State Consumer Disputes Redressal Commission
Shri Sunil Kushappa Mhettar vs Ganesh Vyapari Nagari Sahakari Pat ... on 22 October, 2010
Daily Order BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI First Appeal No. A/10/687 (Arisen out of order dated 09/07/2010 in Case No. 127/2009 of District Kolhapur)
1. SHRI SUNIL KUSHAPPA MHETTAR R/O PETH VADGAON TAL HATKANGALE KOLHAPUR MAHARASHTRA
2. SHRI SUBHASH ANANTRAO MHETTAR R/O PETH VADGAON TAL HATKANGALE KOLHAPUR MAHARASHTRA
3. SHRI DHARMENDRA ASWINKUMAR SHAH R/O PETH VADGAON TAL HATKANGALE KOLHAPUR MAHARASHTRA
4. SHRI ASHOK JANARDHAN PETKAR R/O PETH VADGAON TAL HATKANGALE KOLHAPUR MAHARASHTRA
5. SHRI PRAJOT RAMAN SHAH R/O PETH VADGAON TAL HATKANGALE KOLHAPUR MAHARASHTRA
6. SHRI SHITALSURENDRA HONALE R/O PETH VADGAON TAL HATKANGALE KOLHAPUR MAHARASHTRA
7. SHRI SATISH SHANKAR BELEKAR R/O PETH VADGAON TAL HATKANGALE KOLHAPUR MAHARASHTRA ....Appellant Versus
1. GANESH VYAPARI NAGARI SAHAKARI PAT SANSTHA MARYADIT PET VADGAON PET VADGAON TAL HATAKANGALE KOLHAPUR MAHARASHTRA
2. SHRI JAGDISH GAJANAN KUDALKAR R/O PET VADGAON TAL HATANGALE KOLHAPUR MAHARASHTRA
3. SOU SANDYA JAGDISH KUDALKAR R/O PETH VADGAON TAL HATKANGALE KOLHAPUR MAHARASHTRA
4. SOU VIJAYAMALA GAJANAN KUDALKAR R/O PETH VADGAON TAL HATKANGALE KOLHAPUR MAHARASHTRA
5. SHRI SHEKHAR GAJANAN KUDALKAR R/O PETH VADGAON TAL HATKANGALE KOLHAPUR MAHARASHTRA
6. SHRI GAJANAN DYANDAV KUDALKAR R/O PETH VADGAON TAL HATKANGALE KOLHAPUR MAHARASHTRA
7. SOU SARITA AMOL DHAVALE R/O GIJAVANE TAL GADHINGLAJ KOLHAPUR MAHARASHTRA
8. SHRI AMOL SURENDRA DHAVALE R/O GIJAVANE TAL HATANGALE KOLHAPUR MAHARASHTRA ....Respondent BEFORE :
Hon'ble Mr. P.N. Kashalkar , PRESIDING MEMBER Hon'ble Mrs. S.P.Lale , Member PRESENT:
P PATIL, Advocate for the Appellant 1 None for the Respondent *JUDGEMENT/ORDER Per Shri P.N.Kashalkar, Hon'ble Presiding Judicial Member:-
This is an appeal filed under Section27-A of Consumer Protection Act, 1986 by the judgement debtor against judgement and award passed by District Consumer Redressal Forum, Kolhapur in execution no.EA?09/127. Under execution proceedings on finding that judgment debtor has not returned the FDR's of decree holders, the Forum below after giving chance to judgment debtor proceeded under Section 27 of Consumer Protection Act, 1986 and awarded sentence of three years imprisonment to the Dharmendra A. Shah, Prajyot Raman Shah, Ashok Janardan Petkar, Sunil Kushappa Mhaitar, Subhash Anandrao Mhaitar, Shital Surendra Honole, Satish Shankar Belekar. Aggrieved by this sentence of sending them to jail to suffer imprisonment of three years, all the convicted persons have filed this appeal.
Yesterday Adv.P.Patil for the appellant was present. He is present today also. Adv.D.N.Kulkarni was present yesterday. but today he is not present but he told that appeal may be allowed since the part of the decreetal amount is already deposited by the appellant in the District Consumer Redressal Forum, Kolhapur and remaining amount has been deposited in the State Commission while filing appeal.
We have perused the impugned judgment which reveals that the proper procedure as contemplated under Section 27 Sub Section (3) has not been followed because in the judgment it has been mentioned that those who have been convicted were asked whether they are guilty and they stated that they were contesting that they had not complied with the order passed by the District Consumer Redressal Forum in consumer complaint no.405/2008 passed on 15/10/2008. Thereafter, it has been also mentioned that Counsel for the judgment debtor had cross-examined the complainant and in cross examination complainants told that they had not made payment to them as per award passed by the District Consumer Redressal Forum. Thereafter, after hearing both the Counsels, Forum below held that these appellants are guilty and sentenced them to suffer imprisonment of three years. As such, this appeal under section27-A has been filed.
Yesterday we were told that amount under award has been paid independently on behalf of the appellant to the respondent and to that effect Adv.Mr.D.N.Kulkarni for the respondent made a statement and fairly conceded that respondent had received the amount as per award passed by District Consumer Redressal Forum. In the totality of the fact and circumstances, we are finding the present order will have to be quashed and set aside since award has been complied with fully by the present appellants.
Of course before parting with this judgment, we have to place on record the fact that procedure as mentioned in the Code of Criminal Procedure, 1973 (summary procedure) under Chapter XX and XXI should be followed before sending any person to jail under the proceeding taken out under Section 27 of Consumer Protection Act, 1986. Proceeding under Section 27 is in the nature of criminal trial and it has got all the trappings of the criminal case. This proceeding has to be tried in a summary manner and therefore, no Forum should deviate from the procedure laid down under CrPC for summary trial. As such, we pass the following order:-
:-ORDER-:
1. Appeal is allowed.
2. The sentence of three years against the appellant is hereby quashed and set aside.
3. Since the appellant are already on bail, their bail are cancelled and they need not to surrender their bail bonds.
4. Amount deposited by the appellant (Rs.15,000 in District Consumer Redressal Forum, Kolhapur + Rs.34,000/- to the State Commission) shall be refunded back to the appellant no.7, who is present today. Cheque of above referred amount be handed over by Registrar, State Commission to the said appellant which appellant deposited by them while preferring an appeal.
5. Parties are left to bear their own costs.
6. Copies of the order herein be furnished to the parties as per rule.
Pronounced Dated the 22 October 2010 [Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member