State Consumer Disputes Redressal Commission
Vishwas Santosh Malvankar & Another vs Santosh Atmaram Kale & Another on 31 March, 2016
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 09/2016
1) Shri. Vishwas Santosh
Malvankar, son of
Santosh Vaddueo
Malvankar, aged about
49 years, Indian
National;
2) Mrs. Sarita alias Shivani
Vishwas Malvankar, wife
of Shri. Vishwas Santosh
Malvankar, aged about 45
Years, Indian National,
Both residents of Murida,
Fatorda, Margao-Goa.
(REGISTERED ADDRESSES). ... Appellants
v/s
1) Shri. Santosh Atmaram Kale,
son of Atmaram Kale, of
major age;
2) Smt. Shamal Santosh Kale,
daughter of Shri. Krishna
Shanke, of major age,
Both residents of Flat No.
41 C, Jaideep Apartments,
Pajifond, Margao-Goa.
(REGISTERED ADDRESSES). ... Respondents
Mr. Parikshit Sawant, Lr. Counsel for the Appellants.
Mr. T. Pereira, Lr. Counsel for the Respondents.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 31/03/2016
ORDER
[Per Justice Shri. U. V. Bakre, President] 2 This appeal takes exception to the order dated 21/01/2016 passed by the Lr. District Consumer Disputes Redressal Forum, South Goa ("Forum", for short), passed on an application dated 12/06/2012, filed by the Decree Holders under Section 27 of the Consumer Protection Act, 1986 ("the Act", for short), in Execution Application No. 13/2010. The Appellants are the Judgment Debtors (JDs, for short) and the Respondents are the Decree Holders (DHs, for short) before the Forum. The parties shall hereinafter be referred to as per their status in the said Execution Application.
2. Briefly, the facts are:- By order dated 05/05/2010 in Complaint No. 12/2004, the Forum had ordered the JDs to deliver the possession of shop No. S-1 completed as per the Agreement to the DHs; to obtain Occupancy Certificate and Completion Certificate from the appropriate authorities and also to get NOC for the sale of Shop No. S-1 of the suit building; to execute the Deed of Sale in respect of the said shop in favour of the DHs; and to pay to the DHs interest at the rate of 18% p.a. on the sum of Rs. 3,00,000/- from 05/03/2002 to 05/08/2002 and also cost of Rs. 5000/-. Since the said order was not complied with, the DHs filed the said Execution Application No. 13/2010 and in that the said application dated 12/06/2012 for arrest and detention of the JDs. The Forum ordered to issue show cause notice to the JDs. Since the JDs refused to collect the notice in spite of being intimated, the Forum held that the JDs are deemed to have been served with the show cause notice. Non- bailable warrants were ordered to be issued against the JDs. The JDs were accordingly brought before the Forum under warrants and they were released on bail. Substance of accusation was framed and explained to the JDs, on 27/08/2012. Since the JDs pleaded not guilty, matter was fixed for trial and DHs were directed to file affidavit-in-evidence. On 08/10/2012, the DH No. 1 filed his affidavit-in-evidence. He was cross-examined on 03/05/2013. On 17/12/2013, the JD No. 1 was absent. Only the JD No 2 was present.
3The Advocate for JDs was also absent. The JD No. 2 was asked to cross examine the DH No. 1 and since he could not do so, the cross- examination of DH No. 1 was closed on 17/12/2013. On 28/01/2014, the statements of both the JDs were recorded under Section 313 of the Code of Criminal Procedure (Cr. P.C., for short). However, the records reveal that in both the statements, the name of only the JD No. 1 has been written. The JD No. 2 filed affidavit-in- evidence and she was cross-examined. The matter was heard in final arguments.
3. Vide order dated 01/08/2014, the Forum directed the JDs to undergo imprisonment for nine months each and to pay Rs. 5000/- each as compensation or to undergo simple imprisonment for another 15 days in default. The JDs preferred an appeal under Section 27A of the Act before the State Commission. The said appeal was dismissed by order dated 13/12/2012. The JDs then approached the Hon'ble National Consumer Disputes Redressal Commission by filing Execution Revision Petition No. 86/2014. By order dated 23/07/2015, the Hon'ble National Commission set aside the orders of the State Commission and the Forum.
4. The Hon'ble National Commission found that the Forum did not follow the procedure prescribed in the Cr. P.C. for trial of summons cases in its entirety. It was found that though the Forum recorded the evidence of the complainants (DHs) followed by the statements of the petitioners (JDs) under Section 313 of Cr. P.C. and also examined the petitioners (JDs) as witnesses, neither any notice in terms of Section 251 of the Cr. P.C. was given to the petitioners nor were they given an opportunity to cross-examine the complainants (DHs). The Hon'ble National Commission directed that the application under Section 27 of the Act needs to be decided afresh after strictly complying with the prescribed procedure. It was further directed that if the Petitioners (JDs) plead not guilty of the said notice, the Forum shall examine the complainants (DHs) and 4 their witnesses giving an opportunity to the petitioners (JDs) to cross-examine them. Further direction was that the Forum shall thereafter examine the petitioners (JDs) in terms of Section 313 of Cr. P.C. and then give an opportunity to them to produce defence witnesses. The National Commission lastly directed that a fresh order will thereafter be passed by the Forum on the application filed under Section 27 of the Act. The Forum was directed to decide the application within three months from the date of the parties appearing before it. The parties were directed to appear before the Forum on 02/09/2015.
5. Accordingly, the parties appeared before the Forum on 02/09/2015. The Forum directed the DHs to take steps. On 08/09/2015, the DHs filed fresh application under Section 27 of the Act. The Forum fixed the matter for reply/arguments on 10/09/2015. On 10/09/2015, the JDs filed reply. The Forum then issued show cause notice to the JDs and fixed the matter for reply. On 22/09/2015, the JDs again filed reply to show cause notice. The Forum again fixed the matter for compliance of the order of the National Commission. On 29/09/2015, summons to accused person in Form No. 1 of Schedule II of Cr. P.C. was served on both the JDs. On 01/10/2015, the Forum explained the substance of accusation to the JDs, in the same words as was earlier done on 27/08/2015. Thereafter, the Forum fixed the matter for filing affidavit-in- evidence by the DHs. The DH No. 1 filed his affidavit-in-evidence on 08/10/2015. He was cross-examined on 27/10/2015. Thereafter on 03/11/2015, statement of only the JD No. 2, under Section 313 of Cr. P.C., was recorded and on 05/11/2015 the JD No. 1 filed affidavit-in-evidence as directed by the Forum and the said JD was cross examined on 14/11/2015. The Lr. Forum heard arguments on 08/12/2015 and by impugned order dated 21/01/2016, the Forum held that the JDs are guilty of committing the offence of failing to comply with the order dated 05/05/2010 passed by it and sentenced 5 the JDs to undergo simple imprisonment of nine months and to pay a sum of Rs. 5000/- each to the DHs as compensation in default to undergo simple imprisonment for a period of another 15 days. It is this order which is challenged in the present appeal.
6. Mr. P. Sawant, Lr. Counsel argued on behalf of the JDs whereas Mr. T. Pereira, Lr,. Counsel argued on behalf of the DHs.
7. Amongst various other contentions, it was contended by Mr. Sawant that the order passed by the National Commission has not been complied with inasmuch as the procedure prescribed for trial of summons cases has not been followed by the Forum. He submitted that substance of accusation which has been framed and explained to the JDs is very vague which does not contain the particulars of the offence due to which prejudice has been caused to them. He further submitted that affidavit-in-evidence of the DH as well as of the JD has been taken when this is not permissible in trial of summons cases. He submitted that under Section 296 of Cr. P.C., affidavit-in-evidence could have been taken only if the evidence was of formal character. He urged that in the present case the evidence was not of formal character and therefore oral examination-in-chief was mandatory. Mr. Sawant, Lr. Counsel for the JDs relied upon following Judgments;
(i) Moti Lan and Ors. vs. State of U.P., 2004 Cri.L.J. 950;
(ii) State of Punjab vs. Naib Din, (2001) 8 SCC 578;
(iii) Mandvi Cooperative Bank Limited vs. Nimesh B. Thakor, (2010) 3 SCC 83.
8. On the other hand, Mr. Pereira, Lr. Counsel for the DHs submitted that the JDs are out to delay the execution of the order which is in favour of the DHs. He submitted that the JDs ought to have objected about the filing of affidavits at the right time before conducting the cross-examination and not now in appeal. He 6 submitted that a draft of the notice to be given to the JDs under Section 251 of Cr. P.C. as directed by the Hon'ble National Commission was given to the Forum inspite of which the substance of accusation was vaguely framed and explained, for which DHs should not be now penalized. In the alternative, Lr. Counsel for the JDs submitted that if this Court is inclined to remand the matter back for complying with the procedure prescribed in Cr. P.C., detailed directions be given so that the Forum should not commit the same mistakes again.
9. We have gone through the entire record and proceedings. We have considered the arguments advanced by Lr. Counsel for the parties and we have also gone through the citations.
10. Sub-sections (2) and (3) of Section 27 of the Act, inserted by Section 23 of the Consumer Protection (Amendment) Act, 2002 (62 of 2002) and which came into force w.e.f. 15/01/2003, provide as under:-
"(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 the Code of Criminal Procedure, 1973.
(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."7
11. The procedure for summary trials is stated in Section 262 of Cr. P.C. which provides 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.
12. Therefore, it is evident that the procedure to be followed, for the purposes of Section 27 of the Act is that which is mentioned in Sections 251 to 259 of Cr. P.C., i.e. for trial of summons cases.
13. The Hon'ble National Commission had observed that notice in terms of Section 251 of Cr. P.C. was not given to the JDs. Section 476 of Cr. P.C. provides that subject to the power conferred by Article 227 of the Constitution, the Forms set forth in the second schedule, with such variation as the circumstances of each case require, may be used for the respective purposes therein mentioned and if used shall be sufficient. The Form for issuing notice (summons) to the accused person is given as Form No. 1 in Schedule II of Cr. P.C. The said Form requires that the offence with which the accused person has been charged has to be shortly stated. As already stated above, on 29/09/2015, summons to accused person in Form No. 1 of Schedule II of Cr. P.C. was served on both the JDs. In this summons, the JDs have been informed in detail the particulars of the offence. Section 251 of Cr. P.C. provides that 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 it shall not be necessary to form a formal charge (underlining is our's).
8The perusal of the records of the Forum reveals that the Substance of Accusation framed and explained to both the JDs is as under:-
"Whereas you, ...................(name stated), resident of Fatorda Margao Goa having brought before this Forum for non complying with the order dated 05/05/2012 passed by this Forum i.e. Consumer Disputes Redressal Forum, South Goa Margao, state that you have committed an offence u/s 27 of Consumer Protection Act 1986. Do you plead guilty."
14. The above substance of accusation, in our considered view, is vague since the JDs have been merely informed that they having been brought before the Forum for non compliance of order dated 05/05/2012, have committed offence under section 27 of the Act. In fact the order which has not been allegedly complied with is dated 05/05/2010 and not 05/05/2012. The JDs were required to be made known the accusation against them through statement of the particulars of the offence. All necessary facts constituting the offence had to be stated. The provision of Section 251 Cr. P.C. is mandatory. The ingredients of the offence must be necessarily stated to the JDs. The particulars of the offence must be stated in such details as to give the accused (JDs) full information regarding the case which they had to meet. It is because of this casual approach and lapse on the part of the Forum, the impugned order which is of conviction and sentence inter alia to undergo imprisonment cannot stand and is bound to be quashed and set aside.
15. Section 254 of Cr. P.C. inter alia states that if the accused does not plead guilty, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced by the prosecution. In chapter 20 of Cr. P.C., for trial of summons cases, there is no provision for filing affidavit-in-evidence. As rightly contended by Mr. Sawant, Lr. Counsel for the JDs, Section 296 of Cr.
9P.C under which evidence by affidavits can be filed is applicable only to the evidence which is of formal character. Affidavit of witness not of a formal character but going to the root of the matter cannot be admitted in evidence, in trial of summons cases. The DHs and JDs are witnesses of facts.
16. In the case of "Moti Lan and Ors." (supra), the Allahabad High Court has observed thus:
"45. Therefore, the mode of examination and cross- examination of the witnesses is contained in Criminal Procedure Code and Evidence Act. The above procedure does not prescribe taking evidence of witnesses of fact on affidavit that too in absence of parties. However, Section 296 of the Criminal Procedure Code says that the evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code. The above section further says that the Court may, if it thinks fit, and shall, on the application of the prosecution or of the accused, summon and examine any such person as to the facts contained in his affidavit. Therefore, evidence of a witness may be given on affidavit provided the evidence of a particular witness is formal in character. The witnesses who filed affidavit, their evidence admittedly was not of a formal character, but they are the witness of the occurrence and therefore, their evidence could not be legally taken on affidavit."
17. In the case of "Naib Din", (supra), the Hon'ble Apex Court has held thus:
"8. What is meant by an evidence of a formal character? It depends upon the facts of the case. Quite often different steps adopted by police officers during the investigation might relate to formalities prescribed by law. Evidence, if necessary 10 on those formalities, should normally be tendered by affidavits and not by examining all such policemen in court. If any party to a lis wishes to examine the deponent of the affidavit it is open to him to make an application before the court that he requires the deponent to be examined or cross-examined in court. This is provided in sub-section (2) of Section 296 of the Code. When any such application is made it is the duty of the court to call such person to the court for the purpose of being examined".
18. The evidence of DHs and of the JDs is on facts of occurrence and it goes to the root of the case. The same cannot be held to be of formal character. In this matter, the Hon'ble National Commission has directed the Forum to strictly comply with the prescribed procedure of summons cases and to examine the DHs and their witnesses and to give opportunity to the JDs to cross-examine them; then to examine both the JDs under Section 313 of Cr. P. C.; then to examine the JDs and their witnesses and to give opportunity to the DHs to cross-examine them. Examination of an accused person under Section 313 of Cr. P.C. is not a mere formality. Therefore, the examination-in-chief held by way of affidavit-in-evidence cannot stand. The witnesses were bound to step the witness box and to state facts on oath. This having not been done, it cannot be said that the Forum has complied with the directions of the National Commission. Entire exercise from the stage of explaining substance of accusation will have to be repeated and done in accordance with law. That which has been already done that is to say the substance of accusation already framed and explained, affidavits-in-evidence of both parties filed, cross-examination done, statements under Section 313 of Cr. P.C recorded, shall all be totally discarded. None of the parties shall be allowed to take any advantage of the same for any purpose.
1119. The impugned order is therefore liable to be quashed and set aside and the matter remanded back to the Forum in order to comply with the procedure envisaged in chapter 20 of Cr. P.C. for trial of summons cases, from the stage of explaining substance of accusation.
20. In the result, the following order is passed:-
(a) The impugned order dated 21/01/2016 is quashed and set aside.
(b) The application under Section 27 of the Act shall be decided afresh after strictly complying with the procedure prescribed in Cr.
P.C. for trial of summons cases.
(c) The Forum shall frame and explain the substance of accusation to the JDs properly by mentioning particulars of offence preferably as mentioned in the summons and record pleas of both the JDs. If the JDs plead not guilty, the Forum shall proceed to examine the DH/s and their witnesses, if any, orally and not by of affidavits and then permit the JDs to cross-examine them. Thereafter, the Forum shall examine the JDs under Section 313 of Cr. P.C. and then shall take evidence of the JD/s and their witnesses, if any, orally and not by way of affidavit-in-evidence and permit the DHs to cross-examine them. Thereafter, after hearing both the parties the Forum shall pass fresh order in accordance with law.
(d) The above exercise shall be carried out by the Forum as expeditiously as possible and in any case within a period of three months from the date of appearance of the parties before it.
(e) The DHs as well as JDs are directed to co-operate by remaining present before the Forum failing which the Forum may procure their presence by issuing appropriate processes.
12(f) The parties shall appear before the Forum on 11/04/2016 at 10.30 a.m..
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
sp/-