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Sri Ajay Kumar Mohta v/s M/s.S.V.L. Real Estates & Constructions Pvt. Ltd., Rep. by its Managing Director Sri K.S.N. Chowdary Visakhapatnam.

    FA.No.1532 of 2007 AGAINST P.P.No.3 of 2007 IN C.D.No.78 of 2001 DISTRICT FORUM, VIZIANAGARAM

    Decided On, 03 November 2009

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, SMT.M. SHREESHA
    By, MEMBER & SRI K. SATYANAND
    By, MEMBER

    Counsel for the Appellant: M/s.Anoop Kumar, Counsel for the Respondent: Respondent served through paper publication



Judgment Text

Oral Order (Sri K. Satyanand,Hon?ble Member)


This is an appeal preferred by the complainant who initiated proceedings for the so called conviction of the opposite party obviously on the ground that he had violated the order of the District Forum. Basically this is a criminal proceedings calculated to achieve the object of bringing the erring opposite party to book inspite of a specific order directing him to comply with the order of the District Forum. But as could be seen from the record, the very petition though filed under Section 27 not only deviating from the scope of Sec.27 as it sought to get a relief especially of taking out a warrant against opposite party as a last resort, but also is more in the nature of an Execution Petition in as much as the prayer contemplated a mandate to the opposite party to register the sale deed failing which to execute a warrant against the opposite party. Thus the prayer is a mixed baggage. This lacunae ought to have been pointed out by the District Forum itself during the course of checking of the petition. There is a lapse at that stage itself. The next steps that the District Forum resorted to also appear to be in violation of Section 27 which clearly provides for following the law of criminal proceedings against the erring opposite party for not obeying the order of the District Forum. The order in C.D. was passed in September, 2003. By that time new Section 27 of Consumer Protection Act, 1986 has come into force. Section 27 reads as follows:


27. Penalties: (1).Where a trader or a person against whom a complaint is made 2[or the complainant] fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person 2[or complainant] shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both:


(2) Not withstanding 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 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 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.


It is very clear from the provisions of Section 27 that when a petition is filed before it complaining that opposite party against whom the District Forum passed an order in the C.D. did not comply with the order, it has to commence the proceedings resorting to the relevant provisions of the Cr.P.C., dealing with the summary trial, which in turn refers to procedure prescribed for private summons cases. In respect of consumer cases too it should commence with the recording of the sworn statement of the complainant like in the case of complaint in a criminal court. Then it should be followed by the examination of the opposite party asking him if he had any explanation as to why he did not comply with the order of the District Forum. That should be done in the shape of examination of the accused. After recording his statement or version, then the District Forum has to proceed with the recording of the evidence though narrow and limited in scope by virtue f the very nature of the proceedings and then it should also give ample opportunity to the opposite party to cross examine the witness or evidence otherwise adduced by the complainant. It should be followed by an examination of the respondent under Section 313 Cr.P.C. The next step would be to invite the opposite party, who is in the position of accused to tender his own evidence in his defense, if he so desires. Then only the District Forum has to form an opinion as to the guilt or otherwise of the opposite party. Instead of doing all that, the proceedings appeared to have been handled as if it were a civil proceedings. This is totally wrong and untenable under the provisions of Section 27 more particularly sub section 2 and 3 of the said section. This is therefore a fit case to set aside the order of the District Forum and remand the matter to the District Forum to proceed with the adjudication of the matter afresh keeping in view the observations made supra. The complainant for his part shall also repair the frame of his own petition to bring it in conformity with the provisions of Section 27 without drifting away from the scope and ambit of Section 27. He should also note that the proceedings one under the amended Section 25 and the other under Section 27 are two different streams and they cannot be mixed up. This is also an aspect that ought

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to have been examined in the checking. Likewise the District Forum shall also examine the question of limitation, if that is relevant, only under the provisions of Cr.P.C. but not the provisions of C.P. Act or any other law for the simple reason that, the moment, the proceedings are initiated, U/s.27 of C.P.Act they will have to be dealt with under Cr.P.C. but not C.P.C. Accordingly the appeal is allowed and the matter is remanded to the District Forum and the District Forum shall dispose of the matter within two months after the receipt of this order.
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