State Consumer Disputes Redressal Commission
Shamlal Ramlal Changoiwala vs Dr.Mukund Jagannath Bhusari on 1 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/15/207 (Arisen out of Order Dated 03/02/2015 in Case No. cc/14/56 of District Akola) 1. Shamlal Ramlal Changoiwala Prop Changoiwala Industries Near Shakil Garraige Toshniwal Layout Akola Dist.Akola Akola Mah ...........Appellant(s) Versus 1. Dr.Sau.Renuka Mukund Bhusari Agarwes Road Old City Akola Akola Mah ...........Respondent(s) First Appeal No. A/15/208 (Arisen out of Order Dated 03/02/2015 in Case No. cc/14/57 of District Akola) 1. Shamlal Ramlal Changoiwala Prop Changoiwala Industries Near Shakil Garriage,Toshniwal Layout Akola Akola Mah ...........Appellant(s) Versus 1. Dr.Mukund Jagannath Bhusari Agarwes Road,Old City,Akola Dist.Akola Akola Mah ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Mr J M Gandhi, Advocate For the Respondent: Mr R P Goenka, Advocate Dated : 01 Aug 2017 Final Order / Judgement Per Mr B A Shaikh, Hon'ble Presiding Member
1. Both these appeals are being disposed of by this common order as common questions of law & facts are involved in both the appeals.
2. Both the appeals are filed by the same opposite party feeling aggrieved by the two identical orders dtd.03.02.2015 passed by District Consumer Forum, Akola (for short Forum below) in two consumer complaints bearing Nos.2014/56 & 2014/57, by which both the complaints have been partly allowed.
3. The common case of the original complainants / respondents herein as set out by them in their respective complaint filed before the Forum below in brief is as under.
The complainant Dr. Mukund Jagannath Bhusari who filed complaint bearing No.2014/57 is the husband of the complainant Dr.Renuka Mukund Bhusari, who filed complaint bearing No. 2014/56. The opposite party namely Shamlal Ramlal Changoiwala in both the complaints is the proprietor of Changoiwala Industries and he accepts deposits from citizens through his agents. The complainants deposited with him Rs.2.50 Lacs and Rs.3.00 Lacs respectively on 29.10.2009 and 28.03.2007 by tendering to him two cheques of the aforesaid amounts drawn on the Bank of Maharashtra. The opposite party encashed those cheques and issued deposit receipts, which are filed on record. The opposite party had agreed to pay interest @ 1.35 % p.m. over Rs.2.50 lacs and @ 1.40% p.m. over Rs.3.00 Lacs to the respective complaint. He paid the interest till 31.03.2011 only in respect of both the deposits. When the complainants requested him to make payment of further interest, he issued one cheque for Rs.2.50 Lacs and another cheque for Rs.3.00 Lacs to the respective complainant towards refund of the entire deposit amounts. Both cheques were dishonoured by the concerned bank respectively on 04.05.2012 & 03.05.2012 with a written memo mentioning "Account closed". Therefore, both respective complainants issued notices dtd.08.05.2012 to the opposite party. Thereafter also the amounts were not paid by the opposite party. Therefore, the complainants filed criminal complaint before the Judicial Magistrate First Class, Akola against the opposite party for the offence punishable under Section 138 of Negotiable Instrument Act (for short NI Act). Thus, alleging deficiency in service on the part of opposite party the aforesaid two consumer complaints were filed by the complainants before the Forum below seeking direction to the opposite party to pay to the respective complainant principal amount of Rs.2.50 Lacs & Rs.3.00 Lacs and also to pay to the respective complainant Rs.1.23 Lac and Rs.1.53 Lac towards interest with stipulated rate for the period from 01.04.2011 to 31.03.2014 and further to pay each of them notice charges of Rs.1,500/-, compensation of Rs.20,000/- for physical & mental harassment and litigation cost of Rs.5,500/-. Thus, the respective complainant claimed total amount of Rs.4.00 Lacs & Rs.4.80 Lacs in the aforesaid two complaints from the opposite party.
4. The opposite party appeared before the Forum below in both the complaints and resisted the same by filing identical reply to each of the complaint. The common case of the opposite party as set out in his reply in brief is as under.
It is admitted that opposite party accepts deposits and pays interest thereon. But the complainants do not fall within the definition of "Consumer" as the transactions in question, are made for commercial purpose only. Moreover, the requisite stamp duty is not paid on the receipts / promissory note, relied on by the respective complainant and therefore the same cannot be read in evidence. The transaction as per the said receipts is a loan transaction and it is not a transaction relating to deposit. Both the complaints are barred by limitation since they are not filed within two years from the date of said receipts. The complaints before the Forum below are not maintainable under Consumer Protection Act, 1986 (for short CPA). It is denied that the cheques issued by the opposite party have been dishonoured by the bank. Therefore, original opposite party / appellant had requested that both the complaints may be dismissed with cost.
5. The Forum below after hearing both parties and considering evidence brought on record, made observations in the impugned order, in brief as under.
The complaint filed by the complainant Mukund Bhusari on behalf of his wife Smt R M Bhusari, bearing consumer complaint No.2014/56 is legal & proper. The complaints are not barred by limitation. The complainants fall within the definition of "Consumer" and the opposite party falls within the definition of "Service provider" in view of the transaction made in between both the parties. The receipts filed on record can be read in evidence as they are simply the deposit receipts and not promissory notes. The deposits were made with the opposite party for earning livelihood of both the complainants in future and to meet with their needs in future and therefore it cannot be said that the deposits were made purely for commercial purpose. The cheques issued by the opposite party were dishonoured by the bank with endorsement as "Account closed". It is proved that the opposite party rendered deficient service to the complainants and adopted unfair trade practice. Therefore, the complainants are entitled to refund of deposited amount with interest, compensation and cost. Therefore, the Forum below partly allowed both the complaints and directed the opposite party in complaint No.2014/56 to refund to the complainant Smt Renuka M Bhusari Rs.2.50 Lacs with interest @ 9% p.a. w.e.f. 31.03.2011 till payment of full amount to her and also to pay her compensation of Rs.5,000/- for physical & mental harassment and cost of Rs.3,000/-. The Forum in another complaint bearing No.2014/57 directed the opposite party to refund to the complainant Mukund J Bhusari Rs.3.00 Lacs with interest @ 9% p.a. w.e.f. 31.03.2011 till payment of full amount to him and also to pay him compensation of Rs.5,000/- for physical & mental harassment and cost of Rs.3,000/-.
6. As observed above feeling aggrieved by both the said identical orders, the original opposite party has filed these two appeals.
7. We have heard learned advocate Mr Gandhi appearing for the appellant and learned advocate Mr Goenka appearing for respondents. We have also perused the material placed before us by both the parties.
8. The learned advocate of the appellant in his argument reiterated the aforesaid case of the original opposite party and relied on the decisions in the following cases.
i. Laxmi Engineering Works Vs. PSG Industrial Institute, 1995(3) BOM.CR (Cons) - 3.
In that case the Hon'ble Supreme Court observed that remedy in Consumer Protection Act, 1986 regard to goods and services is provided between "business and consumer" and not between "business to business". It is further observed that consumer means one who buys goods and or services for consideration paid or promised for his own consumption, or use by him by means of self employment to earn his livelihood, but it does not include goods purchased for "commercial purposes".
ii. Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 4 Supreme Court Cases 225.
The Hon'ble Supreme Court in that case held that prospective investor in future goods not a consumer as per definition under Consumer Protect Act, 1986. It is further held that applicant for allotment of shares of company, being a prospective investor, is not a consumer.
iii. Chairman, Thiruvalluvar Transport Corporation Vs. Consumer Protection council, 1995(2) Bom.C.R. (Cons) 34.
In that case, it is held that in case of claim for death caused in motor accident, it cannot be said that said claim is in respect of service hired or availed of services and that injuries sustained had nothing to do with the services provided.
iii. Jagmittar Sain Bhagat & Ors. Vs. Director, Health Services, Haryana & Ors., (2013) 10 Supreme Court Cases 136.
In that case, the Hon'ble Supreme Court held that merely because State had not objected to maintainability of consumer complaint in regard to a pure service dispute, it did not mean that Consumer Forum thereby stood clothed with power to entertain complaint in service matters against the State. If a Court having no jurisdiction over a matter passes a decree, it would amount to nullity.
v. Kalpavruksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt Ltd & Anr., (2000) 1 Supreme Court Cases 512.
The Hon'ble Supreme Court in this case observed that an activity which is basically commercial in nature may either earn profit or incur loss, but incurring of loss would not make the activity, a "non-commercial" activity. In a commercial activity, financial gain is a dominant object, but if the activity is not properly supervised or is not properly conducted, it may bring in loss instead of profit. But this would not, as pointed out above, change the nature of activity. It is another matter that the profit earned by the Trust was ultimately spent on charity, but for that too, there is no evidence on record. Even if it were so, the activity in running a Diagnostic Centre where free diagnostic aid was not provided to the patients and whatever was done was for monetary consideration, the activity would essentially remain a "commercial" activity with the result that the Trust would not be a "consumer" within the meaning set out in Section 2(d)(i) of the Act. The finding of the Commission, therefore, in this regard cannot be disturbed.
vi. Punjab University Vs. Unit Trust of India & Ors., (2015) 2 Supreme Court Cases 669.
The Hon'ble Supreme Court in this case held that explanation to S. 2(1)(d)(ii) being clarificatory in nature, the term "commercial purpose" must be interpreted considering facts and circumstances of each case. In the instant case, services of respondent having been availed by appellant University for betterment of its employees and not to benefit from profit accruing out of said deposit as a business activity, appellant could not be said to be indulging in any "commercial activity. Further, intent of depositor is not profiteering and investment is made not for any commercial purpose or gain except for benevolent interest of its employees. Thus, held, appellant falls within definition of "consumer" and complaints are maintainable before Consumer Forums. But on merits, since all investments in mutual funds are subject to market risks and fluctuations and investor has to exercise due caution while investing any amount in any scheme, held investor cannot drag service provider to court because maturity amount is below expectation.
vii. Bunga Daniel Babu Vs. Sri Vasdeva Constructions & Ors., (2016) 8 Supreme Court Cases 429.
In this case, the Hon'ble Supreme Court held that though the decision in the case of Punjab University Vs. Unit Trust of India was rendered in a different context, yet the principle that commercial purpose is required to be interpreted considering the facts and circumstances of each case has been reiterated in it. The Hon'ble Supreme Court concurs with the same in this case of Bunga Daniel Babu.
viii. Premlaxmi & Co., Mumbai Vs. Ingersoll Rand (India) Ltd., Bangalore & Anr., 2011 (1) Mh.L.J.178.
In this case it is held that in case of transaction in connection with commercial purpose the provisions of the Consumer Protection Act, 1986 will have no application.
ix. Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, 2009(4) Mh.L.J., 349.
It is observed by Hon'ble Supreme Court in this case that instrument which is not duly stamped is inadmissible in evidence. Purpose for which a document is sought to be admitted in evidence is not relevant factor for not invoking the provisions of Section 35 of Stamp Act and bar against admissibility of an instrument, as chargeable with stamp duty and is not stamped, is absolute.
x. Ishwar Dutt, Vs. Land Acquisition Collector & Anr., AIR 2005 Supreme Court 3165.
The Hon'ble Supreme Court has held in this case that High Court although has wide power in terms of S. 107 of C.P.C., but it could not go outside pleadings and make out a new case.
xi. Veera Exports Vs. T. Kalavathy, 2002 Supreme Court Cases (Cri) 85.
The Hon'ble Supreme Court observed in this case that the High Court held that the six months' validity period of the cheques having expired in October 1995, the cheques could not be revalidated by altering the dates. The High Court further held that the respondent not being a willing party to the said alteration, the cheques were void as contemplated by Section 87. Therefore, the High Court quashed the complaint.
9. The learned advocate of the appellant also submitted that cheques filed on record are manipulated by respondents by changing their dates. The learned advocate of the appellant further submitted that both the respondents herein are the doctors by profession and they have got roaring practice and they invested money only for earning profits and therefore deposit of money for commercial purpose is excluded from the purview of the provisions of Consumer Protection Act, 1986.
10. Moreover, he also argued that both the complaints are barred by limitation. He relied on the admission given by the complainant Mr Mukund J Bhusari in Criminal Case filed under Section 138 of N.I. Act and thus submitted that the Forum has not considered these material aspects of the case and erred in partly allowing the complaints and he, therefore, requested that both the impugned orders may be set aside by allowing the appeals.
11. On the other hand, the learned advocate of the respondents supported the impugned orders and relied on the decisions in the following cases.
i. Neela Vasant Raje Vs. Amogh Industries and Anr., III (1993) CPJ 261 (NC) In this case, the Hon'ble National Commission held that the default on the part of the company to repay the principal and / or interest constitutes deficiency in service.
ii. K Kasi Annapurna Vs. Smt Vemuri Bharathi, I(1996) CPJ 43 (NC).
In this case, the Hon'ble National Commission held that it is well settled that the failure to refund the amounts deposited with any financial institution on maturity will amount to deficiency in service.
iii. M/s Digambar & Co. Vs. Ajay Basant Kumar Agrawal, decided by the Hon'ble National Commission on 26.10.1999 in Revision Petition bearing No.1958/1999.
In this case, the petitioner has taken deposit but failed to return. The District Forum directed refund of the amount with interest. Petitioner's contention was that the order is without jurisdiction as it is not a fit case to be tried under Consumer Protection Act. However, the Hon'ble National Commission declined to agree with the said contention of the petitioner and dismissed the revision.
iv. M/s Shree Mahesh Industries Vs. Shri Murlidhar Gokuldas Tawari & Ors., decided by S.C.D.R.C. Mumbai, Maharashtra on 22.10.2001 in Appeal No.1457/2001.
It is held that the subject of the complaint where the opposite party, who accepted the deposits with assurance to repay and fails or refuses to refund the amount on demand to depositors, would constitute deficiency in service, within the meaning of Consumer Protection Act, 1986.
v. M/s Mahesh Industries Vs. Shri Murlidhar Gokuldas Tawari & Ors., decided by N.C.D.R.C. New Delhi, on 09.07.2002 in Revision Petition No.296/2002.
In this case, the Hon'ble National Commission affirmed and upheld the aforesaid order of State Consumer Disputes Redressal Commission, Mumbai, Maharashtra passed in appeal No.1457/2001.
vi. M/s Mahesh Industries Vs. Shri Murlidhar Gokuldas Tawari & Ors., decided by Hon'ble Supreme Court on 20.09.2002 in I.A. No.1 in CC No.7255/2002.
The Hon'ble Supreme Court dismissed the SLP and confirmed and upheld the aforesaid decision of Hon'ble National Commission passed in Revision Petition No. 296/2002.
vii. Rajesh Paleram Gupta & Anr. Vs. Geetadevi Damodar Agrawal, decided by S.C.D.R.C., Maharashtra on 05.08.2002 in Appeal No.1186/2001.
In this case, the learned State Commission upheld the order of District Consumer Forum holding that the opposite party provided deficient service and order passed to refund the amount to the complainant with interest since there was failure on the part of the opposite party to honour his commitment of refunding the amount deposited with him by the complainant with assured interest, as proper and further held that such claims are amenable to the jurisdiction of Consumer Fora under the provisions of Consumer Protection Act, 1986 viii. Sanjay Kumar Ahuja Vs. Shanta Rani & Ors., II(2003) CPJ 113 (NC).
It is held that when the amount lying deposited with the petitioners was not disputed and it was also not disputed that petitioners had been taking various amounts from various parties and crediting the same in their accounts and paying interest on that, it could not be said that complaints did not raise the consumer dispute.
ix. Miss Anju Saini Vs. Golden Projects Ltd., IV(2003) CPJ 661, Union Territory Consumer Disputes Redressal Commission, Chandigarh.
In this case, post dated cheques issued for maturity value were dishonoured by Bank on presentation. Therefore, it is found that the deficiency in service is proved and it is held that the opposite parties are liable to refund the amount with interest.
x. Basavraj Vibhuti & Anr. Vs. Channabasavayya G Hiremath & Ors., II (2008) CPJ 162 (NC) It is held that "service" defined under Consumer Protection Act includes financial services. The order of the District Forum directing payment of depositors' defaulted amount with interest is upheld.
xi. Bhagwan Dass Bhatia Vs. Ceat Financial Services, II(2008) CPJ 106.
In this case, it is observed that respondent No.1 has to render the service of making the payments of the deposited amounts alongwith the agreed rate of interest thereon and on account of failure to make the payments it is a breach of contract for service and as such the act falls within the ambit of Consumer Protection Act, 1986.
xii. Kishore Lal Vs. Employees State Insurance Corporation, I(2008) CPJ 13 (SC).
The Hon'ble Supreme Court in this case held that services hired for consideration even for commercial purposes are not excluded. The term "Service" unambiguously indicates in the definition that the definition is not restrictive and includes within its ambit such services as well which are specified therein. However, a service hired or availed, which does not cost anything or can be said free of charge, or under a contract of personal service, is not included within the meaning of 'service' for the purpose of the Consumer Protection Act, 1986.
xiii. Bhirad Brothers Real Estate Developers Vs. Sau. Rekha Goenka, decided by SCDRC, Maharashtra, Circuit Bench, Nagpur on 11.04.2011, in Revision Petition No.RP/09/53.
In this case the order passed by the District Forum was found just & proper whereby objection of opposite party was rejected. The said objection was made for challenging the maintainability of the complaint on the ground that the unpaid deposit's case does not come within the purview of the definition of "consumer" as defined under Consumer Protection Act, 1986.
xiv. Kaveri Telecom Ltd Vs. Vijaya Bank & Anr., IV(2014) CPJ 302 (NC).
It is held in this case that a person who obtains goods for resale or for any commercial purpose is excluded but services hired for consideration, even for any commercial purposes are not excluded and the Complainant is a consumer.
xv. Bhirad Brothers Real Estate Developers Vs. Sau. Rekha Goenka, decided by SCDRC, Maharashtra, Circuit Bench, Nagpur on 16.06.2015, in appeal No.A/14/168.
It is held that the appellants have invited deposits from the respondents and the respondents made deposits and the appellant paid interest over the deposits. Therefore, it is held that the as respondents availed the services of appellants they are consumers and the appellants are service providers as per definition given under Consumer Protection Act, 1986.
xvi. K A Sairabanu Kapali House Vs. K J Vasudevan & Amp. & Ors., decided by NCDRC on 23.05.2016 in Revision Petition No.1277 of 2016.
The Hon'ble National Commission in this case held that the plea taken by the petitioner that the complainant was not consumer under Consumer Protection Act, 1986, is also not tenable because a person, who has made deposit with the firm expecting financial returns on the same, is a consumer.
xvii. Kavita Ahuja Vs. Shipra Estate Ltd & Jai Krishna Estate Developers, I(2016) CPJ 31 (NC).
It is held in the said case that a person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may also invest his surplus funds in Bank deposites, shares, mutual funds, Bonds, etc. He may invest his surplus funds in purchase of one or more houses, which is / are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house(s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house(s) xviii. VEA Annamalai Chettiar & Ors. Vs. SVVS Veerappa Chettir & Ors., AIR 1956 Supreme Court 12.
It is held that even though the transaction is a transaction of deposit, the deposit can be coupled with an agreement that it will be payable on demand. Such agreement can be express or implied and if an express agreement in that behalf is recorded in the document, the transaction of deposit cannot be thereby converted into a transaction of loan and the words "We shall pay the said sum" cannot convert the document into a promissory note.
It is further held that where a document has been admitted in evidence by lower Courts such admission cannot be called in question at any stage of the proceedings on the ground that it has not been duly stamped. The provisions of S. 36 of Stamp Act, 1899 preclude the appellant from raising any objection against the admission of the document at appellate stage.
xix. Kundan Mal Vs. Nand Kishore & etc., AIR 1994 Rajasthan 1, (Rajasthan High Court).
It is held that affixing of a particular stamp is not a conclusive proof of nature of document, but is a relevant consideration about the intention of the parties as to what the parties intended the document to be. The parties are members of business community. The documents bear revenue stamp of 20 Paise which is requisite for a receipt. By affixing a stamp of 20 Paise in a document which starts with recital of receipt of consideration with a promise to pay gives a strong clue to the intention of the parties that the parties were aware with the stamp law and their primary intention was to execute the document as an evidence of receipt.
xx.Jamshed Khurshed Setna Vs. Ruparel Finance Corpn., LAWs (BOM) 2003 1 - 157.
In that case it was a deposit receipt dated 18.12.1993 and the amount and the same was demanded by letter dated 23.11.2000. Contents of that document showed that it is a deposit payable on demand. It is held that the defence that the claim is time barred is liable to be rejected in view of Art. 22 of Limitation Act.
xxi. Basant Lal Agrawal Vs. Lloyds Finance Ltd, LAWS (BOM) 2003 11 - 7.
In that case, it was found that petitioner deposited amount on 06.12.1996. The terms & conditions agreed between the parties showed that the amount was payable on demand. The amount was demanded by notice dated 16.04.2002. It is held that the defence that the claim is time barred is liable to be rejected in view of Art. 22 of Limitation Act.
xxii. K Najappa ( dead) by L.Rs. Vs. R. A. Hameed alias Ameersab ( dead) by L.Rs. and Anr., 2016(4) Mh.L.J.1.
It is held in the said case by Hon'ble Supreme Court that evidence and finding recorded by Criminal Courts in Criminal Proceedings cannot be the conclusive proof of existence of any fact, particularly the existence of agreement to grant a decree for specific performance without independent finding recorded by the Civil Court.
12. The learned advocate of the respondents, thus, submitted that as both the respondents kept fixed deposits with the appellant considering their needs in future and therefore, it cannot be said that they invested money purely for commercial purpose. He also argued that both the complaints are filed within two years from the date when the demand was made by the respondents by legal notice dtd. 08.05.2012 and amounts were not paid the by the appellants to them and hence both the complaints are within limitation. He also submitted that the alleged admission given before the Criminal Court has got no relevancy in the present matter. He, therefore, requested that both the appeals be dismissed with cost.
13. Thus, we find that making of deposit of Rs.2.50 Lacs and Rs.3.00 Lacs by the respective complainant / respondent with the appellant respectively on 29.10.2009 and 28.03.2007 and payment of interest over the same till 31.03.2014 by the appellant to them are the material facts, which are not disputed.
14. At the outset, we find that allegations about manipulation of dates of two cheques filed on record, is a question which is to be considered by Criminal Court and that is not of any importance in these proceedings. Moreover, no plea was raised by the appellant before the Forum below about manipulation of cheques.
The appellant has raised the legal questions as above in this appeal, which we proceed to consider. We find that though both the respondents are doctors by profession, it cannot be said that they invested aforesaid amounts with the appellant for purely commercial purpose. A single transaction of deposit of money is made with the appellant by the each of respondent and that too the amounts deposited by them are not large. Hence, it can be said that amounts were deposited by them with the appellant considering their needs in future.
15. Moreover, we find that there is no evidence to show that the income of both the respondents is such that they will not be in need of any such amount in future for maintaining their livelihood. Considering all these facts & circumstances, we find that the appellant failed to prove that the transactions made by the respondents with the appellant, is purely for commercial purpose. So also there is no evidence to show that transactions under two receipts filed on record are loan transactions. We find that said transactions are about making of deposits with contract to pay interest and to refund on demand to respondents.
16. We also find that it is not disputed that the appellant paid them interest over the deposited amount till 31.03.2011 of which necessary entries are recorded on the reverse side of both the receipts. Moreover, it is also not disputed that the respondents for the first time demanded their deposited amount vide notice dtd.08.05.2012. It is also not disputed that the cheques were issued by the appellant to the respondents for the refund of aforesaid principal amounts to the respondents, but they were dishonoured by the bank on 03.05.2012. The complaints were filed before the Forum below on 29.03.2014 i.e. within two years from 03.05.2012. Therefore, we hold that both the complaints are not barred by limitation.
17.We also find that one of the respondents namely Mukund J Bhusari in his cross-examination in summary Criminal case No.1296/2012 gave a very vague admission before the Judicial Magistrate First Class that the amount given by him to appellant herein is of commercial nature. In our view, said vague admission cannot be used in these complaints particularly when the complaints before the Forum are maintainable as the services are not hired by respondents for pure commercial purpose. The complaints are maintainable before the Forum below if the services are hired for maintaining livelihood by means of self employment. In the instant case, we have found that there is no evidence to show the actual income of both the respondents by medical profession. Therefore, it cannot be presumed that the services of the appellant were hired by them for pure commercial purpose.
18. We find that in these proceedings the appellant cannot raise plea that receipts cannot be read in evidence as they are insufficiently stamped. We also find that both deposit receipts have been properly stamped and they are rightly considered by the Forum below and the Forum below has rightly come to the conclusion under impugned order.
19. The aforesaid decisions relied on by the learned advocate of the appellant are not applicable to the facts & circumstances of the present case since these are totally different from those of said cases, discussed above.
20. On the contrary, we find that the decisions relied on by the learned advocate of the respondents are applicable to the present case, since the facts & circumstances of the present case are identical to those of the said cases, discussed above.
21. We, therefore, find no merits in both the appeals and they deserve to be dismissed.
ORDER i. Both the appeals bearing Nos. A/15/207 & A/15/208 are hereby dismissed. ii. No order as to costs in both these appeals. iii. Copy of the order be furnished to both parties free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER