Haryana

StateCommission

A/112/2015

ROSHAN LAL - Complainant(s)

Versus

HARBANS LAL AND OTHERS - Opp.Party(s)

HEMANT BASSI

05 Feb 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.112 of 2015

Date of the Institution: 02.02.2015

Date of Decision: 05.02.2016

 

Roshan Lal S/o Chottan Singh, R/o House No.13, B & R Colony Sector-5, Hisar.

…..Appellant

Versus

 

1.      Harbans Lal S/o Shri Tikaya Ram, r/o H.No.55-B, Yadav Colony, Kaimari Road, Hisar.

2.      The Food Corporation of India Staff Coop Urban (S.E.). Thrift & Credit Society Ltd., Hisar through its Administrator (1. Director, Coop. Societies Hisar, 2. Deputy Director Coop. Societies Hisar-5, Deputy Director Coop. Societies Hisar-4 Appointed vide order dated 01.09.2014.

3.      Assistant Registrar Cooperative Societies, Mini Secretariat Building, Hisar.

                                                                             .….Respondents

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.Hemant Bassi, Advocate counsel for the appellant.

                   Mr.Harbans Lal respondent No.1 in person.

                   None for the respondent Nos.2 and 3.

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

This appeal has been preferred against the order dated 05.01.2015 vide which appellant was sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.5000/- under section 27 of the Consumer Protection Act of 1986 (In short “Act”) for non-compliance of the order dated 12.10.2012 vide which appellant-O.P.No.1 was directed to make payment as directed by O.P.No.2 vide letter dated 26.05.2010.  After order dated 12.10.2012 complainant filed an application under section 25 read with section 27 of the Act for the compliance of that order.  Notice of the same was issued to the O.P.1 and counsel appeared on his behalf on 04.02.2013. When the order was not complied with non-bailable warrants of appellant were issued and he was produced before the District forum on 05.01.2015.  After serving show cause notice upon him impugned order dated 05.01.2015 was passed. 

2.      Feeling aggrieved therefrom, O.P. has preferred this appeal.

3.      Arguments heard. File perused.

4.      Learned counsel for the appellant vehemently argued that the District Forum sentenced O.P.No.1 exercising the powers of Magistrate.  Thereafter, Section 389 of Code or Criminal Procedure, 1973 (In short “Cr.P.C.) came into force. As per this section if a person is sentenced for a period less than three years then the sentence is to be suspended, but, it was not done in the present case.  Even otherwise, proper procedure was not followed before passing impugned order.  No show cause notice was issued to him and under threat his statement was recorded.  Statement recorded in custody cannot be used against an accused. From the perusal of letter dated 01.09.2014, attached as Annexure A-3 with the appeal, Managing Committee of O.P.No.1 is not in existence and officials of cooperative societies are directed to look after the same.  Thereafter they were liable to make payment and in case of non-compliance of order dated 12.10.2012 they should have been penalized.  Learned District Forum failed to take into consideration all these aspects and wrongly sentenced the accused.

5.      These arguments are of no avail.  If we go through the file of District Forum it will be clear that proper procedure was followed before passing impugned order.  When application under section 25 and 27 of the Act was filed, notice of the same was issued to the appellant for 04.02.2013. Counsel appeared on his behalf and the matter was adjourned to 05.03.2013 for compliance of order dated 12.10.2012. When order was not complied with, matter was adjourned to 02.04.2013 for personal appearance of O.P.No.1.  Nobody appeared on his behalf on that date and his non-bailable warrants were issued time and again till 05.01.2015. On that date he was produced before District Forum and show cause notice was served upon him to explain why he should not be sentenced as provided under section 27 of the Act.

6.      For ready reference the said order is reproduced as under:-

“JD-Roshan Lal Khanagwal has been produced before this forum in compliance of non-bailable warrants against him.  Let show cause notice be served upon him as to why he be not sent to jail and as to why he be not fined under section 27 of Consumer Protection Act.”

Thereafter appellant made statement before the District Forum and stated that due to pendency of criminal case under sections 420/506/508 of Indian Penal Code, 1860 (n short “IPC”) he was in jail and he could not  deposit the amount.  It was also stated by him that he would pay Rs.50,000/- by January, 2015 and remaining  amount will be released thereafter.  After hearing both the parties  impugned order was passed. So, it cannot be alleged that no proper opportunity was afforded to him before passing impugned order.  His statement was recorded after serving notice and it cannot be presumed without any evidence that the same was obtained under force.  Statement made to police in custody cannot be used against that person as provided in the Indian Evidence Act, 1872, but, any statement made in pursuance of notice can be looked into.

7.      Further, it cannot be alleged that provisions contained in Section 389 of Cr.P.C. were not complied with.  As per section 389 (3) of Cr.P.C. if convicted person satisfies the court by which he is convicted that he intends to present an appeal, he should be released on bail. In the present case there is no evidence on the file showing that appellant moved application showing intention to file appeal.  So, there was no question of suspending sentence.    It was like a civil imprisonment passed for non-payment of decreetal amount. Accused filed an application on 06.01.2015 for his release,  but, the same was got dismissed by him on 22.01.2015.  It has no where come on the file that he was pressurized to withdraw that application.

8.      Now the question comes about the payment of the amount.  When impugned order was passed appellant was looking after the affairs of O.P.No.1.  He was supposed to comply with dated  12.10.2012 which has attained finality.  He also stated before District Forum on 05.06.2015 that he would pay Rs.50,000/- upto January, 2015 and remaining amount  will be released lateron. He nowhere that he was not liable  to pay the amount.  If he was not liable to pay any amount, he should have taken stand before District Forum in the year 2013 when counsel appeared on his behalf.  Instead of moving any application to this effect he remained absent from the proceedings till 05.01.2015. His presence was procured through non-bailable warrants.  Letter annexure A-3 was issued on 01.09.2014 and was not in force when main order was passed or notice of execution application was served upon the appellant. Now it cannot be opined that he is absolved from all the responsibilities because if this principle is followed then a person managing the affairs of any society can delay the proceedings and lateron he can allege that he is no more in managing committee and cannot be penalized.  Delaying matter under one pretext or the other is no excuse for a defaulting person.  So, appellant cannot escape from his liability to make payment as stated by him on 05.01.2015.  It may be mentioned here that appellant gave post dated cheques to the complainant, but, they bounced.  The findings of learned District Forum are well reasoned based on law and facts and cannot be disturbed. Hence the appeal fails and the same is hereby dismissed.

 

 

February 05th, 2016  Urvashi Agnihotri                             R.K.Bishnoi,                                                 Member                                                Judicial Member                                           Addl. Bench                                       Addl.Bench               

S.K.