MR. SHYAMAL KUMAR GHOSH, PRESIDING MEMBER 

1. The instant appeal against the execution under section 27A of the C.P. Act 1986 has been filed by the appellant/Judgment debtor challenging the order impugned dated 15/11/2019 passed by the Ld. Trial Commission, Unit –lll (South), Kolkata in connection with Execution Case being no – EA/76/2017 wherein the Ld Trial Commission concerned has been pleased to pass an order of conviction of the appellant/Jdr for the period of three years under section 27 of the Consumer Protection Act, 1986 and also pleased to make a direction upon the appellant / Jdr to pay fine a sum of Rs.10,000/- only in default further simple imprisonment for the period of six months.
2. Complainant no. 1/Sri Ajit Kumar Samanta being a retired school teacher in the scope of secured retired life, along with his family members, Complainant Nos. 2 to 4 deposited a total sum of Rs. 21,87,000/- in their joint and individual names which the OPs agreed to pay back along with an interest. Out of these deposits seven schemes have already been matured. The maturity amount came to Rs. 6,18,000/-. OPs gave nine post -dated cheques in the names of Complainants amounting to Rs. 3,20,006/- against the matured amount. Unfortunately, said cheques were returned with endorsement of insufficient of funds. OPs did a foul play. Having no other alternative, Complainants have filed the instant consumer case before the concerned DCDRC for getting proper relief/reliefs as prayed for. The final order has been passed in favour of the Complainants. The OPs are jointly and severally liable.
3. Thereafter the respondent/complainant has filed an execution case being no. 76/2017 (arising out of CC case no. 440/2016) before the concerned Trial Commission for implementation of the final order.
4. Ultimately the Ld. Trial Commission has been pleased to pass the order impugned dated 15/11/2019 wherein the ld. Trial Commission has pronounced the order of conviction of appellant/Jdr for the period of three years under section 27 of the Consumer Protection Act, 1986 with a further direction to pay a fine of Rs.10,000/- in default further simple imprisonment for the period of six months.
5. The ld advocate appearing for the appellant/Jdr has argued that ld Trial Commission should have considered the realisation of the money by way attachment of property under section 25 of the Consumer Protection Act, 1986 at first thereafter in default the punishment by way of imprisonment under section 27 of the said Act, 1986 should have been applied for implementation of the final order. But the ld Trial Commission below, without taking recourse of section 25 of the said Act, has applied straight way section 27 of the said Act which is highly illegal, misconceived, erroneous and contrary to law. Ld. Advocate has also argued that before passing the order of conviction of the Judgment debtor/appellant in the execution application, no separate proceedings under the Code of Criminal Procedure has been maintained and followed by the ld. Trial Commission.
6. At the time of final hearing the ld advocate appearing for the appellant/Jdr has submitted a remarkable citation viz KAMALESH AGGARWAL VS NARAIN SINGH DABBAS AND ANOTHER (2015) ll SCC 661 along with another decision viz RAMESH KOHALI VS SHIVANAND SHANGAG ( APPEAL EXECUTION NO – 105 OF 2019, arising out of the order dated 14/2014 of the State Commission, Maharashtra) and the ld counsel has further argued that before conviction, no cognizance has been taken by the ld Trial Commission, no procedure under section 262 read with section 251 of the Code of Criminal Procedure has been followed and maintained by the ld Commission below. Hence the order of conviction of the Jdr/appellant passed by the ld Trial Commission is totally erroneous, misconceived and violation of natural justice. Accordingly the ld advocate has prayed for setting aside the order impugned dated 15/11/2019 passed in Execution Case being no – EA/76/2017.         
7. Ld advocate appearing for the complainant/respondent, by submitting confonet case history, has argued that Jdr/Swapan Ghosh has been produced from the correctional home on 17/10/2019 before the ld Trial commission. That day has been fixed for making payment. No payment has been made by the Jdr and has prayed for time for making payment in default section 27 might be passed against him. For the ends of justice, the ld Trial Commission has been pleased to fix 15/11/2019 for making payment of outstanding dues by the Jdr. But on 15/11/2019 no payment has been made by the Jdr towards compliance of the judgment. Considering the situation Jdr was liable to be sentenced as per section 27 of the Act, 1986.
8. Under the above proposition ld advocate appearing for the complainant/respondent has argued that though there is no quoting of the particular section/sections in the order impugned under the code of criminal procedure yet the whole procedure has been fully followed and maintained by the ld trial commission. Accordingly, there is no such wrong, error, mistake or any illegality in passing the order impugned dated 15/11/2019 and as such the instant appeal filed by the appellant should be dismissed with exemplary costs.
9. We have heard the ld advocates for both sides at length and in full.
10. We have considered the submissions of the both sides.
11. We have meticulously perused all materials available on the record.
12. In pursuant to the above discussions it should be decided by this commission that whether the order of conviction and sentence of the Jdr has been passed and pronounced by observing all procedures contained in the Code of Criminal Procedure properly in accordance with law or not.
13. Without any hesitation we simply go through the citations of remarkable judgment viz. Kamalesh aggarwal vs Narain Singh Debbas & Anr reported in (2015) II SCC 661 and Ramesh G. Kohali (presentaly lodge in custody in Amrawati Jail) vs Shivanand Shanbag (Appeal Execution no – 105 of 2019) for resolving the matter.
14. In Kamalesh Aggarwal (supra)  Hon’ble Apex court has been pleased to hold that we deem it proper to exercise our power under Article 142 of the Constitution of India for the reason that the State commission has erred in not remanding the case to the District Forum, after it has found fault with the order of the District Forum in convicting and sentencing the officers of Navehetna Sahkari Awas Samiti Ltd. who are the respondents herein for not following the procedure as provided under the Criminal Procedure Code and for that reason we deem it just and proper to remand the case to the District Forum with a direction to the District Forum to follow the procedure under section 262 read with Chapter XX, Section 251 of the Code of Criminal Procedure to initiate penal action against the respondents under section 27 of the Act for non-compliance of the statutory provisions.
15. In Ramesh G. Kohali (supra) Hon’ble NCDRC, by referring the citation of Kamalesh Aggarwal (supra), has been pleased to hold that admittedly, the procedure as approved by the larger Bench of this Commission has not been followed in this matter. Admittedly, no notice under section 251 of the Code of Criminal Procudure was given to the appellant. No opportunity to cross-examine the complainant was given to him. Admittedly, no opportunity to lead defence was given to him. Admittedly, his statement under section 313 read with section 281 of the Code of Criminal Procedure was not recorded. The impugned order, therefore, cannot be sustained and is set-aside. The matter is remitted back to the State Commission to decide the same afresh, following the above referred procedure approved by the larger Bench of this Commission.
16. Upon careful perusal of the order impugned dated 15/11/2019 passed in Execution Case being no – EA/76/2017 it appears to us that no procedure under section 262 read with Chapter XX, Section 251 of the Code of Criminal Procedure, Section 313 of the Crpc etc have been followed and maintained by the ld Trial commission to initiate penal action against the Judgment debtor under section 27 of the C.P. Act 1986 for non-compliance of the final order. Be it mentioned here that 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 the offences under this Act, and on such conferment of the 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. Section 27(3) of the C. P. Act 1986 confers that 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.
17.  Keeping in view of the above observations in details there is no hesitation to hold that the order of conviction and sentence of the appellant/Judgment debtor has been passed and pronounced by the ld Trial commission without observing aforesaid provisions of the Code of Criminal Procedure and accordingly having regard to the citations of the Hon’ble Apex court and Hon’ble NCDRC we allow the instant appeal in part on contest without any order as to costs.
18. In pursuant to the above views the order impugned dated 15/11/2019 cannot be sustained in the eye of law as the said order impugned suffers from so many irregularities, and stands set-aside.
19. The matter is remitted back to the Ld Trial Commission concerned to decide the same afresh, following the above referred procedures.
20. All issues will be kept open when the aforesaid matter would be taken into consideration.
21. Both parties are directed to appear before the Ld. Trial commission on 16.10.2023 for receiving further order/orders from Concerned DCDRC.
22. Accordingly the instant appeal stands disposed of.
23. Note in the register.
24. Let a copy of this order be transmitted to the Ld Trial Commission for compliance and for necessary action.