CRIMINAL MISCELLANEOUS No.23957 OF 1998
----
In the matter of an application under Section
482 of the Code of Criminal Procedure,1973.
—-
KANTI SHAH, SON OF KANTI DAMJI BHAI SHAH, RESIDENT
OF 1/17, NEW SUJATA BUILDING, JUHU TARA ROAD, SANTA
CRUZ, WEST BOMBAY.
... ... PETITIOENR.
Versus
1. THE STATE OF BIHAR
2. ANANT PRASAD ANAND, SON OF SRI KASHI PRASAD,
PROPRIETOR SANKAT MOCHAN PICTURES, 3, NARMADA
APARTMENT, EXHIBITION ROAD, P.S. GANDHI MAIDAIN,
DISTRICT PATNA.
... ... OPPOSITE PARTIES.
----
For the Petitioner : M/S Ashwani Kumar Singh, Sr. Adv.
Pankaj Kumar Singh, Adv.
For O.P. No.2 : M/S Syed Arshad Alam, Adv.
Gautam Kumar Yadav, Adv.
For the State : Mr. A.M.P. Mehta, A.P.P.
----
P R E S E N T
THE HON’BLE MR. JUSTICE RAKESH KUMAR
—-
Rakesh Kumar,J. The sole petitioner, while invoking
inherent jurisdiction of this Court under
Section 482 of the Code of Criminal
Procedure, has prayed for quashing of an
order dated 29.4.1998 passed by Smt. Sushma
Sinha, Judicial Magistrate, Patna in
Complaint Case No.382(c) of 1998. By the said
order, learned Magistrate has taken
cognizance of offence under Section 420 of
the Indian Penal Code and directed for
summoning the petitioner to face trial.
2. Short fact of the case is that
2
opposite party no.2 filed a complaint in the
court of Chief Judicial Magistrate, Patna,
which was registered as Complaint Case
No.382(c) of 1998. The complaint was filed
against the sole petitioner for the offence
under Sections 406 and 420 of the Indian
Penal Code. It was alleged that the
complainant had approached the petitioner
telephonically from his Patna office for
distribution, exploitation and exhibition
right of a picture, namely, LOHA in Hindi for
the territory of Bihar and Nepal. Initially,
the total amount was fixed to the tune of
Rs.34 lakhs. However, on request made by the
complainant, the amount was reduced to Rs.28
lakhs and petitioner in the month of February
and March, 1997 made initial payment of
Rs.6.26 lakhs on different dates. In the
complaint petition, it was asserted that
complainant went to Mumbai and paid the
balance amount to the petitioner and
thereafter, a final receipt dated 16.10.1997
of full and final payment was made. The
complainant has stated that the petitioner
informed the complainant for release of film
‘LOHA’ on 17.10.1997. The complainant
3
disclosed in the complaint petition that the
petitioner sent a registration letter dated
15.2.1997 to the Secretary, Bihar Motion
Picture Association for LOHA picture in
favour of the complainant for Bihar and Nepal
territory for seven years from the date of
first release in the said territory, which
was subsequently, registered for the period
of ten years. Accordingly, the said film was
registered to be displayed within the
territory of Bihar and Nepal in favour of M/S
Sankat Mochan Pictures of which the
complainant was Proprietor. It has been
alleged in the complaint petition that
subsequently, the petitioner had given the
said right in favour of one M/S Viratnagar
Picture Exchange, Viratnagar, Nepal. It was
asserted by the complainant that the
petitioner had cheated the complainant by way
of giving the right of distribution,
exploitation and exhibition of the film
‘LOHA’ to M/S Viratnagar Picture Exchange
whereas initially the payment was made by the
complainant for being appointed for both the
areas i.e. Bihar and Nepal and agreement was
already entered in between the complainant
4
and the petitioner. The complainant has
asserted that due to the said act, the
petitioner had cheated and mis-appropriated
the amount to the tune of Rs.10 lakhs of the
complainant. After filing the complaint
petition, the complainant was examined on
S.A. and in support of complaint petition,
witnesses were examined, who corroborated the
stand of the complainant and thereafter, by
the impugned order i.e. by order dated
29.4.1998, the learned Magistrate took
cognizance of offence under Section 420 of
the Indian Penal Code.
3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On
23.12.1998, the petitioner was permitted to
add the complainant of the case as opposite
party no.2 and the case was admitted for
hearing. Since opposite party no.2 had
already entered his appearance through his
advocate, no notice was directed to be issued
to him. This Court further directed that till
disposal of this case, further proceeding in
Complaint Case No.382(c) of 1998 in the court
below shall remain stayed. The order of stay
5
is still continuing. After the admission of
the case in the year 2003, an Interlocutory
Application vide I.A. No.1172 of 2002 was
filed on behalf of opposite party no.2 for
vacating the stay. However, same was rejected
on 31.3.2003.
4. Shri Ashwani Kumar Singh, learned
Senior Counsel appearing on behalf of the
petitioner, while challenging the impugned
order, submits that the perusal of the
complaint petition itself makes it clear that
the petitioner never intended to cheat the
complainant. It has been submitted by Shri
Singh that after appointing the complainant
for exploiting and displaying the film ‘LOHA’
within the territory of Bihar and Nepal, the
petitioner had taken sincere step and he
informed the Secretary, Bihar Motion Picture
Association, Patna regarding the said right
of exclusive distribution, exploitation and
exhibition of film title ‘LOHA’ to M/S
Sankat Mochan Pictures, Patna for the
territory of Bihar and Nepal. The said letter
was issued on 15.2.1997, which was
subsequently, corrected by letter dated
18.3.1997 whereby the period of seven years
6
was enhanced to ten years. It has been
submitted by Shri Singh that Nepal Motion
Picture Association was not agreeable for
entrusting the said right to the complainant
and as such vide letter dated 27.5.1997,
which was sent through the complainant i.e.
M/S Sankat Mochan Pictures, the Secretary
Nepal Motion Pictures Association was
communicated for giving such right. It was
submitted that the portion regarding the name
of purchaser of the right was kept blank.
Learned counsel for the petitioner has
further, while referring to Annexure-1 to the
petition, submitted that even after receipt
of letter dated 27.6.1997, which has been
annexed as Annexure-4 to the petition (at
page-30), the complainant had made full and
final payment to the petitioner on
16.10.1997. Accordingly, it has been
submitted that after being fully satisfied
that there were difficulty in entrusting the
said right to the complainant, the
complainant agreed for exercising his said
right to the territory of Bihar and as such
final payment was made. It has been submitted
that the chain of events, which has been
7
incorporated in the complaint petition itself
clarifies that the petitioner had never
intended to cheat the complainant. It has
been alternatively argued by learned Senior
Counsel for the petitioner that hardly it can
be said that it was a breach of contract and
for such act, the complainant was entitled to
approach the court of civil jurisdiction. In
the facts and circumstances of the present
case, the complainant was not at all entitled
to approach the court of criminal
jurisdiction and similarly, the learned
Magistrate has exceeded its jurisdiction by
way of entertaining the said complaint and
thereafter, by way of proceeding with the
said case.
5. Shri Ashwani Kumar Singh, learned
Senior Counsel for the petitioner, has
referred to a case law reported in 2007(7)
SCC 373 (Vir Prakash Sharma Vs. Anil Kumar
Agarwal & another). It has been submitted
that in a case where the court is satisfied
that the entire complaint petition, if taken
to be correct in its entirety do not disclose
an offence, this Court is entitled to quash
the entire proceeding while exercising power
8
under Section 482 of the Code of Criminal
Procedure. Learned counsel for the petitioner
has further relied on a case law reported in
2005(10) Supreme Court Cases 336(Uma Shankar
Gopalika Vs. State of Bihar). It has been
submitted by Shri Singh, on the basis of Uma
Shankar Gopalika’s case (Supra), that for
constituting an offence under Section 420 of
the Code of Criminal Procedure, it has to be
established that there was intention of
cheating from the very inception. Even if
such intention is developed later on, the
same would not amount to cheating. It has
been submitted by Shri Singh that the whole
complaint categorically specifies that the
petitioner had never intended to cheat the
complainant and even the final payment by the
complainant was made after being fully
satisfied that it was difficult for the
petitioner to give the right of displaying
and distribution of the film ‘LOHA’ within
the territory of Nepal and as such the
learned Magistrate had committed a serious
error, while taking cognizance of offence
under Section 420 of the Indian Penal Code in
absence of any material or fact disclosing
9
commission of offence under Section 420 of
the Indian Penal Code. Learned Senior Counsel
for the petitioner has referred number of
case laws on the aforesaid points. Learned
counsel for the petitioner has further taken
a stand that no cause of action arose within
the territorial jurisdiction of the court at
Patna and as such the learned Magistrate was
not authorized to entertain the complaint
petition and take cognizance of the offence.
On the aforesaid grounds, learned counsel for
the petitioner has prayed for setting aside
the impugned order of cognizance.
6. Mr. Syed Arshad Alam, learned
counsel appearing on behalf of opposite party
no.2, has vehemently opposed the prayer of
the petitioner. It has been argued by Mr.
Alam that the contents of the complaint
petition categorically states that the
petitioner had cheated the complainant. It
has been submitted that initially the
petitioner had agreed to give the right of
distribution, exploitation and exhibition of
the film ‘LOHA’ within the territory of Bihar
as well as Nepal and thereafter, the payment
was made by the complainant. However,
10
subsequently, the complainant noticed that he
was cheated by the petitioner and in place of
the complainant, one M/S Viratnagar Films was
given said right for total amount of Rs.7.5
lakhs only on 18.10.1997. Mr. Arshad Alam,
learned counsel appearing on behalf of
opposite party no.2, has submitted that on
the basis of materials on record, the learned
Magistrate has rightly taken cognizance of
the offence. It has been submitted that time
without number, it has been clarified that at
the initial or interlocutory stage of a
criminal proceeding, this Court should
refrain from exercising power under Section
482 of the Code of Criminal Procedure. It has
been submitted that it is not a fit case for
exercising power under Section 482 of the
Code of Criminal Procedure in favour of the
petitioner. It has further been submitted
that whatever pleas have been taken by the
petitioner can well be taken at appropriate
stage before the concerned court.
Accordingly, it has been prayed to reject the
present petition.
7. Shri A.M.P. Mehta, learned
Additional Public Prosecutor appearing on
11
behalf of the State, has supported the stand
of Mr. Arshad Alam, learned counsel appearing
on behalf of opposite party no.2.
8. Besides hearing learned counsel
for the parties, I have also perused the
materials available on record particularly
the contents of the complaint petition and
the impugned order. After going through the
contents of the complaint petition, the court
is satisfied that there is no material to
indicate that petitioner has committed an
offence under Section 420 of the Indian Penal
Code. From the contents of the complaint
petition, it is evident that the petitioner
never intended to cheat the petitioner.
Moreover, from the contents of the complaint
petition itself, it appears that full and
final payment was made by the complainant
even after knowing the fact that it was
difficult for the petitioner to give the said
right to the complainant and M/S Viratnagar
Film was entrusted with the right of
exploitation and exhibition within the
territory of Nepal. The court is of the
opinion that dispute in between the parties
can be termed as a dispute of purely civil in
12
nature, for which the criminal court may not
be allowed to proceed with the case.
9. Accordingly, the order of cognizance dated 29.4.1998 passed in Complaint Case No.382(c) of 1998 by Smt. Sushma Sinha, learned Judicial Magistrate,
Patna is hereby set aside and petition stands
allowed.
( Rakesh Kumar,J.)
PATNA HIGH COURT
Dated 27th October,2010
N.A.F.R./N.H.