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in | 2/4/2023

AIR 2020 BOMBAY 315 :: 2020 (2) ABR(CRI) 664

CRIMINAL APPLICATION - 3049 of 2019, decided on 12/05/2020

Criminal P.C. (2 of 1974) , S.482— Consumer Protection Act (68 of 1986) , S.27(1),
S.27(3)— Quashing of order - Complaint against accused persons for non payment of
amount of fixed deposits - Directions of District Consumer Forum to repay amount of
fixed deposits along with interest - Non compliance of order by accused persons -
Execution applications filed by complainants under S. 27(1) , (3) of Consumer
Protection Act- Issuance of non bailable warrant against accused persons - Accused
persons taken in custody - Accused/applicant filed application for cancellation of non
bailable warrant and was released on bail - Plea of accused recorded by Forum and
asked to satisfy Award, else would be sent in jail - Oral request made by accused that
society would be repaying amount to depositors and same was in process -District
Forum did not even put matter for evidence - Forum without following due
procedure of law passed order of cancellation of his bail and took him in custody -
Order of cancellation confirmed by State Commission - Neither any steps taken
against other accused persons nor there was separation of trial - Unless there would
have been a proper separation of trial, steps could not have been taken only against
one accused- Bail was cancelled without going into merits of case by adopting
summary procedure - Such procedure not contemplated under S. 27(1) or 27(3) of
1986 Act - As basic procedure adopted was not as per law, inherent powers of Court
could invoked - Order of District Forum and State Commission liable to be quashed.
(Para 9, 10, 12)

Case Referred : Chronological Paras

Criminal Application No.1265 of 2018 and other companion matters, Abhay Narayan Raje vs. The State of
Maharashtra and others dated 26.06.2018.

Criminal Application No.3424 of 2019, Dipak Bhaskar Rane vs. The State of Maharashtra and others dated
14.01.2020

Criminal Application No.6630 of 2017 and other companion matters, Chandrakant Hari Badhe vs. State of
Maharashtra and others dated 28.02.2018

Criminal Application No.5196 of 2017, Chandrakant Hari Badhe vs. The State of Maharashtra and others dated
03.11.2017

Criminal Application No.1266 of 2018 and other companion matters, Abhay Narayan Raje vs. The State of
Maharashtra and another dated 19.06.2018

Criminal Application No.5197 of 2017, Chandrakant Hari Badhe vs. The State of Maharashtra and others dated
03.11.2017

Criminal Application No.1062 of 2018, Rajesh Malkitsingh Gade vs. State of Maharashtra and another dated
12.09.2018.

Writ Petition No.4264 of 2014, Ackruti Jay Developers vs. State of Maharashtra and others dated 20.06.2014.

Name of Advocates

B. A. Chavan for Petitioner; B. V. Virdhe, APP, A. N. Nagargoje, N. R. Thorat for

1.ORDER :-All these applications have been filed invoking the inherent powers of this
Court under Section 482 of the Code of Criminal Procedure, 1973 to challenge the order
dated 29.08.2019 passed by learned District Consumer Redressal Forum, Jalgaon in
Execution Applications filed by the respondent No.2, in each of the applications, who
were the original complainants. It appears that in all five applications i.e. Execution
Applications were filed against the present applicant bearing No.EA/09/486 in cc/08/682,
EA/09/487 in cc/08/681, EA/09/489 in cc/08/678, EA/09/490 and EA/09/499 in cc/08/677
before the learned District Consumer Redressal Forum, Jalgaon under Section 25 of the
Consumer Protection Act. It is also stated therein, that it is also under Section 27 of the
said Act.
2. The original complainant had come with a case, that the present respondent No.3, which
is a registered Co-operative Society, was managed by the present applicant and the elected
body. The original complainants had contended, that they had deposited amount with the
society in Fixed Deposit and upon the maturity of the said deposit the said amount was to
be given along with the interest. Even after the maturity, the society did not give the
amount to the complainants, and therefore, they had filed complaint applications before
the District Consumer Redressal Forum. All the complaints came to be allowed. There
were in all 7 opponents/respondents to the original complaint application. All of them
were directed to pay the amount under Fixed Deposit along with 9% interest, from the date
of the maturity of the deposits till actual realization. Further, the compensation and costs
were also awarded. The said amount was to be deposited within one month from the date
of the respective orders. It is stated, that when there was no compliance of these orders,
which were passed in the original complaint proceedings, the Execution Applications have
been filed by all the respective complainants. Initially, summons was issued to the
petitioner and it is stated, that even after receiving the same he did not appear, and
thereafter, bailable warrant and non bailable warrant has been issued. In fact, all the earlier
summons and bailable warrants were not received by the applicant. Later on the
complainant provided new and correct address, and therefore, non bailable warrant was
issued on 29.11.2018, on the new address, provided by the original complainant. In
pursuance to the said non bailable warrant the applicant was taken in custody on
11.12.2018 by Bhusawal Bazarpeth Police Station. Thereafter, when he was produced
before the Court, he filed application for cancellation of non bailable warrant. It was
allowed by the Consumer Forum and bail was granted to him. Accordingly, he has
furnished the surety and personal bond. His plea was recorded on the same date i.e. on
12.12.2018 and then the matter was adjourned for bail of respondent Nos.4 and 5.
Thereafter, on the next day i.e. on 13.12.2018 the respondent Nos.4 and 5 furnished bail.
Thereafter when the applicant was present on 18.01.2019 before the Forum and his
Advocate was absent, Forum asked the applicant to satisfy the Award on that day itself,
otherwise he would be sent in jail. It was orally told by him, that the society would be
repaying the amount to the depositors as per the recovery from the borrowers and the
procedure of auction of the property of two borrowers has been initiated by the society and
it has also stated that the complainant can participate in the auction and can get the sale
proceeds. However, the Forum refused the oral request of the applicant. When applicant
requested for adjournment, since his Advocate was not present, the Forum rejected his
request and gave time till 4.00 p.m. only to satisfy the Award. The District Consumer
Forum without following due procedure of law cancelled his bail and taken him in
Magisterial Custody on 18.01.2018. The applicant preferred revision challenging the said
action by the District Consumer Forum in Revision Petition before State Consumer
Dispute Redressal Forum, Mumbai. Ad interim bail was granted. Further, when the
applicant was absent on 27.08.2019, so also the Regular Bench was not available, the
board was discharged. The Advocate for the applicant left the commission for his other
Court work. But then the Advocate for the respondent i.e. original complainant moved the
other Bench in the afternoon session and the said Bench without considering the record
passed order, confirming the order of cancellation of bail by the District Consumer Forum.
It is stated, that the said order passed by the learned State Commission is illegal, and
therefore, it has been challenged in these applications.
3. Heard learned Advocate Mr. B.A. Chavan for applicant, learned APP Mr. B.V. Virdhe
for respondent No.1-State, learned Advocate Mr. A.N. Nagargoje for respondent No.2 and
learned Advocate Mr. N.R. Thorat for respondent No.3, in all matters.
4. It has been vehemently submitted on behalf of the applicant in all the applications, that
neither the District Consumer Forum nor the State Commission had considered, that the
action under Section 27 of the Consumer Protection Act could not have been
simultaneously taken with Section 25 of the Act. Further, procedure contemplated under
Summary Criminal Case should be adopted in proceedings under Section 27 of the Act.
The satisfaction of the original Award could not have been proceeded only against one of
the original respondents, as the Award was passed against original respondent Nos.1 to 7,
jointly and severally. Further, the learned State Commission failed to consider that the
matter was assigned to another Bench and since the said Bench was not available, the
board was discharged. After discharge of the board if the application was filed for issuance
of non bailable warrant or cancellation of earlier interim order, then opportunity of being
heard ought to have been given. The said order on the merits of the case ought not to have
been passed in a cryptic manner. The State Commission also failed to consider that
unnecessary burden was put on the accused to prove that he had complied with the Award,
that was passed earlier. The District Consumer Forum could not have insisted that he
should comply with the said order before 4.00 p.m. on the same day. The order, that was
passed by the District Consumer Forum on 18.01.2019, was itself illegal and further
illegality has been committed by the State Commission. Both these orders deserves to be
set aside.
5. The learned Advocate appearing for the applicant has relied on various orders passed by
this Court either by this Bench or at Principal seat. The list of the same is given as follows
:
1. Criminal Application No.1265 of 2018 and other companion matters, Abhay Narayan
Raje vs. The State of Maharashtra and others dated 26.06.2018.
2. Criminal Application No.3424 of 2019, Dipak Bhaskar Rane vs. The State of
Maharashtra and others dated 14.01.2020.
3. Criminal Application No.6630 of 2017 and other companion matters, Chandrakant Hari
Badhe vs. State of Maharashtra and others dated 28.02.2018.
4. Criminal Application No.5196 of 2017, Chandrakant Hari Badhe vs. The State of
Maharashtra and others dated 03.11.2017.
5. Criminal Application No.1266 of 2018 and other companion matters, Abhay Narayan
Raje vs. The State of Maharashtra and another dated 19.06.2018.
6. Criminal Application No.5197 of 2017, Chandrakant Hari Badhe vs. The State of
Maharashtra and others dated 03.11.2017
6. In the nutshell, in all these orders, this Court has considered that the application under
Section 482 of the Code of Criminal Procedure is maintainable to challenge the order of
taking the original respondent in custody under the provisions of 27 of the Consumer
Protection Act and further in each of the case it was discussed, as to how the Forum had
went wrong in not adopting proper procedure while taking the concerned original
respondents/applicants in custody.
7. Per contra, the learned Advocate appearing for the original complainant-respondent
No.2 in all the matters has vehemently submitted that the District Consumer Forum as
well as State Commission have followed proper procedure. If we consider the amount, that
was deposited by all the complainants in the society, then it goes in lacs of rupees. It was
the hard earned money of the original complainants and only because it was promise by
the society, which was run by the present applicant as a Chairman, that handsome interest
would be given; that amount was deposited with the society. Inspite of the maturity of the
said amount they have not given the amount back with interest, rather though the original
proceedings were filed in the year 2008 and the recovery proceedings started in 2009, yet
till today not a single pai has been paid to the complainant. Every step is being taken to
avoid payment. Opportunity has been given to the original respondent to comply with the
Award that has been passed in each matter. However, since there is no compliance, it is but
natural to adopt coercive method.
8. The learned Advocate appearing for the respondent No.2 has relied on following orders
:
1. Criminal Application No.1062 of 2018, Rajesh Malkitsingh Gade vs. State of
Maharashtra and another dated 12.09.2018.
2. Writ Petition No.4264 of 2014, Ackruti Jay Developers vs. State of Maharashtra and
others dated 20.06.2014.
On the basis of facts involved in these cases this Court at Principal seat has upheld the
order, that was passed by the Forum and State Commission.

9.At the outset, it is to be noted that in the original proceedings Award was passed on
26.06.2009, wherein directions were given to original respondent Nos.1 to 7 to repay the
amount of the Fixed Deposits of the complainant along with the interest. Thereafter, when
the complainants saw that there is no compliance of the said order, they have filed
complaint applications under Section 25 and 27 of the Act. That means, both the remedies
have been tried to be simultaneously adopted. It appears that a non bailable warrant was
issued on 12.12.2018 under Section 70 read with Section 7 of Cr.P.C. for arrest of present
applicant and in pursuance of the same he came to be arrested and produced on the same
day before the Forum. Inspite of the fact that the applicant was arrested, yet, it appears that
upon the legal advise given to him, he filed an application for cancellation of non bailable
warrant and recall of non bailable warrant and release of the applicant on bail. The said
application came to be allowed and he was released on bail. However, on the same day his
plea was recorded. The impugned order, that was passed by the learned District Consumer
Forum on 18.01.2019, does not say that after recording of plea the procedure contemplated
for Summary Criminal Trial was taken up and the complainant was directed to adduce
evidence. The order is also silent on the point, that the complainant had given pursis
stating that he/she has no intention to lead evidence. The impugned order rather states, that
the accused has not produced any evidence for showing compliance of the Award, in view
of the Penal provisions contemplated under Section 27 of the Consumer Protection Act.
The present applicant was accused in the matter and burden of proof cannot be on the
accused. When the District Forum, as it appears, did not even put the matter for evidence,
proper procedure cannot be said to have been adhered to. There might still be some
defence with the accused for non complying the said order. Another fact, which was not
considered either by the District Forum or by the State Commission, that when the original
application under Section 25 and 27 was filed against in all seven persons, out of whom
name of No.2 was deleted, and then no steps were taken against the other respondents.
Unless there could have been a separation of trial, as contemplated under law, after
adopting due procedure, only the present applicant could not have been insisted for
compliance of the Award, though the Award is stated to be joint and several. It appears
that from the impugned order of the District Forum that only the present applicant i.e.
original accused No.1 was present and he was insisted. Another surprising fact is, that
accused Nos.4 and 5 had produced a document, which was the order dated 11.09.2013
passed under Section 88 of the Co-operative Societies Act by the competent authority, in
which it was stated that the present applicant had undertaken and given statements, that all
the financial transactions have been made by him in his capacity as Chairman and he
admitted that he is personally liable for any transactions, which are beyond the rules. The
admission in the said matter has been used, in such a way by the District Forum for
proceeding only against applicant, when that admission is not before the Forum itself.
Such acceptance of evidence is illegal. When the complainant had not led any evidence
and unless each of the accused discharges his right to adduce evidence, it cannot be so
used in absence of the evidence of one side against each other. The present petitioner-
accused No.1 had sought time, since his Advocate was absent, yet, it appears that the
District Forum has unnecessarily put a condition, that he should comply with the order on
that day itself till 4.00 p.m.. The District Consumer Forum cannot put such harsh and
unrealistic conditions. The bail was cancelled and he was taken in custody immediately by
the District Consumer Forum. Important point to be noted is, that if the Consumer Forum
was of the view that there is no compliance of the Award passed by it and the offence has
been committed/complete action for contempt of the order of the Forum has been
committed, then there was no hurdle for the Forum to pronounce the Judgment itself on
that day. Instead of pronouncing the Judgment, only bail has been cancelled, without going
into the merits of the case by adopting summary procedure. Such procedure is not
contemplated under Section 27(1) or 27(3) of the Consumer Protection Act.

10.All the above aspects were not considered by the State Commission, when the order
dated 27.08.2019 was passed. No doubt, at this stage there is nothing on record produced
by the applicant that, in fact, his petition was assigned to the another Bench, yet, when the
Bench was not available, the board was discharged and it ought not to have been taken by
another Bench of the State Commission. Even if we take the order, that was passed by the
Bench of the State Commission on 27.08.2019, yet, it appears that only apparent things
have been considered and it was not considered that no steps were taken by the original
complainant against other accused, there was no separation of trial. It also appears that
only the plea of the present petitioner was recorded, though other persons were posed as
accused. When Section 27(3) of the Consumer Protection Act gives power of a Magistrate
to the District Consumer Forum and the procedure that is required to be adopted by the
Forum for the action under Section 27 of the Act is summary trial as contemplated under
Section 260 to 262 of Cr.P.C., then unless there would have been a proper separation of
trial, steps could not have been taken only against one accused. When both the Judicial
Authorities have not considered these points, definitely interference is required by
exercising inherent powers of this Court under Section 482 of the Code of Criminal
Procedure.
11. In Rajesh Gade's case relied by the learned Advocate for the respondent No.2, the facts
were different. It appears that he was the only accused in that matter, who was directed to
hand over vacant and peaceful possession of 415 square carpet area on the second floor of
newly constructed building or hand over identical size tenement in the same locality
within the period of 45 days from 11.12.2015. It also appears that many opportunities were
given to the applicant therein to comply with the order. Further, the main point was that,
he had challenged the order passed by the Commission in order to approach further Forum
and then this Court held that, "Admittedly the applicant intends to challenge the order
before the Appellate Authority i.e. the National Commission. In the circumstances, in
exercise of powers under Section 482 of Cr.P.C. this Court cannot grant bail to the
applicant to enable him to prefer an appeal before the appropriate authority."
Here, when the basic procedure that is adopted was not as per the law, then definitely
inherent powers of this Court will have to be invoked. In Ackruti Jay Developers's case, it
was a writ petition, wherein order passed by the State Consumer Forum dismissing the
revision petitions and confirming the orders passed by the District Consumer Forum, Pune
were confirmed, were under challenge. In the matter before District Forum it appears that
an application came to be filed by the petitioner under Section 8 of the Arbitration and
Conciliation Act, 1996 invoking the Arbitration clause in the agreement and the said
application was rejected. That order was challenged in the revision petition. There is no
such factual aspect involved in the present matters before us. The decisions relied by the
learned Advocate for applicant are applicable here.

12.For the aforesaid reasons, the inherent powers of this Court are required to be invoked,
to quash and set aside the order passed by the learned State Commission on 27.08.2019
and also order passed by District Consumer Forum on 18.01.2019, thereby cancelling the
bail granted to the applicant and taking him in custody. Accordingly, both these orders are
set aside and quashed. It will not be out of place to mention here, that this Court had by
order dated 11.09.2019 released the applicant on ad interim bail on furnishing personal
recognition of an amount of Rs.15,000/- and on furnishing a solvent surety in the like
amount before District Consumer Forum. The said order to continue in the said
proceedings before the District Consumer Forum. District Consumer Forum to adopt
proper procedure and dispose of all the Execution Proceedings as per the appropriate
procedure under Law.
Order Accordingly