K N SASIKUMAR v. RAIBY

APPELLANT:

K.N. Sasikumar, S/o Narayanan, Kallarackal House, Kalaketty P.O., Kondoor Village, Meenachil Taluk, Kottayam - 686 508 (by Adv. C.S. Bissimon)

Vs.

RESPONDENTS:

1.

Raiby, Pandiyammackal House, Rajapuram P.O., Idukki

2.

Raveendran, Vellappallil House, Rajamudi P.O., Idukki

3.

The Service Co-operative Bank, Murikkassery represented by its President, Thomas, Karakkavilayil House, Perinjakutty P.O., Vathukkudy, Idukki

ORDER

HON'BLE JUSTICE SRI. B. SUDHEENDRA KUMAR: PRESIDENT

The appellant is the sole accused in S.T.No.17/2018 on the files of the District Consumer Disputes Redressal Commission, Idukki (for short 'the District

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Commission'), who in this appeal challenges the conviction and sentence passed by the District Commission under section 27(1) of the Consumer Protection Act, 1986.

2. The District Commission, as per order dated 31.10.2017, allowed the complaint, namely, C.C.No.284/2015 filed by the complainants and directed the first opposite party to pay Rs.1,00,000/- each to each of the complainants. It was further directed by the District Commission to pay Rs.5,000/- each as litigation costs to the complainants 1 and 2. There was also a default clause for interest.

3. The appeal filed against the said order before this Commission was dismissed as time-barred. Thereafter, the complainants filed S.T. No.17/2018 against the first opposite party under Section 27(1) of the Consumer Protection Act, 1986, to get the order of the District Commission executed by arrest and detention of the first opposite party.

4. The District Commission issued notice to the first opposite party who was the sole accused in the case. The plea of the sole accused was recorded. Thereafter, the trial was conducted. In the trial, PW1 was examined and Exhibit P1 was marked for the complainant/decree holder. Thereafter, the accused was examined under Section

313 Cr. P. C. The accused denied the incriminating materials in the evidence of the prosecution. Thereafter, the accused was called upon to enter on his defence. On the side of the accused, DW1 was examined. After evaluating the evidence, the District Commission convicted the accused and sentenced him to simple imprisonment for two

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months and a compensation of Rs.2,00,000/- and, in default of payment of compensation, to simple imprisonment for six months. Aggrieved by the said conviction and sentence in S.T. No.17/2018, this appeal has been filed.

5. Heard both sides. Perused the records.

6. The learned counsel for the appellant has submitted the appellant ought not to have been prosecuted in the execution an order passed by the District Commission against the first opposite party in the complaint, as there was no direction by the District Commission to realise the amount personally from the appellant and consequently, the conviction and the sentence passed by the District Commission cannot be sustained.

7. It appears that the District Commission directed the first opposite party to pay an amount of Rs.1,00,000/- each to the complainants. The first opposite party in the complaint is Bharat Sevak Samaj. The appellant herein was made as an accused, as the said Bharat Sevak Samaj was represented by the appellant as per the complaint. We have gone through the evidence on record. It was stated by DW1 that the accused did not collect any amount from the complainants and that he was not the programme co-ordinator of the first opposite party at any point of time.

8. We have gone through the order passed by the District Commission. The District Commission passed the order against the first opposite party, who is none

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other than Bharat Sevak Samaj. There was no order against the appellant herein in his individual capacity. Since an order was passed against Bharat Sevak Samaj, the said order can be executed by proceeding against the properties of Bharat Sevak Samaj. For executing the decree against Bharat Sevak Samaj, it was not legal, proper and correct to prosecute the appellant, as had been done in this case, against whom no order was passed by the District Commission in his individual capacity. Since no order was passed fastening liability on the appellant in his individual capacity, we are of the considered view that the order passed by the District Commission convicting and sentencing the appellant cannot be sustained. Consequently, we set aside the conviction and sentence passed by the District Commission in S.T. No.17/2018. The above view gains support from the decision of the Hon'ble Supreme Court in Singla H.K. vs Avtar Singh Saini and Others reported in 2018 KHC 7013 : AIR 2019

SC 187.

In the result, this appeal stands allowed, the conviction and sentence passed by the District Commission against the appellant in

S.T. No.17/2018 stand set aside and the appellant stands acquitted. The bail bond of the appellant stands discharged.

JUSTICE B. SUDHEENDRA KUMAR : PRESIDENT

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K.R. RADHAKRISHNAN : MEMBER

SL

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SRI.B.SUDHEENDRA KUMAR

PRESIDENT

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