State Consumer Disputes Redressal Commission
Rakesh Chandra Kaushik vs Sukesh Jain And Others on 9 October, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
CONSUMER COMPLAINT NO. 15 / 2013
Sh. Rakesh Chandra Kaushik S/o Sh. Suresh Chandra Sharma
R/o 44/47, Nari Shilp Mandir Marg
Near Jack and Jill Academy
Dehradun
......Complainant
Versus
1. Sh. Sukesh Jain S/o Sh. Narottam Chand Jain
Proprietor Sukesh Jain Capital Services Pvt. Ltd.,
United Share Brokers Limited,
Sukesh Jain Commodities Pvt. Ltd.,
Sukesh Jain Capital Services Pvt. Ltd. and
Globe Capital Market Ltd., Jai Plaza
56, Rajpur Road, Dehradun
2. Sh. Siddharth Jain S/o Sh. Sukesh Jain
3. Sh. Chirag Jain S/o Sh. Sukesh Jain
All R/o 55, Guru Road
Laxman Chowk, Dehradun
Second address: 37, Pipal Mandi
Dehradun
......Opposite Parties
Sh. R.K. Gupta, Learned Counsel for the Complainant
Sh. C.S. Verma, Learned Counsel for Opposite Parties
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 09/10/2014
ORDER
(Per: Justice B.C. Kandpal, President):
This consumer complaint under Section 12 read with Section 18 of the Consumer Protection Act, 1986 has been filed by Sh. Rakesh Chandra Kaushik (hereinafter referred to as "complainant") against the opposite parties, alleging unfair trade practice on their part.2
2. Briefly stated, the facts of the case are the complainant is a retailer of computer parts and is running the business under the name and style of M/s Hindustan Computers and Peripherals. For the past few years, the complainant was investing a part of his earnings in shares. On 06.07.2010 at about 2:00 p.m., one person with the name of Sh. Arun came in the office of the complainant and asked the complainant that he can earn good profit by making investment in shares. The said person Sh. Arun told the complainant that his employer - opposite parties know every person of the State of Uttarakhand who makes investment in shares. The complainant found the version of Sh. Arun very strange and asked him that he does not want to invest in shares and asked him to leave. In the meantime, Sh. Arun asked the complainant to talk with his employers on telephone, to which the complainant refused. On 26.07.2010, Sh. Arun again came in the office of the complainant and gave different sorts of proposals to the complainant and said that Sh. Sukesh Jain - opposite party No. 1 and both his sons, namely, Sh. Siddharth Jain and Sh. Chirag Jain - opposite party Nos. 2 and 3 respectively have good knowledge of share market. On repeated requests of Sh. Arun, the complainant visited the office of Sukesh Jain Capital Services Pvt. Ltd., Jai Plaza, 56, Rajpur Road, Dehradun in the last week of July, 2010. When the complainant visited the office of the opposite parties, Sh. Arun was not present there and on inquiry, the opposite party No. 2 told that Sh. Arun has been transferred to Main Branch of the company at Noida. Thereafter, opposite party Nos. 1 and 2 gave information to the complainant about the share business and told that they have their men in every company, who give them certain information and they have knowledge of hike and fall in the price of shares of different companies. The complainant told them that he is a small businessman and wants to invest his earning in shares and asked 3 the opposite parties to invest his amount in shares of good companies. The complainant also directed the opposite party Nos. 1 and 2 not to invest his amount in shares without his consent and to give periodic information regarding his share account, to which the opposite party Nos. 1 and 2 agreed. Upon the assurance given by the opposite party Nos. 1 and 2, the complainant agreed for opening of DMAT Account. The complainant was told that without the trading account, the shares can not be purchased, on which the complainant also asked for opening the trading account. The signatures of the complainants were obtained on certain blank forms.
3. The opposite parties opened the DMAT Account and Trading Account of the complainant with them bearing DMAT Account No. 1202060200025032 and Trading Account No. 6918 respectively. On 31.07.2010, the opposite party No. 2 took a cheque of Rs. 50,000/- from the complainant in the name of United Share Brokers Limited. Thereafter, the opposite parties took 33 cheques from the complainant for the period from 31.07.2010 to 31.03.2011 for total sum of Rs. 17,76,079.40/-. All the cheques were taken in the name of United Share Brokers Limited and the proceeds of the cheques was transferred from the account of the complainant to the account of United Share Brokers Limited. The complainant had also personally purchased shares to the tune of Rs. 1,57,449/-, with which the opposite parties had no concern whatsoever and the said shares were also transferred in the DMAT Account of the complainant with the opposite parties. This way, the opposite parties had sum of Rs. 19,33,528.40/- of the complainant with them. The complainant several times met the opposite parties and inquired about the profit earned on his invested amount, but the opposite parties did not pay any heed and the complainant was asked not to worry. The complainant asked the opposite parties to refund his amount, but the 4 opposite parties did not refund the amount and every time, new forms were got signed from the complainant. When the complainant met his Chartered Accountant for audit of his concern for the financial year 2010-11, the Chartered Accountant asked the complainant to submit the details of 33 cheques which the complainant had given to the opposite parties for the period from 31.07.2010 to 31.03.2011.
4. The complainant asked the opposite parties to provide details of use of the said 33 cheques, but the opposite parties kept on lingering the matter from April, 2011 to 10.07.2011 and when on 11.07.2011, the complainant visited the office of the opposite parties without any intimation to them, he met the opposite party No. 2 there, to whom he requested for refund of his amount. The opposite party No. 2 told the complainant that he has earned a profit of more than Rs. 90,000/- and details of his account would be given to him on 13.07.2011. On 13.07.2011, the details of his account were given to the complainant, wherein a profit of Rs. 92,809.68/- was shown. On 14.07.2011, the opposite party No. 2 again called the complainant to their office and gave certain proposals to the complainant, to which the complainant did not agree and asked for refund of his amount, but the opposite party No. 2 insisted the complainant to make investment and got the blank slips of the DMAT Account signed from him. The opposite parties assured the complainant that all the transactions in his account would be done with his consent. On 23.08.2011, the opposite parties again called the complainant in their office and asked the complainant to open a commodity account with Sukesh Jain Commodities Pvt. Ltd. and the opposite parties opened the commodity account No. 6918 of the complainant and malafidely took 4 cheques from the complainant for the period from 26.08.2011 to 22.11.2011 to the tune of Rs. 3,30,000/-. The said cheques were duly encashed. This apart, for the period from 01.04.2011 to 02.06.2012, the opposite parties took a 5 sum of Rs. 12,80,000/- from the complainant vide 13 cheques and 4 demand drafts. The said cheques and demand drafts were taken in the name of United Share Brokers Limited and the same were duly encashed. Besides the above amount, the shares of Rs. 1,15,553/- were also lying credit in the DMAT Account of the complainant which the complainant had personally purchased through I.P.O. This way, the opposite parties had shares of Rs. 37,51,951.06/- with them of the complainant, but the opposite parties were not giving any details thereof to the complainant.
5. The complainant asked the opposite parties to give detail of his account, but to no avail. On 05.06.2012, the opposite parties called the complainant at their office at Pipal Mandi, Dehradun. The complainant visited the office of the opposite parties, where the opposite parties told the complainant that in his trading account with United Share Brokers Limited, sum of Rs. 7,09,552.74/- is left balance and sum of Rs. 1,08,941.34/- is left balance in his commodity account with Sukesh Jain Commodities Pvt. Ltd. The complainant asked the opposite parties that he has not done the purchasing and selling of any shares, nor his consent for purchasing and selling of any shares was taken by the opposite parties. The complainant asked the opposite parties to refund his amount and to return the instruction slips got signed from him and not to do any trading in his DMAT Account, Trading Account and Commodity Account. The opposite parties asked the complainant to give sum of Rs. 10,00,000/-. On 09.06.2012, the complainant gave a cheque No. 024919 (without date) of Rs. 10,00,000/- to the opposite parties in the name of Sukesh Jain Capital Services Pvt. Ltd. On 13.06.2012, the opposite party No. 2 sent his employee at the concern of the complainant and told that the opposite parties have granted loan to the complainant and the opposite parties have demanded sum of Rs. 15,000/- towards the advance 6 interest. The complainant was also asked by the opposite party No. 2 to give a cheque of Rs. 2,00,000/- to the said person, to which the complainant did not agree. Thereafter, the complainant several times met the opposite parties and asked for refund of his amount, but to no avail. On 28.06.2012, the complainant visited the office of the opposite parties and asked the opposite party No. 2 for refund of his amount, upon which the complainant was told that all his amount had become bad debt and the complainant has to give sum of Rs. 59,000/- to the opposite party No. 2. The complainant had sent an e-mail to the opposite parties on 29.06.2012 and 30.06.2012 not to do any trading in his DMAT and Trading Account. It is alleged that the opposite parties have cheated the complainant and grabbed a sum of more than Rs. 37,00,000/- from him and have misused the said amount without the consent of the complainant. The complainant has also lodged an FIR against the opposite parties and the criminal proceedings are pending against them. Thus, alleging unfair trade practice on the part of the opposite parties, the complainant filed the present consumer complaint (Paper Nos. 1 to 16) before this Commission on 23.10.2013, praying therein that the opposite parties be directed to pay sum of Rs. 37,66,951.06/- to the complainant together with interest at prevalent bank rate and Rs. 5,00,000/- towards mental agony and the opposite parties be further directed to pay litigation expenses to the complainant.
6. The opposite parties filed written statement (Paper Nos. 38 to
92), thereby denying the allegations made by the complainant in the consumer complaint and pleaded that the complainant has been making investment in shares since past; that the opposite parties do not know any person with the name of Sh. Arun; that they have not given any assurance to the complainant in regard to opening his DMAT Account and Trading Account with the opposite parties; that 7 no blank forms were got signed from the complainant; that the complainant had given his e-mail address for correspondence, but the opposite parties found that the said e-mail address was not in use; that the complainant had given his new e-mail address to the opposite parties for correspondence, which fact has been concealed by him in the consumer complaint; that all the cheques issued by the complainant were deposited in the account of the company; that the complainant never had his DMAT Account with United Share Brokers Limited; that the opposite parties have always bonafidely discharged their duties towards the complainant and that the complainant was not forced to make investment in shares.
7. The opposite parties have further pleaded that all the details of trading account of the complainant were duly sent at the e-mail address of the complainant and also on his mobile number by way of SMS, against which the complainant did not lodge any complaint with them; that the complainant had voluntarily signed the instruction slips and handed over the same to the opposite parties; that the opposite party No. 1 is one of the Directors of United Share Brokers Limited and opposite party Nos. 2 and 3 are the employees of United Share Brokers Limited; that the opposite parties have got no concern with the management of Globe Capital Market Ltd.; that opposite party Nos. 1 and 3 are the Directors of Sukesh Jain Commodities Pvt. Ltd.; that the opposite party No. 2 has got no concern with Sukesh Jain Commodities Pvt. Ltd.; that the opposite party No. 1 is the Director of Sukesh Jain Capital Services Pvt. Ltd., whereof the opposite party No. 2 is an employee and opposite party No. 3 has got no concern with Sukesh Jain Capital Services Pvt. Ltd.; that the complainant is fully aware of share market business as he is dealing in shares since past few years; that the complainant also makes investment in future trading; that the opposite parties have not misused the funds of the 8 complainant; that the complainant has lodged complaint against the opposite parties with National Stock Exchange of India Limited, which was later on dismissed; that the complainant has lodged an FIR against the opposite parties and has also filed Writ Petition (Criminal) No. 821 of 2012; Rakesh Chandra Kaushik Vs. State of Uttarakhand and others before the Hon'ble High Court of Uttarakhand at Nainital; that the said writ petition was dismissed as infructuous by the Hon'ble High Court of Uttarakhand at Nainital per order dated 11.04.2013; that the complainant does not fall under the definition of consumer as provided under the Consumer Protection Act, 1986 and that the consumer complaint is not maintainable before the Consumer Fora and is liable to be dismissed.
8. The complainant filed replication (Paper Nos. 197 to 208) against the written statement filed by the opposite parties, thereby denying the averments made by the opposite parties in their written statement and reiterating the allegations made in the consumer complaint.
9. In evidence, the complainant has filed his affidavit along with certain annexures (Paper Nos. 211 to 281). The opposite parties have also filed their affidavit in evidence and have also annexed certain documents therewith (Paper Nos. 282 to 352).
10. We have heard the learned counsel for the parties and have also gone through the record. We have also perused the written arguments filed by the learned counsel for the complainant (Paper Nos. 389 to
419) as well as documents annexed therewith and also the written arguments filed by the learned counsel for the opposite parties (Paper Nos. 362 to 388) and the case law annexed therewith.
911. Learned counsel for the opposite parties submitted that the complainant has entered into share trading business with the opposite parties and since the matter involved in the case pertain to purchase and sale of shares and hence the complainant does not fall under the definition of "consumer" as provided under the Consumer Protection Act, 1986 and the dispute raised does not fall under the purview of "consumer dispute" and, as such, the present consumer complaint filed by the complainant is not maintainable before the Consumer Fora and is liable to be dismissed. Learned counsel also submitted that in the similar matter between the parties, the criminal proceedings are pending and for that reason also, the consumer complaint is not maintainable. Per contra, learned counsel for the complainant argued that the consumer complaint filed by the complainant is maintainable before the Consumer Fora and since the opposite parties have misused the funds of the complainant and have purchased and sell the shares of the complainant without his knowledge and consent and hence the complainant is entitled to the relief claimed and his consumer complaint is fit to be allowed.
12. Having considered the respective submissions advanced by the learned counsel for the parties, we think that the first and foremost issue to be decided in this case is whether the complainant falls under the definition of "consumer" as provided under Section 2(1)(d) of the Consumer Protection Act, 1986 or not and whether the consumer complaint filed by the complainant is maintainable before the Consumer Fora or not. Section 2(1)(d) of the Consumer Protection Act, 1986 reads as under:
"(d) "consumer" means any person who -
(i) buys any goods for a consideration which has been paid or promised or 10 partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose."
13. From the above-quoted definition of "consumer", it is abundantly clear that the person who avails the services for any commercial purpose or the person who is engaged in any commercial activity, does not fall under the definition of "consumer" and can not be said to be consumer as per the provisions of Consumer Protection Act, 1986. The "commercial purpose" means generating profit and engaged in the activity not for the purpose of earning the livelihood.
14. In the present case, in para 1 of the consumer complaint, the complainant has himself stated that he is a retailer of computer parts and is running the business under the name and style of M/s 11 Hindustan Computers and Peripherals. Thus, the said business is being done by the complainant for the purpose of earning his livelihood and the complainant is earning his livelihood by the income generated from the said business. Hence, the complainant has engaged himself in share trading business not for the purpose of earning his livelihood. In para 1 of the consumer complaint, the complainant has also stated that for past few years, he is engaged in share activities and is investing his savings in shares. Investment means generating profit from the amount so invested. The complainant has nowhere averred in his consumer complaint that he has invested his money in shares not for earning profit. The same is also not the source of livelihood for the complainant, because the complainant is earning his livelihood from the business run by him under the name and style of M/s Hindustan Computers and Peripherals. The fact that the complainant has himself stated that for past few years, he has been investing his money in shares, goes to show that the complainant has been investing his money in shares for earning profit and hence it can be safely be said that the complainant is engaged in commercial activity and hence the complainant does not fall under the definition of "consumer" as provided under the provisions of Consumer Protection Act, 1986 and, as such, his consumer complaint was not maintainable before the Consumer Fora.
The averments made by the complainant in the consumer complaint also depict that he has been trading in the business of shares and the complainant has raised the dispute with regard to sale and purchase of shares by the opposite parties.
15. In addition to above, in para 7 of the consumer complaint, the complainant has stated that he asked the opposite party Nos. 1 and 2 that he is a small businessman and wants to invest his earning in shares and that he does not have much greediness. The exact words 12 are, "------------- bl ij çkFkhZ us lqds'k tSu o mlds iq= fl)kFkZ tSu ls dgk fd çkFkhZ rks ,d NksVk O;kikjh gS rFkk çkFkhZ dks cgqr ykyp Hkh ugha gSA". Thus, as per the own averments of the complainant, he had greediness to earn money from share trading business. The complainant has made the allegations against the opposite parties that the opposite parties gave him assurances and allured him to invest money in share trading business for earning gain / profit. We are not concerned with the so-called assurances, if any, given by the opposite parties to the complainant, but the fact remains that the complainant has voluntarily invested his amount in share trading business with a motive to earn profit from the said business and any activity engaged for earning profit, which is not meant for self-employment, i.e., for the purpose of earning the livelihood, can very well be called as commercial activity and the said purpose can be termed as commercial purpose, not falling within the ambit of the Consumer Protection Act, 1986 and the said person can not be termed as "consumer".
16. This apart, the dispute raised by the complainant in the present case pertains to purchase and sales of shares and in the consumer complaint, the complainant has nowhere pleaded that he is dealing with share business as self-employment for earning livelihood. It is a settled law that the transactions regarding sale and purchase of shares are commercial transactions and the person engaged in the said transactions can not be termed as consumer as per the definition of the word provided under Section 2(1)(d) of the Consumer Protection Act, 1986.
17. The complainant also can not be said to be unaware of the risk involved in the share market, as he has himself admitted in his consumer complaint that for the past few years, he has been dealing in 13 shares, which further proves the fact that the complainant is indulged in share trading business for the purpose of earning profit and, as stated above, the same is not the source of earning his livelihood by the complainant and hence he is not covered under the definition of "consumer" as provided under Section 2(1)(d) of the Consumer Protection Act, 1986. The averments made by the complainant show that the complainant has stated that different kinds of allurement were given to him by the opposite parties and he acceded to the said allurements. If it is treated that the opposite parties have given the alleged allurements to the complainant, then the complainant can not fall under the definition of "consumer" as defined under Section 2(1)(d) of the Consumer Protection Act, 1986, for the reason that as per the own case of the complainant, he acceded / agreed to the said allurements made by the opposite parties, i.e., to say that he agreed to invest his money in share trading business with an intent to earn huge profit / gain not for the purpose of earning his livelihood, which makes the whole transaction a "commercial purpose".
18. Learned counsel for the opposite parties cited a decision of the Hon'ble National Commission in the case of V.K. Agarwal (Dr.) Vs. Infosys Technologies Ltd. and others; I (2013) CPJ 373 (NC), wherein the Hon'ble National Commission has held that the sale and purchase of shares are commercial transactions and, therefore, the complainant is not a consumer. Learned counsel for the opposite parties also cited a decision of Karnataka State Consumer Disputes Redressal Commission, Bangalore in the matter of Pahlaj Manamal Nichani Vs. Mis Process and Customer Complaints and another; II (2013) CPJ 105, wherein it was held that the person who purchases shares in bulk, can not be considered as "consumer" and the dispute arose in that regard can not be considered as "consumer dispute". In the present case also, the complainant has made purchases of large 14 number of shares to the tune of Rs. 37,51,951.06/-, as is mentioned in para 14 of the consumer complaint and the said sum can not be said to be a small sum and it can safely be said that the complainant has made purchase of shares in bulk. The shares purchased by the complainant in the present case are for commercial purpose. Learned counsel further cited another decision of the Hon'ble National Commission in the case of Vijay Kumar Vs. Indusind Bank; II (2012) CPJ 181 (NC). In the said case, the complainant was engaged in share trading business and the complainant had alleged the sale of shares at lowest price on intra-day operations. It was held by the Hon'ble National Commission that regular trading in purchase and sale of shares is a commercial transaction and only motive of the same is to earn profit. Learned counsel also pressed into service a decision of West Bengal State Consumer Disputes Redressal Commission, Kolkata in the case of Ramendra Nath Basu Vs. Sanjeev Kapoor and another; I (2009) CPJ 316. In the said case, it was alleged that the agreed amount was not paid by the opposite party. It was held that the transaction between the parties does not come under the purview of Consumer Protection Act, 1986 and that the investors invest money in share trading with expectancy of earning profit, which also undertake huge risk of loss and for which, no one could be held responsible. Learned counsel also cited one more decision of the Hon'ble National Commission in the case of Som Nath Jain Vs. R.C. Goenka and another; I (1994) CPJ 27 (NC). In the said case, it was alleged that the opposite party had undertaken to purchase shares to the tune of Rs. 7.00 lacs and to submit accounts showing the purchase etc., but the opposite party did not submit genuine documents regarding purchase of shares etc. It was held that the complaint is not maintainable.
1519. Further, the Hon'ble National Commission in its decision dated 16.04.2014 rendered in Revision Petition No. 3367 of 2013; Sudhangsu Bhusan Dutta Vs. The Joint Managing Director, Mansukh Securities & Finance Ltd. and others, has held that since the petitioner is an investor in shares and hence he does not fall under the definition of "consumer". In the said decision, the Hon'ble National Commission has placed reliance on its earlier decision dated 21.08.2012 given in First Appeal No. 362 of 2011; Ganapathi Parmeshwar Kashi and another Vs. Bank of India and another. The said case pertained to DMAT Account and the appeal was dismissed by the Hon'ble National Commission. Aggrieved by the said order, a Special Leave to Appeal (Civil) No. 5401 of 2013; Ganapathi Parmeshwar Kashi and another Vs. Bank of India and another, was filed, wherein the Hon'ble Apex Court has held as under:
"(ii) The concurrent finding recorded by the State Consumer Disputes Redressal Commission, Maharashtra and the National Consumer Disputes Redressal Commission that the petitioners cannot be treated as consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986, is based on analysis of the pleadings filed by the parties. The DMAT account was opened by the petitioners purely for commercial transactions. Therefore, they were rightly not treated as consumer so as to entitle them to claim compensation by filing complaint under the 1986 Act."
20. In a recent decision again, the Hon'ble National Commission in the case of R.R. Equity Brokers Pvt. Ltd. and another Vs. Dinesh Kumar Jaiswal; III (2014) CPJ 396 (NC), has held that the respondent is trading regularly in share business which is commercial activity and under these circumstances, he would not fall under the 16 definition of "consumer" as per the Act. Moreover, regular trading in the sale and purchase of shares is a purely commercial activity and the only motive is to earn profits. Therefore, this activity being purely commercial one, is not covered under the provisions of the Act. In the instant case also, the complainant has nowhere pleaded that he is doing the share trading business for self-employment nor it has been pleaded that the services provided by the opposite parties were being availed by the complainant exclusively for the purpose of earning his livelihood by means of self-employment. It is well settled that the dispute between the parties relating to commercial purposes are excluded under the Act.
21. Further, the Hon'ble National Commission in the case of Steel City Securities Ltd. Vs. G.P. Ramesh and another; I (2014) CPJ 576 (NC), has held that the sale purchase of shares is a commercial purpose and trading in shares is purely commercial activity and only motive is to earn profit and the complainant is not a consumer.
22. In view of the above factual position and the law cited above, it can safely be held that the complainant in the present case does not fall under the definition of "consumer" as provided under Section 2(1)(d) of the Consumer Protection Act, 1986, as he has invested money in shares for earning profit, i.e., for commercial purpose and hence the consumer complaint filed by him is not maintainable before the Consumer Fora and is liable to be dismissed as such.
23. The complaint lodged by the complainant with National Stock Exchange of India Limited against United Share Brokers Limited, was closed by them, as is evident from the letter dated 30.08.2013 issued by National Stock Exchange of India Limited (Paper Nos. 459 to
460). In the said letter, it has been mentioned that the complaint 17 lodged by the complainant was placed before Investor Grievance Resolution Panel (IGRP) and in the meeting held on 29.08.2013, the matter could not be resolved and hence his complaint was treated as closed.
24. There is also no dispute with regard to the fact that the criminal proceedings are pending between the parties and the matter has gone upto the Hon'ble High Court of Uttarakhand at Nainital, whereby the complainant has filed a Criminal Writ Petition, which was disposed of by the Hon'ble High Court of Uttarakhand at Nainital vide order dated 11.04.2013, thereby stating that the final report in the case has been submitted and the Criminal Writ Petition filed by the complainant was dismissed as infructuous. In the said Writ Petition, the complainant has averred that he has been cheated by the opposite parties and his amount has been swindled by the opposite parties and the opposite parties have cheated the complainant and have committed cheating of lacs of rupees upon the complainant and an FIR has been lodged in the case bearing Case Crime No. 146 of 2012. In the said Writ Petition, the complainant has sought the relief for transferring the investigation of Case Crime No. 146 of 2012 to an independent agency such as the Central Bureau of Investigation (CBI) or CBCID and to direct the State Govt. to take appropriate and prompt action against the opposite parties. There is nothing on record that the said criminal proceedings have been decided and if so, what was the outcome of the said criminal proceedings. Thus, in the similar matter in issue regarding purchase and sale of shares of the complainant by the opposite parties, the criminal proceedings are also pending between the parties and the same have not yet been decided by any court and it is yet to be decided whether the complainant has been deceived by the opposite parties or not and whether the opposite parties have played any fraud upon the complainant or not and 18 whether the opposite parties have cheated the complainant in any manner or not. In para 16 of the written arguments submitted by the learned counsel for the complainant, it has been stated that at present, the inquiry is pending with the STF. Hence, it is yet to be decided whether the opposite parties have played any fraud upon the complainant or the opposite party have, in any way, cheated the complainant.
25. However, as the case may be, since the complainant does not fall under the definition of "consumer" as provided under Section 2(1)(d) of the Consumer Protection Act, 1986 and hence the present consumer complaint filed by him is not maintainable before the Consumer Fora and is liable to be dismissed.
26. For the reasons aforesaid, the consumer complaint is dismissed. No order as to costs.
(SMT. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL) K