Karnataka High Court
Prakash S/O Late Chanbassappa Khandre vs Ramchandra Roa S/O Late Ambajirao Ors on 22 June, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.15474/2012
Between:
Prakash S/o late Chanbassappa Khandre,
Age about 52 years,
R/o Bhalki, Tq: Bhalki, Dist: Bidar.
... Petitioner
(By Sri. Shivakumar Kalloor, Advocate)
And:
1. Ramchandra Rao S/o late Ambajirao,
Aged about 64 years,
2. Pundalik S/o late Ambajirao,
Aged about 61 years,
3. Namdev Rao S/o Pundalik,
Aged about 40 years,
4. Smt. Archana D/o late Ambajirao,
W/o Apparao, Aged about 43 years,
5. Dhanraj S/o Maruthirao Jagadale,
Aged about 21 years,
6. Arpita D/o Shivaraj Jawale,
Aged about 21 years,
7. Ashwini D/o Shivaraj Jawale,
Aged about 19 years,
2
All residing at Kapapura (A) village,
Tq: and Dist: Bidar,
Through GPA Ramchandra Rao,
The complainant/respondent No.1.
... Respondents
(By Sri, Gangashetty Patil, Advocate)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to allow the criminal petition and quash the
criminal proceedings in CC No.911/2002 on the file of
JMFC-II, Bidar.
This petition coming on for hearing this day, the Court
made the following: -
ORDER
This petition is filed by the petitioner/Judgment Debtor under Section 482 of Cr.P.C., praying this Court to quash the criminal proceedings in C.C.No.911/2002 on the file of JMFC-II, Bidar.
2. Brief facts of the case are that, the respondent filed a private complaint in P.C.No.62/2001 against the petitioner in the Court of JMFC-II at Bidar under Section 200 of Cr.P.C. It is the contention of the complainant that, they are the Decree Holders and related to each other, they have filed a complaint before 3 the District Consumer Forum, Bidar (for short 'District Forum') stating that they have kept fixed deposit in Deepak Leasing and Finance Corporation, Bidar represented by accused Nos.1 to 3 and other partners. It is further contended that, accused Nos.1 to 3 are the Managing Partners and the petitioner is the accused No.3. They were not ready to pay the fixed deposit amount with interest to the complainant. So, they filed a separate complaint before the District Forum. The District Forum passed an order allowing the complaint and directed the respondents therein to pay the amount. Since the amount was not paid, they filed the execution petition Nos.14 to 20 of 1994 before the District Forum. The said District Forum issued warrants against the accused persons. The petitioner herein appeared before the District Forum and took the contention that the provisions of Section 27 is before the Hon'ble Supreme Court. The District Forum thereafter passed final order dated 27.3.2001, 4 dismissing the execution petition and directed the respondent to file a private complaint under Section 200 of Cr.P.C. Accordingly, a private complaint came to be filed before the JMFC-II at Bidar for having disobeyed the order of the District Forum and it was registered as P.C.No.62/2001
3. The respondents had filed criminal petition No.2643/2005 before this Court at Principal Bench at Bangalore, seeking to quash the proceedings and the said petition was dismissed on 13.12.2007. It is the contention of the petitioner that Section 27 of the Consumer Protection Act is challenged before the High Court and it is still pending, yet to decide whether the private complaint is to be filed or before the same District Forum the complaint has to be filed. It is further contended that a writ petition came to be filed in W.P.No.83115/2009 before this Court and therein the petitioner prayed to quash the impugned order dated 5 15.6.2002 for having taken the cognizance and the proceedings in C.C.No.911/2002.
4. It is further contended that the said writ petition was dismissed on the ground that the petitioner has not challenged the validity of Section 27 of the Consumer Protection Act. It is further contended that subsequently Section 27 (2) of Consumer Protection Act has been elaborately discussed and decided by this Court, as such, he filed criminal petition to quash the proceedings.
5. I have heard the learned counsel appearing for the petitioner and the learned counsel for the respondents.
6. The main grounds urged by the learned counsel for the petitioner are that, complaint of the respondents is not maintainable in law and it is liable to be quashed. He would further contend that the proper 6 Forum for the purpose of execution and proceedings, the matter is before District Forum as per Section 27 (2) & (3) of Consumer Protection Act. The proceedings which have been initiated before the JMFC-II Court are not maintainable in law. He would further contend that, a separate execution filed by the petitioner in order to enforce the order before the JMFC Court is not maintainable. He would further contend that in the eye of law, the proceedings, which have been initiated are nothing but nullity and same are liable to be quashed.
7. The learned counsel for the respondents vehemently argued and contended that, earlier there was no specific law laid down either by Apex Court or by this Court. Under the circumstances, without there being any Forum, the respondents have filed the criminal petition before the learned JMFC-II, Bidar, as the procedure which was existing, at that particular point time, now in view of the clear picture laid down by 7 this Court, that, he will approach the District Forum. However, liberty may be given to the respondents to file an appropriate application and proceed the matter in accordance with law.
8. I have gone through the submissions made by the learned counsel for the petitioner as well as the learned counsel for the respondents and carefully and cautiously gone through the records.
9. By going through the records it clearly indicates that the parties to the lis have brought this litigation under different Forum under different courts alleging and contending that the courts below are having the power to execute the order passed by the District Forum. However, a criminal revision petition came to be filed, challenging the order passed by the JMFC-II, Bidar Court and while dismissing the said petition, a liberty was given to the petitioner to challenge the validity of Section 27 of the Consumer 8 Protection Act by filing the writ petition. Subsequently, the writ petition was also came to be filed in W.P.No.83115/2009. The same also came to be dismissed. However, in the meanwhile, this Court elaborately discussed and decided the provisions of Section 27 (2) & (3) of the Consumer Protection Act in the case of M/s. Shanthiniketan Housing Foundation Vs. Brig. (Retd.) J.N.Devaiah & Ors. reported in 2009 (6) AIR Kar R. 117. Wherein, it has been observed as follows;
" 24. The constitution of Criminal Courts and the offences are clearly set out in Criminal P.C. the District Forum, the State Commission or the National Commission are note one such class of Criminal Courts as defined under the Code. Therefore, in order to vest these Forums and Commission, the power of Judicial magistrate, which does not fall under S.6 of Criminal P.C., it became necessary for the Parliament to state, notwithstanding anything contained in the Code of Criminal Procedure, 1973, the District Forum, the State Commission or the National Commission, as the case may be, shall have the power of Judicial Magistrate of Ist Class, for trial of offence 9 under the Act. Therefore, by virtue of introduction of this non obstante clause, these three authorities constituted under this Act are conferred with the powers of Judicial magistrate of Ist Class in the matter of trial of offences. After constituting these three authorities under the Act as Criminal Courts, the Parliament further made it clear by the latter part of sub-section (2) of S.27 that on such conferment of power, 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 Code of Criminal Procedure, 1973. Thus, the three authorities constituted under the Act, though, do not form class of Criminal Courts under S.6 of the Code, they are deemed to be Judicial Magistrate of Ist Class under the provisions of the Code and they have been vested with the power of Judicial Magistrate of Ist Class for the trial of the offence under the Act.
10. By going through the above para, it has been observed that after constituting the three authorities under the Act as Criminal Courts, the Parliament further made it clear by the latter part of sub-section (2) of S.27 that, on such conferment of power, the District 10 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 First Class for the purpose of Code of Criminal Procedure. Thus, the three authorities constituted under the Act, though, do not form class of Criminal Courts under Section 6 of the Code, they are deemed to be Judicial Magistrate of First Class under the provisions of the Code and they have been vested with the power of Judicial magistrate of First Class for the trial of the offence under the said Act. It is thereby given the full power to the District Forum or the State Commission or the National Commission, as the case may be. When the said law has been settled by virtue of the decision stated supra, then under such circumstances the respondents have to file an appropriate petition before the District Forum in accordance with law, as advised by them. 11
11. No doubt, the parties to the lis have been fought the litigation since long under different Forums. With a liberty to file fresh petition before the District Forum, the present petition has been disposed of.
Keeping the point of limitation open to be considered by the District Forum, if they have been advised to file appropriate applications in this behalf.
Sd/-
JUDGE BL