Sunil Kumar Boobna v. State of Bihar — 1998 DIGILAW 249 (PAT)

JUDGMENT S.K. Chattopadhyaya, J. - Heard Mr. Navin, Kumar Sinha, learned counsel appearing on behalf of the petitioners and Mr. Anil Kumar Sinha, learned Sr. counsel appearing on behalf of the opposite party no. 2. 2. The order taking cognizance dated 21.9.96 under Sections 420, 468 and 120B IPC including the entire criminal proceedings have been challenged by the petitioners by invoking the jurisdiction of the High Court under Section 482 Cr. PC. 3. Before adverting to the submissions made on behalf of the parties, factual backdrops of the case may be noticed. The contesting opposite party fifed a complaint on 1.8.96 before the CJM, Giridih giving rise to Complaint Case No./T.R. No. 573/96/1387/96 alleging, inter alia, that he is an associated member of Bihar Motion Pictures Association (hereinafter referred to as 'BIMPA') being related to Cinema business. For exhibition of the film 'Parampara' in his picture hall namely, Moti Picture Palace situated at Giridih, he entered into an agreement with accused nos. 1 and 2 and paid a sum of Rs. 1,00,000/- on 15.4.93 as advance. They were required to return the remaining amount after settling the accounts within ten days and other terms and conditions and the rules were to be followed. After exhibition of the said film, calculation was made and according to the terms of the agreement accused-petitioner nos. 1 and 2 were required to return Rs. 78,000/- within the time framed but when the same was not returned, the complainant on 16.7.93 requested the aforesaid accused persons to return the same amount in terms of the rules of BIMPA. However, when his demand was not fulfilled he approached BIMPA by raising a dispute. Hr claimed the principal amount as well as interest @ 24% per annum. The dispute was settled by the Disputes Settlement Board (C) (hereinafter referred to as the ‘Board') on 8.12.94. The complainant has further alleged that though the Board allowed his claim by directing to pay the principal amount with interest @ 24% per annum including the cost of litigation but some body of the office of BIMPA scored of the amount of interest @ 24% per annum. An appeal was preferred by him and on 29.8.95 the Executive Committee decided the same in his favour directing the accused to pay the principal amount with interest @ 24% per annum including the cost. An appeal was preferred by him and on 29.8.95 the Executive Committee decided the same in his favour directing the accused to pay the principal amount with interest @ 24% per annum including the cost. However, the complainant has further alleged that the accused 1 and 2 in connivance with accused no. 3 sent the order by registered post, which shows that the appeal was dismissed. According to the complainant, the President and members of the Executive Committee were informed about the conspiracy. As the order of the Board dated 29.8.95 was sent to him on 1.9.95, it was received by the complainant on 5.9.95. He alleged that the accused no. 3, in connivance with accused nos. 1 and, 2, sent the order under his signature showing that the interest @ 24% per annum was not allowed and appeal of the complainant was dismissed by the Board. He asserted that when the accused moved the Board with a prayer to allow them to pay the amount on instalments, without hearing the complainant, the Board allowed the said prayer in utter violation of the rules of BIMPA. It is stated that inspite of the said order of the Board the entire amount has not been paid by the accused and thus, has committed an offence for not complying with the rules of BIMPA. On this, complaint being filed and the learned Magistrate after examining the complainant and his witnesses on oath, took cognizance of the offence as stated above. It is pertinent to mention here that though "the complainant has referred to some orders of the Board and that of the Executive Committee, but copies of the same have not" been annexed with the complaint petition. 4. Learned counsel for the petitioners has challenged the jurisdiction of the Magistrate in entertaining the complaint petition by submitting that when entire cause of action, according to the complainant himself, arose at Patna, the court at Giridih had no jurisdiction to entertain the complaint petition. Countering this argument, it is contended on behalf of the opposite party no. 2 that when the money was paid at Giridih, part of action did arise there and as such, the court at Giridih was competent to take cognizance. Second contention of Mr. Countering this argument, it is contended on behalf of the opposite party no. 2 that when the money was paid at Giridih, part of action did arise there and as such, the court at Giridih was competent to take cognizance. Second contention of Mr. Navin Kumar Sinha is that the allegations made in the complaint petition do not constitute any offence inasmuch as even assuming that the Board passed an order in favour of the complainant in regard to principal amount and cost but no order was passed to pay the interest @ 24% per annum. Admittedly, the counsel continues, the complainant moved the President and the Executive Committee in appeal but the same was dismissed. Moreover, on being moved by the petitioner nos. 1 and 2 the Board allowed them to pay the awarded amount on instalments. Under these circumstances, it cannot be said that there was any criminal intention of the petitioner nos. 1 and 2 to cheat the complainant. To this argument, Mr. Anil Kumar Sinha has contended that the intention of cheating was there at the very beginning when the petitioner nos. 1 and 2 entered into an agreement with the opposite party no. 2. He submits that even when the Executive Committee allowed the prayer of the contesting petitioners to pay the prinicipal amount and the cost by instalments, the entire amount was not paid, which shows the conduct of the petitioner nos. 1 and 2. According to him, BIMPA not being a statutory body, its decision cannot be binding either on the complainant or the petitioner nos. 1 and 2. In his complaint the opposite party no. 2 has admitted that there is an Association of film distributors which is known as 'Bihar Motion Pictures Association and it has its own rules which binds even the associate members like the complainant. 5. Chapter VI of the rules deals with procedure for arbitration, which is exhaustive one. Rule 36 says, after hearing the parties, the Court of Arbitration shall make and sign an Award either at the same meeting or postpone the same to some other date as may be decided by the Court of Arbitration. Rule 42 mandates that the Award made by a Court of Arbitration and notified to the parties shall be final and binding on the parties to the reference. Rule 42 mandates that the Award made by a Court of Arbitration and notified to the parties shall be final and binding on the parties to the reference. Chapter VII deals with appeal against such order and Chapter VIII deals with for preferring a revision. The procedure for implementation of the Award has been dealt with in Chapter IX and Rule 58 gives a right to the awardee to apply to the Association for implementation of the Award by the Executive Committee if Judgment debtor fails to comply with the award within the given time and after expiry of the period prescribed for appeal. Rule 59 reads thus : - "On receipt of such an application or suo moto, the Committee or the Secretary, if so empowered in that behalf, shall finally notify the Judgment Debtor to comply with the award within the given time. In the event of default in compliance, the Judgment Debtor's membership will be suspended to protect and safeguard the interest of members in general and to inculcate in the member in particular a sense of discipline. On suspension of his membership, his Unit or Branch shall automatically stand suspended and the members shall strictly observe the provisions of self Regulation, as laid down in the Article of the Association, respect of the membership under suspension. The fact of suspension of his membership shall be notified to the Judgment Debtor under Registered Post A/D and be also circulated to all other members of the Association." 6. Rule 69, inter alia, provides that the Executive Committee may make Awards in appeal, grant extension of Awards, grant instalments to liquidate Awards in appropriate cases, vary quantum of liquidated damages in Awards, remand any reference or appeal for giving fresh opportunity to the parties by notice in writing for rehearing and decision as per Rules, determine contravention amounts and penalties and also take steps to enforce the decisions against defaulters by giving opportunity of hearing. 7. In the background of the aforesaid rules framed by BIMPA of which admittedly the opposite party no. 2 is also an associate member he is entitled to get the implementation of the Award passed by the Executive Committee. The Judgment Debtor will face with some consequences as laid down in Rule 59. In the instant case, there is no denial of the fact that when the petitioner nos. 2 is also an associate member he is entitled to get the implementation of the Award passed by the Executive Committee. The Judgment Debtor will face with some consequences as laid down in Rule 59. In the instant case, there is no denial of the fact that when the petitioner nos. 1 and 2 did not pay the alleged amount, the complainant moved the Board for an arbitration. Though he has asserted that the Board allowed interest @ 24% per annum but that part of the order was scored of by some one of BIMPA. He has not specifically named the persons who had alleged to have scored of the same. The complainant moved in appeal, probably, against this part of the order before the Executive Committee and his appeal was dismissed, meaning thereby that his prayer for interest was not allowed even by the appellate forum. The complainant though has stated about the order of the Board and Executive Committee but surprisingly has not annexed any of the orders with his complaint petition. It cannot be disputed that the opposite party no. 2 without availing the procedure laid down in the rules for implementation of the award, tiled this criminal case against the petitioners. The learned Magistrate has found that the petitioners nos. 1 and 2 laving paid the principal amount to the complainant before initiating the criminal case, no case is made out under Section 406 of the Penal Code. However, the learned Magistrate has found that these two petitioners having not paid the amount of interest as well as cost, they have mis-appropriated the same and for doing this, they have connived with the accused no. 3, Sri D.K. Chakravorty. On this finding cognizance under Sections 420, 468 and 120B has been taken and summons were issued. 8. It is well settled that for the purpose of quashing the complaint, it is necessary to consider whether the allegations in the complainant, prima facie, make out an offence or not. Similarly for quashing the complaint by way of action at the threshhold, it is necessary to consider whether on the face of the allegation a criminal offence is constituted or not. A particular act may constitute both civil wrong as well as criminal wrong and merely, because a civil action is also pursued, it does not render the criminal action impermissible. A particular act may constitute both civil wrong as well as criminal wrong and merely, because a civil action is also pursued, it does not render the criminal action impermissible. Thus, the facts and circumstances of a particular case is to be considered before quashing the complaint or FIR. 9. In this case, the learned court below has come to a conclusion. that the principal amount was paid by the contesting petitioners before initiation of the criminal proceeding. The complainant himself has admitted that the Board did not allow his prayer of interest @ 24% per annum against which he preferred an appeal and that too was dismissed. Under these circumstances the complainant it was of the view that the appellate forum i.e. the Executive Committee illegally disc missed his appeal, he should have moved in revision as provided under the rules. This step was not taken by the complainant and, it appears, to redress his grievances has initiated a proceeding against the petitioners alleging cheating and fabrication of documents. In my considered opinion, from the facts alleged, no case of cheating is made out inasmuch as in terms of the agreement before supplying the film 'Parampara' the complainant himself agreed to pay a sum of Rs. 1,00,000/- as advance with a condition that after exhibition of the film calculation would be made and rest amount would be returned by the firm distributor to the complainant. Thus, it is clear that when agreement was made, there was no question of any criminal intention of cheating on the part of the petitioner nos. 1 and 2 otherwise, on receiving the said advance amount the film 'Parampara' would not have been supplied to the complainant for exhibition. Only dispute was with regard to settlement of amount on calculation for which complainant moved the Board seeking arbitration of the dispute. Therefore, I am of the view that the learned Magistrate has failed to appreciate the facts and circumstances which in law does not constitute any offence of cheating. It is admitted that substantial amount has been paid to the complainant and prayer for interest made by the opposite party was disallowed by the appellate forum. In this back ground, the learned Magistrate has erred in law in holding that a case has been made out under Section 420 and other sections as mentioned in the impugned order. 10. It is admitted that substantial amount has been paid to the complainant and prayer for interest made by the opposite party was disallowed by the appellate forum. In this back ground, the learned Magistrate has erred in law in holding that a case has been made out under Section 420 and other sections as mentioned in the impugned order. 10. In the case of Radhey Shyam Khemka vs. State of Bihar, reported in 1993(3) SCC 54 , their lordships while differentiating between the offence Under the Penal Code and acts and omissions, which have been made punishable under the different Acts and Statutes, has observed that for prosecution for offences under the Penal Code the complainant has to make out a prima facie case against the individuals concerned regarding their acts and omissions which constitute the different ingredients of the offences under the Penal Code. In the instant case the complainant has not specifically alleged against a particular accused as to how he was responsible for specific acts and omissions which constitute the offence under Section 420, 468 and 120B. 11. The power of the High Court under Articles 226 and 227 of the Constitution as well as Section 482 of the Code in exercising its power of judicial review in the criminal matter, the latest view of the Supreme Court in the case of M/s Pepsi Foods Ltd. vs. Special Judicial Magistrate, reported in AIR 1998 SC 128, may be usefully noted. Detailing the scope of jurisdiction of the High Court under the aforesaid provisions their' Lordships have observed as follows :- "Summoning of an accused in a criminal case is a serious matter Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to supports his allegation in the complnaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied mind to the facts of the case and the law applicable there to. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." Thus, observing aforesaid, their Lordships continued to hold that no doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. 12. Having considered the facts and circumstances of the case and the observation of the Supreme Court, I am of the view that this application must be allowed by quashing the order taking cognizance as well as the entire proceeding. 13. In the result, this application is allowed and the order taking cognizance dated 21.9.96 is quashed and consequently the proceeding is also quashed.