KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No.120/2014

JUDGEMENT DATED: 16.01.2024

PRESENT:

COMPLAINANT:

(by Adv. Narayan R.)

Vs.

OPPOSITE PARTIES:

(by Advs.  Rinu Aswan & Ullas Sudhakaran)

(by Adv.  M.A. Abdul Hakhim  )

JUDGEMENT

SRI. AJITH KUMAR  D.  :  JUDICIAL MEMBER

          This is a complaint filed by one Manoj R.S. by resorting to Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the three opposite parties. The averments contained in the complaint in short are as follows:

          2.       The complainant was a dealer in live chicken.  He used to bring chicken from Tamil Nadu for the purpose of sale within the State of Kerala.  State of Kerala had enforced tax for the transportation of live chicken from Tamil Nadu through  check Posts and directed the parties to pay tax at the check post in advance.  The complainant had been remitting the tax at the check post as per the direction of the Commercial Tax Department.  The 3^rd opposite party is the authorised officer of Government of Kerala to collect advance tax from the dealers.  From 2008 onwards the complainant has been regularly paying advance tax at the check post.  Later it was ordered to pay tax through demand drafts in favour of the Commercial Tax Officer in each check Post.  Normally, transportation of live chicken commences during midnight.  When the vehicle reaches the check post, they have to wait atleast twelve hours for taking demand drafts from the Bank which caused much difficulty to the dealer as the demand drafts could be obtained only during banking hours.  Considering these difficulties, the 2^nd opposite party had opened a service centre adjacent to the check post claiming that they are the agents of 1^st opposite party for providing demand drafts.  The 2^nd opposite party used to provide demand drafts issued by the 1^st opposite party throughout the night and the complainant was receiving the demand drafts by depositing amounts against each demand draft and entrusted those demand drafts as advance tax.  The complainant had entrusted demand draft for Rs.69,10,000/-(Rupees Sixty Nine Lakhs Ten Thousand only) to the 3^rd opposite party for the period from 23.07.2009 to 02.10.2009.  Those demand drafts were dishonoured and accordingly criminal cases were initiated by the Government and recovery steps by the District Collector Wayanad with an allegation that the complainant had cheated the Government by causing production of fake demand drafts.  On enquiry the complainant came to know that the 2^nd opposite party had issued pay order cheques to the complainant instead of demand drafts after receiving the amount.  Initially, pay orders were negotiated and the credits were made available to the account of the Commercial Tax Department.  The complainant being a bonafide dealer had paid the entire amount to the account of the 2^nd opposite party as per the direction of the Reserve Bank of India prior to the issuance of the pay orders.  The 1^st opposite party should make sure that the 2^nd opposite party was having sufficient funds in his credit.  It is also learned that the 2^nd opposite party had started his office near to the Commercial Tax check post with the consent and concurrence of the 3^rd opposite party.  On account of the unauthorised act of the opposite parties, the complainant was put to heavy loss.  The act of the opposite parties amounts to deficiency in service and unfair trade practice.

3.       The 1^st and 2^nd opposite parties had issued pay orders after obtaining its value and commission from the complainant making him to believe that the documents are demand drafts which could be accepted by the Sales Tax Department.  If the 3^rd opposite party was acting in a fair manner in accordance with the rules and regulations, the complainant ought not have suffered any loss.  The opposite parties have deliberately misused their office and cheated the complainant.  The Commercial Tax Department had initiated recovery proceedings against the complainant claiming realisation of an amount of Rupees five crores including penalty and penal interest.  The District Collector Wayanad had issued notice under Section 65 of Revenue Recovery Act for the recovery of Rs.5,35,80,066/-(Rupees Five Crore Thirty Five Lakhs Eighty Thousand and Sixty Six only).  The complainant would seek for a direction to the opposite parties to pay Rs.69,10,000/-(Rupees Sixty Nine Lakhs Ten Thousand only) along with interest and compensation of Rs.5,00,000/-(Rupees Five Lakhs).

          4.       On admitting the complaint, notices were issued.  The 1^st opposite party had filed the version with the following contentions:

          The complaint is not maintainable either in law or on facts.  The 1^st opposite party is unnecessarily brought before the Commission and hence the complaint is bad for misjoinder of parties.  The complainant had never availed any service from the 1^st opposite party.  There was no trade relationship with the 1^st opposite party and hence no question of deficiency in service or unfair trade practice arises.  Complainant is not a consumer as defined under the Consumer Protection Act.  The 1^st opposite party is unaware of the facts pleaded in the complaint.  The 1^st opposite party was not aware of the service centre opened by the 2^nd opposite party.  The 2^nd opposite party is not the authorised agent of the 1^st opposite party.  The 1^st opposite party is not aware of any amounts claimed to have been deposited by the complainant with the 2^nd opposite party.  The Government had initiated criminal prosecutions alleging offences under sections 420, 465, 468, 471. 120(B) read with 34 of IPC against the complainant and others for cheating the State by transporting live chicken without paying tax, misleading and misrepresenting the Revenue officials after producing the cheques by claiming it as demand drafts.  The 3^rd opposite party denied the entire pleadings in the complaint.  They would seek for the dismissal of the complaint.

          5.       No version has been filed by the 2^nd and 3^rd opposite parties.  Complainant was examined as PW1.  Four documents were marked as Exhibits A1 to A4.  But the admissibility of Exhibits A1 and A2 were objected by the opposite party as those documents are photocopies.  No steps are seen taken to cause production of the original documents.

          6.       The 1^st opposite party had filed an affidavit in lieu of chief examination with an application for deputation of an Advocate Commissioner. An Advocate Commissioner was appointed to record the evidence.  But no batta has been paid to the Advocate Commissioner despite sufficient chances being given. No steps were also taken to complete the recording of evidence.  The evidence of the first opposite party was closed being a long pending matter related to the year 2014 and the matter was taken up for hearing.

          7.       One T.P. Varghesekutty was arrayed as the representative of the 2^nd opposite party who had filed a petition to delete him from the capacity as the representative of the second opposite party. The above petition was dismissed as per the order dated 31.05.2018.  The 2^nd opposite party had filed writ petition before the Hon’ble High Court as W.P.(C)No.35474/2018.  The above writ petition was dismissed on 22.10.2019.  Being aggrieved by the order of dismissal a writ appeal was filed before the Hon’ble High Court as W.A.No.2297/19.  The writ appeal was also dismissed by the Hon’ble High Court as per the judgment dated 13.11.2019.  During the pendency of the writ petition, the proceedings in this case was stayed.  Subsequently, the complainant reported that a stay was ordered by the National Commission and the matter was not pursued further.  Though such a submission was made, no stay order was produced.  So the counsel for the complainant was directed to ascertain as to whether any stay has been ordered by the National Commission.  The learned counsel for the complainant reported that no stay was ordered by the National Commission and accordingly the matter was taken up for disposal after hearing both sides. 

          8.       Heard both sides.  Perused the records.

9.       Now the following points are raised for determination.

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties as alleged?
2. Whether the complainant is entitled to get any relief?

Points Nos. 1&2

10.     These points are considered together.  The complainant had caused production of photocopies of the negotiable instruments purported to be issued by the 1^st opposite party and marked as Exhibits A1 and A2.   The authenticity of the documents is disputed and no steps are seen taken for causing production of the original documents and hence those documents cannot be taken into account for adjudication.  Exhibit A3 is the warrant issued by the District Collector, Wayanad dated 21.01.2014 by resorting to Section 65 of the Revenue Recovery Act directing the complainant to appear at the Collectorate Wayanad since arrears amounting to Rs.5,35,80,066/-(Rupees Five Crores Thirty Five Lakhs Eighty Thousand Sixty Six only) is due from the complainant.  Exhibit A4 is the proceedings of the District Collector, Wayand for the execution of the Sales Tax arrears of revenue for Rs.2,83,066/-(Rupees Two Lakhs Eighty Three Thousand Sixty Six only) from the complainant. 

          11.     The documents produced by the complainant before this Commission and the averments contained in the complaint would show that the complainant is a chronic defaulter of tax against whom recovery proceedings has been initiated by the District Collector Wayanad for realisation of the arrears.  The case of the complainant is that he had entrusted funds with the 2^nd opposite party and procured demand drafts and entrusted the same with the 3^rd opposite party, Inspector of Commercial Tax check post, Naduppuni. In evidence the complainant would state that he had directly paid the amount to the 2^nd opposite party and credited the amount to the account of the 2^nd opposite party.  But no acceptable evidence has been produced by the complainant that any amount was remitted to the opposite parties for obtaining demand drafts.  According to the complainant there is deficiency in service on the part of the opposite parties.  But, on going through the evidence let in by the complainant, it could be seen that the complainant was not able to furnish the details of the alleged purchase of the live chicken from the agents at Tamil Nadu.  According to him, the agents in Tamil Nadu used to send live chicken to our State.  But the complainant was not in a position to state the exact details of the loads transported to our State.  If money was transferred to the account of the 2^nd opposite party, the complainant could have caused production of the necessary documents to prove the alleged payment.  The evidence let in by the complainant would reveal that he had no direct transaction with the 1^st opposite party.  The facts elicited through cross examination of the complainant would show that the pay orders produced by the complainant before the Commercial Tax Officer were returned for want of sufficient funds.  It is also elicited in the cross examination that there was a stipulation by the Taxes Department that advance tax should be paid by way of demand draft procured from the State Bank of Travancore.  The complainant was fully aware of the aforesaid stipulation.  But disregarding the above stipulation he had caused production of the pay order cheques issued by the 1^st opposite party.  There is no evidence brought on record that any commission has been paid by the complainant for obtaining the demand draft from the 1^st opposite party.

          12.     When deficiency in service or unfair trade practice is alleged, the initial burden is upon the complainant to prove the same with solid evidence.  It is imperative on the part of the complainant to cause production of the documentary evidence and establish that he had actually paid the requisite amount with the Bank in view of the stipulation for payment of advance tax or availed any service from the opposite parties.  The oral evidence let in by the complainant would show that he is having records regarding the payment allegedly made.  But no such documents are forthcoming.  There is total absence of evidence on the side of the complainant regarding the payment of money for getting pay order or demand drafts.  On a cumulative consideration of the entire evidence available on record we find sufficient materials to probabilise the stand taken by the first opposite party that this case is a collusive one with a view to prolong the recovery steps initiated by the government against the complainant. Admittedly the complainant is a person facing criminal prosecution for causing production of forged negotiable instruments before the statutory authorities by cheating the government machinery for making undue enrichment to him. Hence it is the primary duty of the complainant to adduce evidence regarding the actual payment made by him to the second opposite party.   There is also no materials on record to prove the alleged capacity of the second opposite party as the agent of the first opposite party. Thus there is no evidence adduced by the complainant to prove deficiency in service or unfair trade practice alleged against the opposite parties.

13.     On a careful consideration of the entire evidence on record, there is sufficient reason to suspect the genuineness of the facts alleged in the complaint.  Filing of the complaint seems to be initiated for creating some evidence that proceedings are pending before the authorities so that the recovery proceedings initiated by the Revenue Department against the complainant could be delayed.  There is no bonafides in the facts as alleged in the complaint.  No cause of action for a consumer dispute would arise from the evidence on record.  So the complaint is liable to be dismissed.

          In the result, the complaint is dismissed.  Parties shall suffer their respective costs.

Dictated to my Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 13^th day of January, 2024.

SL

 C.C.No.120/2014

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

5. COURT EXHIBITS

JUDICIAL MEMBER