National Consumer Disputes Redressal
Ramesh G. Kohali vs Shivanand Shanbag on 9 January, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI APPEAL EXECUTION NO. 105 OF 2019 (Against the Order dated 16/02/2019 in Complaint No. 14/2014 of the State Commission Maharashtra) 1. RAMESH G. KOHALI PRESENTALY LODGE IN CUSTODY IN AMRAWATI JAIL ...........Appellant(s) Versus 1. SHIVANAND SHANBAG R/O. FLAT NO 9& 10, SHIKAR APARTMENT GOKULDAS PASTA ROAD MUMBAI 400 014 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : Mr. Nitin Mittal, Advocate For the Respondent : MR. SIDDHARTH GAUTAM
Dated : 09 Jan 2020 ORDER
JUSTICE V.K.JAIN (ORAL)
1. This appeal is directed against the order of the State Commission dated 16.02.2019, whereby the appellant was sentenced to undergo imprisonment for three years under Section 27 of the Consumer Protection Act, 1986, he having failed to comply with the order of the State Commission dated 30.01.2014 passed in Consumer Complaint No.295/2011. It is informed that pursuant to the order passed by the State Commission the Appellant is in custody in Amaravati jail for last more than 10 months.
2. The procedure to be followed by a Consumer Forum under Section 27 of the Consumer Protection Act, 1986 came for consideration by Three Members Bench of this Commission in EA No.80/2019 in Consumer Complaint No.14/2015 (Rajnish Kumar Rohtagi & Anr. vs. Unitech Ltd. & Anr.), and the following view was taken:
27. One of the questions which came up for consideration during the course of hearing was with respect to the procedure which a Consumer Forum is required to follow in the proceedings initiated under Section 27 of the CP Act. It was contended on behalf of some of the complainants that the proceedings under Section 27 are akin to the proceedings under Section 39 Rule 2A of the Cr. PC or the proceedings under Contempt of Court Act or Section 51 read with Order 21 Rule 37 of the Code of Civil Procedure. A reference in this regard was made to the following observations made by the Hon'ble Supreme Court in State of Karnataka Vs. Vishwabharathi House Building Coop. Society & Ors. (2003) SCC 412:
"58. Furthermore, Section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to Order 39 Rule 2-A of the Code of Civil Procedure or the provisions of the Contempt of Courts, Act or Section 51 read with Order 21 Rule 37 of the Code of Civil Procedure. Section 25 should be read in conjunction with Section 27. A Parliamentary statute indisputably can create a tribunal and might say that non-compliance of its order would be punishable by way of imprisonment or fine, which can be in addition to any other mode of recovery.
Reliance was also placed upon the following view taken by Allahabad High Court in Ghaziabad Development Authority Vs. Union of India & Anr. 2003 (4) AWC 3078:
"20. A perusal of Section 27 clearly shows that proceedings therein are in the nature of proceedings for civil contempt, and their object is to compel obedience of the orders of the District Forum, State Commission or the National Commission."
"22. .........No doubt under the Contempt of Courts Act, 1971 and Chapter 35E of the Allahabad High Court Rules, the procedure for contempt of court proceedings in the Allahabad High Court has been prescribed, but in our opinion, this procedure need not be followed by the District Forum, State Commission or the National Commission in proceedings under Section 27. Hence, the District Forum, State Commission or the National Commission needs only to follow the rules of natural justice in respect of such proceedings."
28. In Kamlesh Aggarwal Vs. Narain Singh Dabbas & Anr. (2015) 11 SCC 661, the appellant before the Hon'ble Supreme Court filed a consumer complaint, which was allowed by the District Forum. Since the order passed by the District Forum was not complied, he filed an execution petition, seeking punishment of the respondents under Section 25 & 27 of the CP Act. The District Forum found the respondent guilty of non-compliance of its order and ordered for three months imprisonment of the respondents, along with penalty of Rs.3,000/-. The said order was challenged by the respondents before the concerned State Commission, which vide its order dated 30.7.2013, set aside the order passed by the District Forum, holding that the said Forum had not adopted the procedure of summary trial at the time of passing the order of conviction and sentence imposed upon the respondent, as provided under the Cr. P.C. It was also observed by the State Commission that at no point of time the respondents were afforded an opportunity of being heard against the disobedience of the order passed by the District Forum, which had to try them by following the summary procedure, empowered as Judicial Magistrate of the First Class for the purpose of Cr.PC. The appeal filed by the appellant against the order of the State Commission having been dismissed by this Commission, he approached the Hon'ble Supreme Court and inter-alia contended that the State Commission ought to have remanded the matter to the District Forum with a direction to it to follow the procedure and pass the appropriate order. The respondent before the Hon'ble Supreme Court contended that the District Forum had not followed the provisions of Criminal Procedure Code while dealing with the application filed by the appellant under Section 27 of the Consumer Protection Act. Allowing the appeal, the Hon'ble Supreme Court inter-alia observed and held as under:
"13. .....In the facts and circumstances of the case, we are of the view that the State Commission should have remanded the matter to District Forum after setting aside its order dated 26.11.2010 with a direction to proceed with the matter in accordance with the procedure contemplated under the Code of Criminal Procedure referred to supra for taking penal action against the respondents who are the concerned officers of Navchetna Sahkari Awas Samiti Ltd. for non-compliance of the order." (emphasis supplied) "16. Having regard to the fact situation that the appellant, who is a consumer, has been litigating the matter before the District Forum, State Commission and the National Commission for the last 17 years to get her legitimate right of getting the sale deed registered in respect of the allotted site made by the Navchetna Sahkari Awas Samiti Ltd. in her favour who is its member since 1962, therefore, we deem it proper to exercise our power under Article 142 of the Constitution of India for the reason that the State Commission has erred in not remanding the case to the District Forum, after it has found fault with the order of the District Forum in convicting and sentencing the officers of Navchetna Sahkari Awas Samiti Ltd. who are the respondents herein for not following the procedure as provided under the Criminal Procedure Code and for that reason we deem it just and proper to remand the case to the District Forum with a direction to the District Forum to follow the procedure under Section 262 read with Chapter XX, Section 251 of the Code of Criminal Procedure to initiate penal action against the respondents under Section 27 of the Act for noncompliance of the statutory provisions". (emphasis supplied)"
"17. ....................... Therefore, this Court in exercise of power of this Court under Article 142 of the Constitution of India, the order of the State Commission is modified to the extent of remanding the case to the District Forum to execute the decree and take penal action against the respondents by following the procedure under Section 262 read with Chapter XX and Section 251 of the Code of Criminal Procedure in accordance with law." (emphasis supplied)
29. As noted earlier, Section 27 of the CP Act was amended with effect from 15.3.2003. While deleting the proviso which permitted imposition of a less than the minimum term of imprisonment and less than the minimum amount of fine, the legislature also added sub-section(2), thereby conferring the powers of Judicial Magistrate of the First Class upon the District Forum, the State Commission or the National Commission, as the case may be, for trial of the offences under the CP Act and also provided that the District Forum, State Commission or the National Commission shall be deemed to be a Judicial Magistrate of the First Class for the purpose of Code of Criminal Procedure. Sub-Section (3) was also added to provide that the offences under the CP Act may be tried summarily. Considering the aforesaid amendment, and bound by the decision of the Hon'ble Supreme Court in Kamlesh Aggarwal (supra), taking therein the view that the District Forum was required to follow the procedure prescribed in Section 262 read with Chapter XX and Section 251 of the Code of Criminal Procedure, we have no hesitation in holding that after amendment with effect from 15.3.2003, the proceedings initiated under Section 27 of the CP Act are regulated by the procedure prescribed in the above-referred provisions of the Cr.PC. Though, in Kamlesh Aggarwal (supra), the Hon'ble Supreme Court exercised its plenary powers under Article 142 of the Constitution, what needs to be noted is that the said power was exercised because the District Forum had not followed the procedure prescribed in Section 262 read with Chapter XX and Section 251 of the Cr. P.C.
30. Section 251 appears in Chapter XX of the Cr. P.C. and reads as under:
"251. Substance of accusation to be stated - when in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but shall not be necessary to frame a formal charge."
Section 262 and 264 find place in Chapter XXI of the Cr. P.C. and read as under:
262. Procedure for summary trials - (1) In trials under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned.
2. No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
264. Judgment in cases tried summarily - In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding".
Section 313(1)(b), which appears in Chapter XXIV containing general provisions as to inquiries and trials, reads as under:
313. Power to examine the accused - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court -
< > Shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
31. On a conjoint reading of the aforesaid provisions contained in Cr. P.C., we are of the considered view that when a person accused of having committed an offence punishable under Section 27 of the CP Act appears or is brought before a District Forum, State Commission or the National Commission as the case may be, a notice stating the particulars of the offence alleged to have been committed by him, is required to be given to him. If he pleads guilty, he can be convicted and punished in terms of Section 27 of the CP Act. If he does not plead guilty or claims that he has any defence to make, the District Forum, State Commission or National Commission, as the case may be, shall record the substance of such evidence as may be produced by the complainant. The evidence may be oral and / or documentary. In his discretion, the complainant may seek to rely solely upon the order passed by the District Forum, State Commission or the National Commission, as the case may be, and in such a case, the aforesaid order would constitute an evidence produced by the complainant in support of his case. Of course, if he wants to produce other evidence as well, he will be entitled to produce the same so long as the said evidence is relevant for the purpose of the proceedings initiated under Section 27 of CP Act. Considering the nature of the evidence, which would be relevant for the purpose of the proceedings instituted under Section 27 of the CP Act, such evidence, in our opinion, can be given on affidavits, as provided in Section 296 of the CP Act. The choice will rest with the complainant to decide whether he wants to give oral evidence or evidence on affidavit (s) or both, oral as well as on affidavit(s). If oral evidence or evidence on affidavit is given by the complainant, the accused would be entitled to cross-examine the deponent / witness since, evidence, as defined in Section 3 read with Section 138, 139 of the Evidence Act comprises not only the Examination-in-Chief but also cross-examination and re-examination if any, permitted by the Court. An evidence in a criminal trial, without an opportunity to the opposite party to cross-examine the witness will not constitute legally admissible evidence, the cross-examination of the witnesses being a fundamental and indefeasible right of the accused. In view of the provisions contained in Section 264 of the Cr. P.C. it will be sufficient for the District Forum, State Commission or the National Commission, as the case may be, to record the substance of the evidence, instead of recording a verbatim examination of the witness. In view of the mandate of the sub-section (3) of Section 27, it will be competent for the District Forum, State Commission or the National Commission, as the case may be, to record only the substance of the evidence.
Despite the restriction contained in sub-section(2) of Section 262 of the Cr. P.C., it would be competent for the District Forum, State Commission or the National Commission as the case may be, to pass a sentence of imprisonment for term exceeding three months so long as the above referred summary procedure is followed by it. This is so because the legislature, while permitting a summary procedure has simultaneously empowered the District Forum, State Commission or the National Commission, to impose sentence upto three years.
32. Since Section 313 of the Cr. P.C., applies to every inquiry or trial, the aforesaid provision, in our opinion, is also required to be followed in the proceedings initiated under Section 27 of the CP Act where the accused pleads not guilty or claims that he has a defence to make. However, if the personal attendance of the accused has been dispensed with, the District Forum, State Commission or the National Commission, as the case may be, can also dispense with the aforesaid examination.
33. After examining the accused in terms of Section 313 of the Cr. P.C., except where such an examination is dispensed with, the District Forum, State Commission or the National Commission, as the case may, is required to take such evidence as the accused may seek to produce in his defence. The accused however, cannot be allowed to lead evidence, which is not strictly relevant to the proceedings initiated against him under Section 27 of the CP Act, and only such evidence can be allowed to be produced by him as would prove a legal defence to the proceedings initiated against him under Section 27 of the CP Act. In order to ensure that the accused does not prolong the trial, which is mandated to be a summary trial, by seeking to produce evidence which may not be relevant to the proceedings initiated against him, the District Forum, State Commission or the National Commission, as the case may be, shall require the accused to file a list of his witnesses, indicating therein, the specific defence he seeks to prove through the witnesses. Wherever, the nature of the evidence so permits the District Forum, State Commission or the National Commission, as the case may be, may also ask the accused to file the affidavit of witness by way of his examination-in-chief instead of bringing him in the witness box. It will always be open to the District Forum, State Commission or the National Commission as the case may be, to disallow all such evidence sought to be produced by the accused as is found to be irrelevant or frivolous or aimed at prolonging the trial, thereby defeating the mandate of the Act, which envisage a summary trial of such offences. The complainant, of course, would be entitled to cross-examine the witness of the accused, including those whose affidavits are filed by him by way of evidence. If the accused decides to enter the witness box, in terms of Section 315 of the Cr. P.C., the complainant shall be entitled to cross-examine such an accused.
34. After recording the substance of the evidence of the complainant, examination of the accused, and defence evidence, if any, the District Forum, State Commission or the National Commission, as the case may be, shall deliver a judgment, which needs to contain only a brief statement of the reasons for the findings recorded by it.
3. Admittedly, the procedure as approved by the larger Bench of this Commission has not been followed in this matter. Admittedly, no notice under Section 251 of the Code of Criminal Procedure was given to the Appellant. No opportunity to cross-examine the complainant was given to him. Admittedly, no opportunity to lead defence was given to him. Admittedly, his statement under Section 313 read with section 281 of the Code of Criminal Procedure was not recorded. The impugned order, therefore, cannot be sustained and is set-aside. The matter is remitted back to the State Commission to decide the same afresh, following the above referred procedure approved by the larger Bench of this Commission.
4. The Appellant who is stated to be in the custody shall be released forthwith on his furnishing a personal bond of Rs.25,000/- with one surety of like amount to the satisfaction of the concerned State Commission. He shall not leave the country without prior permission of the concerned State Commission and shall deposit his passport, if any with the said Commission. He shall remain present before the State Commission on every date fixed by the State Commission. The complainant shall serve a copy of this order on the concerned authorities to ensure that the appellant does not leave the country without prior permission of the State Commission.
5. The parties shall appear before the State Commission on 06.02.2020, which is the date already fixed in this matter.
6. Dasti.
......................J V.K. JAIN PRESIDING MEMBER