JUDGMENT

1. Heard Mr. Naik, learned Counsel for the petitioner and Mr. Awode, learned Counsel for the respondent. Rule. Rule returnable forthwith.

2. By an order dtd. 23/02/2022, while issuing notice, the contention advanced by Mr. Naik, learned Counsel for the petitioner in this regard, have been summarized as under :

(A) In a case of a penalty under Sec. 27(1) of the Consumer Protection Act, 1986, as the State Commission under Sec. 27(2) of the said Act has been conferred with the power of a Judicial Magistrate, First Class for trial of offence under the said Act, and the State Commission shall be deemed to be a Judicial Magistrate, First Class for the purpose of the Cr.P.C., by virtue of Sec. 27(3) of the said Act, all offences under the said Act of 1986, are to be tried summarily.

(B) In view of Sec. 27(2) and (3) of the said Act, the offences which are punishable under Sec. 27(1) of the said Act shall have to be tried in a summary manner, as contemplated by Sec. 260 of the Cr.P.C., and Sec. 262(1) of Cr.P.C. directs that the procedure specified in the Code for the trial of summons cases shall be followed for a summery trial under Sec. 260 of Cr.P.C., except as otherwise indicated.

(C) The trial of summons cases by the Magistrate is covered in Chapter XX of the Cr.P.C. and Sec. 254 of Cr.P.C. indicates that if conviction is not there under Sec. 252 or 253, on account of the accused having not pleaded guilty, the procedure as prescribed therein shall have to be followed, indicating that the Magistrate shall have to proceed to hear the prosecution and take all evidence as may be produced in support of the prosecution and also to hear the accused and take all evidence as he produces in his defence.

(D) This requirement of Sec. 254(1) of Cr.P.C. has not been followed by the learned State Commission while deciding an offence under Sec. 27(1) of the Consumer Protection Act and straight away affidavits have been directed to be filed by the accused, which is in total contradiction to the requirement of Sec. 254 r/w Sec. 260 of Cr.P.C. and Sec. 27(3) of the Consumer Protection Act. "

3. It is in continuation of the above, it is contended by Mr. Naik, learned Counsel for the petitioner that the procedure followed by the learned State Commission in conducting the matters under Sec. 27 of the C.P. Act, 1986, would indicate that there is absolute breach of the requirements of law, inasmuch as the learned State Commission by refusing to record the evidence of the complainant, permit cross-examination and so also permit leading of defence evidence, has violated the mandate of Sec. 27 (1) and (2) of the C.P. Act, 1986 as well as Ss. 260, 262 and 254 of the Cr.P.C. This being so, it is contended that the entire procedure adopted by the learned State Commission in conducting the proceedings under Sec. 27 of the C.P. Act, 1986, being in contravention to the above provisions, was not sustainable and was liable to be quashed and set aside and the impugned orders were also likely to be rendered with the same fate.

4. It is also contended that while deciding the liability of the petitioner on the basis of the order suffered by him by the State Commission vis-a-vis the prosecution launched against him under Sec. 27 of the C.P. Act, 1986, what was material was to render a finding that such default was wilful and deliberate on part of the petitioner and it is only upon such finding being rendered after following the due procedure, as contemplated by Sec. 254 of Cr.P.C., that any conviction could be upheld.

4.1. Reliance is placed upon State of Karnataka Vs. Vishwabharathi House Building Coop. Society and others, (2003) 2 SCC 412 (para 58) in which the provisions of Sec. 27 of the C.P. Act, 1986 have been held to be akin to Order XXXIX Rule 2-A and Order XXI Rule 37 of C.P.C.

4.2. On Vasant Manga Mahajan and others Vs. Baburao Bhikanna Naidu and another, 1979 CRI.L.J. 526, which holds that summons case under Sec. 254 of Cr.P.C., cannot be decided merely o