice following order is passed.
ORDER
1. Appeal in Execution No. 01/2022 is hereby partly allowed.
2. The order dated 13.12.2021 passed by the Ld. Consumer District Redressal Commission, Valsad, in Execution Application No. 54/2019 is hereby modified as under:
The order as regards to deposit the amount within 30 days is hereby quashed and set aside.
3. The rest of the order is hereby confirmed.
K.Navlakha AEA/01/2022 Page 11 of 124. The Ld. District Commission is hereby directed and ordered to proceed the Execution Application pending before it in accordance with law. The petitioner is further, directed and order to executed a bond of Rs. 1,00,000/- and with a one surety of a like amount for his appearance before the Ld. District Commission under Section 88 of the CrPC. It is further clarified that if the petitioner remain absent without sufficient cause the District Commission may issued warrant to secure the presence of the petitioner.
5. Ld. District Commission is also directed and ordered to expedite the Execution Application preferably within 2 months from the date of order received by it. The petitioner is also hereby directed to remain present before, the District Commission on 25th May 2023 and the Ld. District Commission shall proceed according to law.
6. No order as to cost.
7. Certified copy of this order be provided to the parties free of cost.
8. The registry is directed to send a copy of this order to the learned District Commission through E-mail in PDF format for taking necessary action.
Pronounce in open court today on 18th May 2022.
[Hon'ble Justice Mr. V. P. Patel] President.
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