Loading...

Sowparnika Arts vs Shenoy Cinemax on 25 June, 2008

Kerala High Court
Sowparnika Arts vs Shenoy Cinemax on 25 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3257 of 2007()


1. SOWPARNIKA ARTS,
                      ...  Petitioner
2. JAYASHANKER M., AGED 39 YEARS,
3. V.M.NOUSHAD, AGED 39 YEARS,
4. A.U.SABUDHEEN, AGED 37 YEARS,

                        Vs



1. SHENOY CINEMAX,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.PHILIP T.VARGHESE

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :25/06/2008

 O R D E R
                         V. RAMKUMAR, J.
                * * * * * * * * * * * * * * * * * *
                    Crl.R.P. No. 3257 of 2007
                * * * * * * * * * * * * * * * * * *
                       Dated: 04-07-2008

                              ORDER

In this Revision filed under Section 397 read with Sec. 401

Cr.P.C. the revision petitioners consisting of a partnership firm

by name Sauparnika Arts and its three partners who were

respectively A1 to A4 in S.T. No. 1769 of 2003 on the file of the

Chief Judicial Magistrate’s Court, Ernakulam, challenge the

conviction entered and the sentence passed against them

concurrently by the Courts below for an offence punishable

under Section 138 of the Negotiable Instruments Act, 1881

(hereinafter referred to as “the N.I. Act” for short). The first

respondent herein namely M/s. Shenoy Cinemax which is also a

partnership firm was the complainant in the above case. The

cheques which were the subject matter of these proceedings

were Exts.P2 and P3 covering a total amount of Rs.

36,00,000/-.

2. I heard Adv. Philip T. Varghese the learned counsel

appearing for the revision petitioners and Adv. Sri. A.V. Thomas,

Crl.R.P. No. 3257 of 2007
-:2:-

the learned counsel appearing for the complainant.

3. Adv. Sri. Philip T. Varghese, the learned counsel

appearing for the revision petitioner made the following

submissions before me in support of the revision:-

The complainant had conveniently omitted to produce

Ext.D1 original agreement dated 21-6-2002 and Ext.D3

supplementary agreement dated 16-5-2003. The non-production

of those agreement by the complainant was willful. Those

agreements will clearly show that there was no necessity for the

accused to issue Exts. P2 and P3 cheques to the complainant.

The Courts below failed to see that the transaction between the

complainant and the accused was solely on the basis of the

terms and conditions stipulated in Ext. D1 agreement and Ext.P3

supplementary agreement. Those agreements will further show

that the case of the complainant that an additional loan of Rs. 20

lakhs was taken by the accused is improbable, if not false. The

courts below overlooked the fact that Exts.P11 to P14 letters

allegedly sent by the accused to the complainant were fabricated

for the purpose of this case after those signed papers and the

Crl.R.P. No. 3257 of 2007
-:3:-

two signed cheques which were entrusted with DW2, (the

financier) were treacherously procured by the complainant. The

courts below have ignored the fact that the complainant has

failed to prove the payment of Rs. 12 lakhs to M/s. Prasad Film

Laboratory , Thiruvananthapuram. The courts below ought to

have found that Exts. D1 to D10 and the testimony of DW1 have

the effect of improbabilising, if not falsifying the case of the

complainant and that the accused had thereby rebutted the

presumptions under Sec. 118 and Sec. 139 of the N.I. Act. The

courts below erred in finding that over and above the liability

under Exts. D1 and D3, the accused had incurred an additional

liability of Rs. 36 lakhs. The courts below failed to see that there

were sufficient circumstances to show that Exts.P2 and P3

cheques were issued as signed blank cheques to the financier

namely M/s. Ashok Investments, Chennai and the complainant

had in collusion with the financier got possession of those

cheques and filed the present case after converting those signed

blank cheques into Exts.P2 and P3 cheques and after concocting

the signed papers given in the letter-head of the accused into

Crl.R.P. No. 3257 of 2007
-:4:-

Ext.P11 to P13 letters. The courts below ought to have found

that the contents of Ext.P15 letter reveals that it is a false

document.

4. I am afraid that I cannot agree with the above

submissions.

5. What has been unravelled by the averments in the

complaint and the oral and documentary evidence adduced in the

case is the following:-

The complainant is a partnership firm by name Shenoy

Cinemax engaged in the distribution and exhibition of films. The

first accused is also a partnership firm by name Souparnika Arts

engaged in the production and distribution of films. Accused Nos.

2 to 4 are the partners of the first accused firm. On 21-6-2002

the complainant and the accused entered into Ext.D1

agreement whereunder the accused agreed to assign the

distribution rights of a Malayalam movie by name “Sadanandante

Samayam” which was being produced by the accused staring

Dileep, Kavya Madhavan and others. The said movie was to be

released in the month of December 2002. The total

Crl.R.P. No. 3257 of 2007
-:5:-

consideration agreed upon for the assignment of the distribution

rights of the above feature film in the State of Kerala was Rs. 95

lakhs out of which Rs. 81 lakhs was to be paid as advance

before the release of the movie and the balance amount of Rs. 14

lakhs was to be paid after the release of the movie to be spent

for the purpose of publicity etc. The 2nd accused examined as

DW1 has admitted that the accused received the advance amount

of Rs. 81 lakhs as provided under Ext.D1 agreement. In the said

agreement the accused had asserted that they are the full and

absolute owners of the distribution rights of the feature film and

that no other party had any right, lien, charge or claim

whatsoever in respect of the said movie. The agreement also

provided that the accused would settle all the claims of the

artists , technicians, outdoor units, labs etc. and would keep the

said picture free from any claims whatsoever. However, the

production of the film got delayed due to reasons attributable to

the accused and release of the movie was re-scheduled on 16-5-

2003. On 10-5-2003 the accused as per Ext.P11 letter

requested the complainant to pay Rs. 16 lakhs i.e. 12 lakhs to

Crl.R.P. No. 3257 of 2007
-:6:-

clear the dues to Prasad Laboratory, Thiruvananthapuram and

Rs. 4 lakhs for post – production works. Although the

complainant had parted with the sum of Rs. 81 lakhs as promised

under Ext.D1 agreement, considering the the assurance given by

the accused that the additional amount of Rs. 16 lakhs would be

paid within one month of the date of the release of the movie,

the complainant paid the further amount of Rs. 16 lakhs by

paying Rs. 4 lakhs by way of cheque on 10-5-2003 directly to the

accused and arranging Rs. 12 lakhs to be paid to Prasad Lab on

16-5-2003 through Kairali Theatres which owed amounts to the

complainant. The said payment was also by means of cheques.

At that time also the accused had assured the complainant that

there was no other charge or lien over the film in favour of any

other person and that the movie could be released without any

impediment. On 13-5-2003 the accused informed the

complainant as per Ext.P12 letter that in April 2003 they had

borrowed money from Ashok Investments, a financier at

Chennai represented by DW2 by pledging the negatives of the

movie and a sum of Rs. 20 lakhs was due to Ashok

Crl.R.P. No. 3257 of 2007
-:7:-

Investments. The accused thus placed the complainant in such a

predicament that without clearing the dues in favour of Ashok

Investments the film could not be released. Left with no option,

the complainant was compelled to pay the additional sum of Rs.

20 lakhs to the financier in the hope of getting the movie

released soon. Ext.D3 supplementary agreement dated 16-5-

2003 was executed between the accused and the complainant

specifically referring to Ext.P12 letter. The Annexure to the said

agreement showed publicity expenses of Rs. 19.5. lakhs. On 16-

5-2003 the accused gave Ext.P13 letter dated 16-5-2003 along

with which Ext.P2 post-dated cheque bearing the date 21-6-

2003 for Rs. 20 lakhs and Ext.P3 post – dated cheque bearing

the date 21-6-2003 for Rs. 16 lakhs, were enclosed. As per

Ext.P14 letter dated 20-5-2003 the accused informed the

complainant with reference to Ext.D3 supplementary agreement

that they are unable to undertake the newspaper publicity

directly and requested the complainant to do the newspaper

advertisement for the film which was being released on 22-5-

2003. In this letter the accused have confessed that they are

Crl.R.P. No. 3257 of 2007
-:8:-

very well aware of the implications which may follow consequent

on their committing breach of agreement . On 22-5-2003 the

film was released. Ext.D5 is a lawyer notice sent on behalf of

the accused to DW2 the proprietor of Ashok Investments stating

that the accused had availed a financial assistance of Rs. 20 lakhs

from DW2 by pledging the negative of the film “Sadanandande

Samayam” in favour of DW2 and at that time certain signed

stamp papers, signed letter-heads, promissory notes, blank

signed cheque leaves etc. had been entrusted with DW2 as

demanded by him, that subsequently the accused had entered

into Ext.P3 supplementary agreement with the complainant

herein who had agreed to settle the entire amount of Rs. 20

lakhs due to DW2 directly and that the complainant herein had

accordingly settled the entire dues. In that lawyer notice, a

demand was made for return of the documents entrusted with

D.W.2 at the time of availing of the loan. On 21-6-2003 the

complainant sent Exts.P2 and P3 cheques for payment to the

drawee bank. As per Exts.P4 and P5 dishonour memos both

dated 24-6-2003 Exts. P2 and P3 cheques were dishonoured by

Crl.R.P. No. 3257 of 2007
-:9:-

the drawee bank. On 25-6-2003 Ext. P6 statutory notice was

issued by the complainant to the accused. In the meanwhile, on

25-6-2003 the accused gave Ext.P15 receipt to D.W.2

acknowledging receipt of the documents which were entrusted

with DW2 while availing of the loan of Rs. 20 lakhs.

Eventhough the 2nd accused examined as DW1 had deposed that

the accused did not receive back the documents entrusted with

the financier, DW2 the financier who was examined as a defence

witness categorically stated that all the documents were returned

to the accused and Ext.P15 is the receipt issued in the

handwriting and under the signature of the accused in that

behalf. Exts.P7 to P9 are the postal acknowledgment cards dated

27-6-2003, 28-6-2003 and 27-6-2003 respectively evidencing

due service of Ext.P6 statutory notice on A2 to A4 respectively

who are the three partners of the first accused firm. Ext.P10 is

the unclaimed returned envelop containing Ext.P6 statutory

notice sent to the first accused firm. The complaint was filed on

8-7-2003 before the Chief Judicial Magistrate, Ernakulam.

5. The defence argument that Exts. P11 to P14 are

Crl.R.P. No. 3257 of 2007
-:10:-

documents which were concocted using the blank signed letter-

heads given by the accused to DW2 while availing of the loan of

Rs. 20 lakhs, cannot be accepted for a moment. Ext.P15 is the

receipt signed by all the three partners of the first accused firm

acknowledging receipt of the documents which were entrusted by

them to DW2 while availing of the loan of Rs. 20 lakhs. If the

accused had received back from DW2 all the documents

entrusted by them with DW2, there is no possibility for the

complainant to have access to those documents nor convert four

of the signed letter-heads into Exts.P11 to P14. It is true that

Exts.P11 to P14 contain the signatures of all the three partners.

But it is pertinent to notice that none among accused Nos. 2 to 4

is a managing partner and that may be the reason why all the

partners have signed in those letters. In Ext.P15 receipt also,

all the three partners have signed. DW2, the financier who was

examined on the side of the accused did not support the defence

versions. On the contrary, he deposed that it was the

complainant who discharged the loan of Rs. 20 lakhs availed by

the accused. The alleged conspiracy or collusion between the

Crl.R.P. No. 3257 of 2007
-:11:-

complainant and DW2 is nothing but a cock and bull story

conceived of by the accused to wriggle out of their liability. The

courts below have carefully evaluated the oral and documentary

evidence in the case to arrive at the conclusion that the accused

have committed the offence as alleged. The conviction recorded

against the revision petitioners/accused does not call for any

interference and is confirmed.

6. What now survives for consideration is the question as

to whether the sentence imposed on the revision petitioners is

sustainable or not . The trial court had imposed a fine of Rs.

10,000/- on the first accused and on default to pay the fine to

suffer simple imprisonment for three months. Accused Nos. 2 to

4 were each sentenced to simple imprisonment for six months

and to pay fine of Rs. 12 lakhs and on default to pay the fine to

undergo simple imprisonment for six months each. The total

fine amount of Rs. 36,00,000/- (Rupees thirty six lakhs only)

imposed on A2 to A4 as and when realised was directed to be

paid to the complainant as compensation under Sec. 357 (1)(b)

Cr.P.C. The lower appellate court modified the sentence deleting

Crl.R.P. No. 3257 of 2007
-:12:-

the default sentence imposed on the first accused. The lower

appellate court also reduced the substantive sentence of

imprisonment awarded to accused Nos. 2 to 4 from six months

to one month. I do not think that penal servitude by way of

incarceration is necessary in a prosecution of this nature.

Accordingly, the sentence imposed on revision petitioners 2 to 4

(A2 to A4) is modified. A2 to A4 shall each pay a fine of Rs. 12

lakhs and on default to pay the fine the defaulting accused shall

undergo simple imprisonment for three months. A2 to A4 are

given four months time from today to pay to the complainant

direct or to deposit the fine amount before the trial court. The

sentence imposed on the first revision petitioner/ first accused is

not interfered with. The first accused is given three months time

to deposit the fine amount before the trial court.

In the result this revision is dismissed confirming the

conviction but modifying the sentence as above

V. Ramkumar, Judge.

ani/

Crl.R.P. No. 3257 of 2007
-:13:-

ani/

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information