DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.643 of 2015

                                                Date of institution:  02.12.2015                                             Date of decision   :  03.08.2018

Vishal Mehta son of Kuldeep Mehta, resident of House No.1008, Sector 56, Chandigarh. Previously resident of House No. HE 161, Phase-1, Mohali.

…….Complainant

Versus

The Institute of Computer Accountants of India (Regd.), House No.2266, Sector 61, Phase VII, Mohali through its President H.S. Pasricha.

                                                            ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member.

                Mrs. Natasha Chopra, Member.

Present:     Shri HPS Kochhar, counsel for complainant.

                Shri Tarun Jaitely, counsel for the OP.

Order by :-  Shri G.K. Dhir, President.

Order

               OP claims itself to be an institution providing facility for arranging education in universities all over India for various courses. OP suggested complainant to get degree of B.Ed. from Gauhati University by getting admission and then appearing in examinations in July, 2015. OP did nothing for getting of said admission in the university for the complainant. Complainant initially approached OP on 31.03.2015 for enquiring about the procedure for doing B.Ed. degree from any university. OP suggested at that time as if it has license from Gauhati University, Assam to get provided admission in various graduate and post graduate courses including B.Ed. course. Believing this assertion of OP, complainant availed services of OP by paying amount of Rs.25,000/- as total fee for new admission in B.Ed. course conducted by Gauhati University, Assam. Application form bearing No.180/34 filled with photograph and thereafter receipt No.49252 dated 31.03.2015 was issued. In July, 2015 complainant inquired several times from OP through mobile calls regarding fate of admission and date of prospective examination. OP informed as if the said examination will be conducted in August 2015. No satisfactory reply was given by OP when complainant asked for date sheet of the examination for B.Ed. course. Complainant was asked to visit office of OP, where he will be disclosed about the dates and venue of examination. In August complainant again inquired about fate of admission and dates of examination, but OP kept on procrastinating the matter. Rather OP claimed as if the examination will be held in October, 2015. Again on inquiry conducted by complainant from OP in October, 2015 no satisfactory reply was given by OP. However, OP claimed as if examination will start from 17.11.2015 in their centre at House No.2266, Sector 61, Phase-VII, Mohali. On 17.11.2015 complainant visited office of OP for finding that no examination is being conducted. Complainant agitated the issue with OP, on which OP handed over a print out of result purported to be that of the Gauhati University. In that print out of the result, complainant was shown to have passed after obtaining 690 marks out of 1200 marks. Registration number on that print out was mentioned as GU552897P12567. That print out was dated 06.10.2015. Complainant claimed that as he has not appeared in the examination and as such how the print out of his having passed the course handed over to him. Complainant demanded back his amount alongwith compensation for wasting one year of his academic career. Even written complaint was submitted with police on 17.11.2015 by complainant, but to no effect. Prayer made for directing OP to refund received amount of Rs.25,000/- with interest @ 12% per annum. Compensation for loss of academic one year of Rs.3.00 lakhs claimed alongwith compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.15,000/-. Even direction sought to OP to stop such practice, which is spoiling career and future of gullible students.

2.             In written reply submitted by OP, it is admitted that complainant filed complaint with PS Mataur against OP regarding the same subject matter. It is claimed that amicable compromise was arrived at between the parties before police and that fact has been concealed by complainant. Further it is claimed that as per terms of compromise, an amount of Rs.25,000/- has been refunded by OP to complainant and the said amount was accepted by him in full and final settlement of the claim through proceedings at PS Mataur. Copies of the recorded statements of both the parties alleged to be annexed with the reply.  Fee to complainant was refunded by OP at its own. Complainant undertook not to file any further case and withdraw his complaint. Even complainant filed a complaint under Section 156(3) of Code of Criminal Procedure on 30.11.2015 with the court of Shri Ashish Saldi for registration of FIR. Report from PS Mataur was called by the said court. In the status report, the police disclosed as if due to compromise effected between the parties on 17.11.2015, amount of Rs.25,000/- has been refunded by OP to complainant against recorded statements of both the parties. In view of that compromise, it is claimed that the present complaint is not maintainable. OP is a registered non profit educational society information centre. OP is a mediator in providing distance education to students for various courses. Information centre run by OP is under the name and style of  “The Institute of Computer Accountants of India (ICAII)” for the last several years. Students used to take admission through this information centre in various courses and OP used to get a fixed commission. Initially OP provides information about the list of universities, where OP is having tie up as a mediator alongwith list of courses with the tie up institution. Thereafter, concerned representative of OP used to deposit all the necessary documents in the concerned distance education university course. After admission of student in the concerned university, OP does not have any link with the student, albeit representative of OP used to provide correspondence address of university alongwith help number, in case of any query. After said admission, it used to be the sole responsibility of the student to get in touch with the particular university, where he has taken admission. Complainant got admission in Gauhati University through information centre of OP on 31.03.2015 by paying admission fee of Rs.25,000/-. Complainant used to inquire regularly about the venue and date sheet of the examination and even used to threaten OP that if the examinations were not conducted in fixed time frame, then he will falsely implicate the OP in false case. As OP is merely an information centre and mediator and as such it has no role in getting provided the degree. It is claimed that Gauhati University though a necessary party has not been impleaded in this complaint and as such complaint is bad due to non joining of necessary party. Even court of Ld. Magistrate on filing of application under Section 156(3) Cr.P.C. has held that no ground is made out for directing registration of FIR at this stage. However, the complaint was registered and complainant was required to adduce preliminary evidence on 18.03.2016. It is claimed that present complaint has been filed on conjectures and surmises for extorting money from OP by concocting frivolous story.  By denying other averments of the complaint, prayer made for dismissal of the complaint.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document Ex.C-1 to Ex.C-3 and thereafter closed evidence. On the other hand, counsel for OP tendered in evidence affidavit Ex.OP-1/1 of Shri Harjinder Singh, President of OP alongwith documents Ex.OP-1, Ex.OP-2 and Mark-A and thereafter closed evidence.

4.             Written arguments in this case submitted by both the parties. Oral arguments heard and records gone through.

5.             After going through Para No.9 of written arguments submitted by complainant, it is made out as if complainant wants to project that proceedings held on basis of complaint dated 17.11.2015, alleged to be filed by complainant with police are forged and OP liable to be prosecuted by initiating proceedings under Section 340 Cr.P.C. Question of forgery of a document prepared outside the proceedings of the Forum cannot be taken into in these summary proceedings because as per settled legal proposition, proceedings before Consumer Forum are summary in nature, where elaborate evidence is not required. As per plethora of precedents cited hereinafter, when question of forgery, cheating and fraud involved, then matter should be got decided from the court of competent jurisdiction because allegations of cheating, forgery requires elaborate evidence, which cannot be taken in proceedings before Consumer Fora. Reference in this respect may be made to ratio of cases titled as  P.N. Khanna Vs. Bank of India, II (2015) CPJ 54 (NC);  Bright Transport Company Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC): Oriental Insurance Co. Ltd. Vs. Munnimaesh Patel IV (2006) CPJ 1 (SC); Reliance Industries Ltd. Vs. United India Insurance Co. Ltd., I (1998) CPJ 13 (NC); M/s. Singhal Swaroop Ispat Ltd. Vs. United Commercial Bank, III (1992) CPJ 50 (NC); Sagli Ram Vs. General Manager United India Insurance Co. Ltd. II (1994) CPJ 444;  Harbans & Co. Vs. State Bank of India, II (1994) CPJ 456; Jayantilal Keshavlal Chauhan Vs. The National Insurance Co. Ltd. 1994(1) CPR 396 and Ranju Devi Vs. Branch Manager, State Bank of India 2015(4) CLT 131 (JHK).

6.             Complainant himself has produced on record copy of complaint dated 17.11.2015 addressed by him to SHO, PS, Phase-VII, Mohali regarding forgery in question by claiming that he did not appear in any examination, but despite that forged marks list provided to him and as such case under Section 420 IPC should be registered against OP. Even copy of gazettee notification of result of complainant, as issued by Gauhati University, is produced on record as Ex.C-2. In Ex.C-2 itself it is mentioned that though Vishal Mehta son of Kuldeep Mehta declared pass for B.Ed. course, but in the disclaimer note appended on foot of Ex.C-2 itself, it is mentioned that
Gauhati University or EDUSEARCH is not responsible for any inadvertent error that may have crept in the result being published on NET. In Ex.C-2 itself it is mentioned that this result cannot be treated as original mark sheet, because original mark sheet has to be issued by university separately. So just on the strength of Ex.C-2, it cannot be held that in fact Ex.C-2 is authentic information regarding passing of B.Ed course by complainant from Gauhati University. Gauhati University has not been impleaded as a party in this case and nor any witness from that university called for showing that Ex.C-2 is forged and as such due evidence regarding forgery of Ex.C-2 even cannot be said to be adduced by complainant in this case. If due evidence of forgery of Ex.C-2 or of Ex.C-3 not adduced, then it is better to leave the matter for decision by competent court of civil or criminal jurisdiction, so that parties may lead due evidence in support of their claim regarding forgery or otherwise of the documents Ex.C-2 and Ex.C-3 prepared outside the Forum proceedings. It is well settled that as and when a document is forged outside the court, then elaborate evidence in proof of allegation of forgery requires because truth can be fished out by conducting of examination and cross examination of the witnesses concerned and leading of due voluminous evidence.

8.             Complainant has placed on record copy of receipt Ex.C-1 for showing that an amount of Rs.25,000/- was deposited by him with OP on 31.03.2015 for new admission in B.Ed. course through Gauhati University. It is the case of OP that OP centre just provides information of various distance courses conducted by various universities and that is why fee of Rs.25,000/- was accepted for providing that information. Though it is claimed through Para No.3 of the written arguments that application form bearing No.180/34 was filled with photograph and thereafter complainant put signatures, but copy of that application form No.180/34 is not produced on record. In receipt Ex.C-1, mention regarding application form No.180/34 is made. Contents of that application form No.180/34 alone could have thrown light as to what were the terms and conditions contained therein for getting provided new admission to complainant in B.Ed. course, to be conducted by Gauhati University. No step has been taken for getting that application form No.180/34 produced on record and as such virtually plea taken by OP is not refuted by convincing evidence that in fact OP just provided information to complainant regarding various distance courses run by different universities. If function of OP is just to provide information, then on filling of form for admission in B.Ed. course, it can be said that responsibility will remain of complainant to contact university concerned for status of the submitted application form or for knowing about the date of examination etc.

9.             OP has produced on record copy of statement Ex.OP-1 of complainant recorded by HC Avtar Singh of PS Mataur for showing that complainant suffered statement before police having received back Rs.25,000/- from Harjinder Singh, owner of OP. In Ex.OP-1 it is specifically mentioned that as Harjinder Singh has returned back the amount of Rs.25,000/- and as such complainant Vishal Mehta not to continue with the proceedings of the complaint filed with the police. Through this recorded statement Ex.OP-1, complainant claimed as if the application filed by him may be consigned. A similar statement of Harjinder Singh Pasricha, President of OP was recorded by HC Avtar Singh and copy of the same also produced on record.  It was after record of these statements that HC Avtar Singh of PS Mataur recorded DDR note for holding that as compromise has been arrived at between complainant and Harjinder Singh and as such the application filed by complainant Vishal Mehta recommended to be consigned to records. Copy of that DDR is produced on record as Ex.OP-2. That HC Avtar Singh PS Mataur has not been called as a witness and nor any record from PS Mataur called by complainant for showing about the forgery of above referred recorded statements of complainant and President of OP. So certainly complainant has suppressed material facts regarding this compromise. Even if assuming for arguments sake that these documents of compromise i.e. recorded statements of complainant and Harjinder Singh are forged, even then remedy available with complainant is to approach the civil court for establishing forgery. Question of forgery of those proceedings before police can be gone into either by civil court of competent jurisdiction or by court dealing with criminal cases. That question in fact has been raised by complainant by filing complaint under Section 156 (3) of Cr.P.C. in the court of Shri Ashish Saldi, Ld. Illaqa Magistrate, Mohali. Copies of orders dated 07.01.2016 in that Criminal Complaint No. 231 of 2015 of Shri Ashish Saldi, Ld. JMIC has been produced in the shape of copy thereof as Mark-A.

10.            After going through Mark-A, it is made out that Ld. Illaqa Magistrate called for report from concerned police station for finding as to whether compromise has been arrived at between the parties after record of their statements or not. Report of concerned police station regarding arrival of compromise was received by Ld. JMIC, Mohali and reflection of the same made in Mark-A itself. However, counsel for complainant claimed in the proceedings of that Criminal Complaint No.231 that no such compromise has been effected and nor any amount received by complainant. In view of that, Ld. Magistrate found as if no ground made out for directing registration of FIR at that stage. However, application filed under Section 156(3) Cr.P.C. by complainant was treated as complaint by court of Ld. JMIC. Complainant was required to prove allegations by leading evidence in that regard. Therefore, from the contents of order of Ld. JMIC dated 07.01.2016, as reflected through Mark-A, it is made out that question of forgery of the proceedings before police is under active consideration of the court dealing with criminal case. Parallel proceedings even not permissible. As question of forgery of proceedings of record of statements of parties is involved in proceedings pending before Ld. JMIC i.e. before competent court and as such this Forum in summary proceedings must not give any finding in that respect.

11.            Even in cases titled as Hanuman Prasad Vs. The New India Assurance Co. Ltd. I (1994) CPJ 1 (NC); Kalyanpur Cold Storage Vs. New India Assurance  Company & Ors., II (2015) CPJ 117 (NC), it has been held that when a case is pending in a court in which full evidence is to be recorded, then Forum constituted under the Consumer Protection Act, should not entertain the consumer complaint with respect to same cause of action. As the proceedings regarding subject matter in question are pending before criminal court having competent jurisdiction through institution of Criminal Complaint No.231 of 27.11.2015 and as such same proceedings regarding forgery of documents prepared by police, cannot be carried out through this complaint, which has been instituted on 02.12.2015 i.e. after filing of application under section 156(3) Cr.P.C. before Ld. Illaqa Magistrate, Mohali. So looking from all angles, the complaint merits dismissal, but with the observations that the complainant may approach the competent court for availing remedy. Such remedy may be availed by complainant from civil court/court dealing with criminal cases. This complaint, therefore, merits dismissal in view of above cited factual and legal position.

12.            As a sequel of above discussion, the complaint dismissed with observations that the complainant may approach the civil Court/court dealing with criminal cases for availing remedy. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

August 03, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                       (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member