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2001 DIGILAW 431 (PAT)

Pradeep Sharma @ Tutu Sharma v. State Of Bihar

2001-05-15

P.K.DEB

body2001
Judgment P.K.Deb, J. 1. This application is under Section 482 of the Code of Criminal Procedure for quashing the entire prosecution of the petitioner in relation to the Complaint Case No. 1437/98, now pending before the Judicial Magistrate 1st Class, Muzaffarpur. Prayer has also been made for quashing the order dated 17.12.1998 whereby cognizance has been taken against the petitioner under Sections 418/406 of the Indian Penal Code. 2. Opposite party No. 2, Baidyanath Jha, happens to be the Manager of M/s. Nirmala Pictures having its headquarters at Muzaffarpur and Patna carrying in business of distribution of films for Bihar and Nepal. Opposite Party No. 2 has entered into an agreement with M/s. Ramdeoji Art International whose partners are accused No. 1, Narendra Kumar Anchalia and accused No. 2, Kanhaiya Lal Anchalia having their headquarters in Calcutta, who were also engaged in film distribution. In the distribution of film "Gharwali Baharwali which was being produced by the petitioner, Pradeep Sharma the offer was made by the partners of M/s. Ramdeoji Art International which was accepted by the complainant and on their request handed over a demand draft of Rs. 2,51,000/-to the Anchalias (Accused Nos. 1 and 2) in favour of the petitioner. A written agreement was also entered into by which the complainant was given the right of distribution, exhibition and exploitation of the said film "Gharwali Baharwali" for the northern Bihar area. It is further asserted that the amount of advance to the tune of Rs. 2,51,000/- had been encashed in the account of the petitioner but then fraudulently and mischievously, the agreement with the complainant was frustrated and distribution right of the said film was given to M/s. Anjana Movies Private Ltd. and by that it is alleged that all the accused persons including the petitioner had committed the offence under Sections 406, 409, 420/120-B of the Indian Penal Code. On perusal of the complaint and after enquiry made under Section 202 of the Code of Criminal Procedure vide the order dated 17.12.1998 cognizance has been taken under Sections 418/406 of the Indian Penal Code against the accused persons including the petitioner and processes had been issued. 3. On perusal of the complaint and after enquiry made under Section 202 of the Code of Criminal Procedure vide the order dated 17.12.1998 cognizance has been taken under Sections 418/406 of the Indian Penal Code against the accused persons including the petitioner and processes had been issued. 3. Challenging the criminal prosecution against the petitioner it has been submitted that for breach of contract or agreement thereof, there can be no criminal liability and civil liability might be there for which the complainant had already moved the Civil Court being Title Suit No. 112/98. Besides the petitioner and the Anchalias, M/s. Anjana Movies had also been made party in that suit together with Bihar Motion Pictures Association and when in that suit the complainant failed to have an injunction, the present criminal prosecution has been filed and it is submitted that in such circumstances the cognizance taken in the criminal case is totally bad in the eye of law. On the other hand it is submitted for and on behalf of the complainant-opposite party that only because a civil suit had been filed the criminal liability cannot be taken away and civil suit has been filed in different context. Here criminal case is with respect to cheating and defalcation/embezzlement of the money entrusted to the petitioner and other accused persons. 4. I have gone through the materials on record and also the injunction order passed and the complaint filed in the above mentioned Title Suit. Such Suit was filed for debarring M/s. Anjana Movies to distribute, exhibit and exploit the film "Gharwali Baharwali". Injunction was rejected mainly on the ground that already an agreement with Anjana Movies had been registered with the Bihar Motion Pictures Association and they had allowed Anjana Movies for distribution of the film in question. Nowhere in that Suit there was any prayer for realisation of the amount as deposited by the complainant with the petitioner through Accused Nos. 1 and 2, namely, the Anchalias. But here in the complaint case the allegation is that with the very purpose of cheating and ulterior motive the agreement was arrived at between the complainant and the Accused Nos. 1 and 2, namely, the Anchalias. But here in the complaint case the allegation is that with the very purpose of cheating and ulterior motive the agreement was arrived at between the complainant and the Accused Nos. 1 and 2, monetary benefit of which had gone in favour of the petitioner had been flouted by getting more money from Anjana Movies and re-distribution right has been given to other and the money taken from the complainant had neither been returned by taking a plea that the said money as deposited was being adjusted towards other contract agreements regarding distribution of other films. 5. Mr. Shashi, appearing for and on behalf of the petitioner referred to a decision of the Apex Court as reported in (2000) 3 SCC 269 : 2000 (2) East Cr C 524 (SC) (Medchi Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. and others,) and submitted that even if the whole of the allegations as made in the complaint are taken in its entirety then it may not disclose the ingredients of the offences alleged and then the complainant should not be allowed to proceed with the criminal case when the factual situation is of civil profile. On the other hand the counsel appearing for and on behalf of the Opposite Party No. 2 by referring to the decisions of the Apex Court as reported in (1999) 3 SCC 259 : 1999 (1) East Cr C 950 (SC) (Rajesh Bajaj v. State of Delhi and others,) and (2000) 2 SCC 636 : 2000 (1) East Cr C 330 (SC) (G. Sagar Suri and another v. State of Uttar Pradesh and others,) submitted that High Courts power of quashing the criminal proceedings should always be very sparingly used. The High Court should be very cautious unless it is satisfied that the whose process is in the abuse of the process of the Court, it should not interfere with the criminal prosecution. The last case relates to commercial transactions. Even in commercial transactions also if prima facie it appears that there may be a criminal outfit then the High Court should not interfere in proceedings with criminal prosecution. By taking ratio of all the judgments, as mentioned above, the principle emerged show that on the same incident there may be both criminal and civil liability. Even in commercial transactions also if prima facie it appears that there may be a criminal outfit then the High Court should not interfere in proceedings with criminal prosecution. By taking ratio of all the judgments, as mentioned above, the principle emerged show that on the same incident there may be both criminal and civil liability. Even when there is a civil liability, criminality may not be totally outlogged but for criminal outfit it must be shown prima facie that the whole transaction of the incident happened with a prior ulterior criminal intention either to defraud or to embezzle or to cheat. In the present case it is true that the present complaint has been filed after the complainant failed to get an injunction in his favour debarring the Anjana Movies for distribution of the film "Gharwali Baharwali" in the north Bihar area. The agreement was arrived at with the complainant by the Anchalias alone and definitely the breach of contract goes directly against them but then the petitioner is the beneficiary person out of the outcome of the said agreement and it cannot be said that he is immuned from the liability and there must have been some connivance also with him when the agreement has been arrived at and then the same has been flouted by giving distribution right to another. Such sort of bungling can never be encouraged, although such bunglings are very much there in the Film Industry as such sort of cases come again and again before the Courts. On the face of the records I find that at this stage it cannot be said that the criminal case filed by the complainant is totally an improbable one suffering from absurdity. The receipt of money by the petitioner as sent by draft from the complainant has not been denied but only plea is that some money is in respect of other contracts which can only be thrashed out if the defence case is put up before the Court below at its appropriate stage. In the facts and circumstances of the case I do not find that any special case has been made out by the petitioner for interference by this Court in holding that the criminal proceedings between the parties is an abuse of the process of Court. Thus this petition is rejected having no force.