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2003 DIGILAW 810 (PAT)

Surendra Kapoor v. Ram Prasad Khemka

2003-08-05

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing of the entire prosecution including the order dated 5.4.1999 passed by the Judicial Magistrate, 1st Class, Bhagalpur in Com- plaint Case No. 166 of 1999 (T.R. No. 1479 of 1999) whereby the learned Magistrate had taken cognizance of the offence under sections 406 and 420 of the Indian Penal Code and directed for issuance of summons against the petitioner. 2. Complainant-Opposite Party no. 1 filed a petition of complaint in the court of Chief Judicial Magistrate, Bhagalpur which was registered as Complaint Case No. 166 of 1999 (Ram Prasad Khemka V/s. Surendra Kapoor). According to the complainant he is engaged in business of film distribution in the name and style of Shree Balaji Art International which is registered under the Bihar Motion Pictures Association. He had alleged that according to the arrangement made earlier, an agreement was entered into on 9.3.1995 for distribution of a film known as "Jalsaaz". In terms of the agreement complainant paid a sum of Rs. 2,75,000/- to the accused-petitioner. Complainant has further alleged that the accused did not carry out the terms of the agreement within the time stipulated and in spite of several registered letters accused did not give satisfactory reply. Left with no option, according to the complainant, he brought an action before the Bihar Motion Pictures Association on 28.7.1997 and although the said association gave notice to the accused several time but he did not appear before it and left with no option, Bihar Motion Pictures Association passed an ex parte order on 20.2.1998 and held the allegation of the complainant to be true and gave its verdict in its favour. Complainant has further averred that on account of non-compliance of the order of the Bihar Motion Pictures Association petitioner had suffered a loss of Rupees five lacs as also the mental agony. 3. On receipt of the aforesaid complaint the Chief Judicial Magistrate by his order dated 26.2.1999 made over the case to another Magistrate under Section 192 of the Code of Criminal Procedure. The learned Magistrate on consideration of the statement of the complainant on solemn affirmation as also the document filed by him prima facie held that offence under sections 406 and 420 of the Indian Penal Code has been made out and accordingly directed for issuance of summons. 4. Mr. The learned Magistrate on consideration of the statement of the complainant on solemn affirmation as also the document filed by him prima facie held that offence under sections 406 and 420 of the Indian Penal Code has been made out and accordingly directed for issuance of summons. 4. Mr. Rajiv Kumar Verma appearing on behalf of the petitioner submits that the allegation made in the petition of complaint, if accepted in its entirety, no offence either under section 406 or under section 420 of the Indian Penal Code is made out and hence the prosecution of the petitioner is an abuse of the process of the Court. He points out that the allegation made against the petitioner is nothing but simple breach of contract. In support of his submission he has placed reliance on large number of authorities. Mr. Farooque Ahmad Khan however appearing on behalf of opposite party no. 1 submits that the complainant may have the remedy of civil action but the allegations made in the petition of com- plaint do constitute an offence, hence it is not a fit case in which the prosecution of the petitioner is fit to be quashed. 5. Having appreciated the rival contention I find force in the submission of Mr. Verma. In sum and substance the allegation in the petition of complaint is that the complainant entered into an agreement with the accused for distribution of the film and in pursuance thereof paid a sum of 2,75,000/- and in spite of notice the accused did not comply with the term of agreement. Further the order passed by the Bihar Motion Pictures Association is not being carried out by the accused person which had put the complainant to the loss of Rupees five lacs as also caused mental agony. There is nothing in the com- plaint to show that the petitioner had dishonest or fraudulent intention at the time the complainant parted with the money nor did the complaint indicates that the accused had induced him to pay the amount. The mere fact that the accused did not fulfil the terms of agreement, no criminal liability can be fastened. Accordingly I am of the opinion that the allegation made in the petition of complaint, even if accepted in its entirety no offence either under section 420 or under section 406 of the Indian Penal Code is made out. The mere fact that the accused did not fulfil the terms of agreement, no criminal liability can be fastened. Accordingly I am of the opinion that the allegation made in the petition of complaint, even if accepted in its entirety no offence either under section 420 or under section 406 of the Indian Penal Code is made out. Reference in this connection can be made to a decision of this Court in the case of Ram Prakash Mathr alias Ladlay Mathur V/s. State of Bihar and anr. [( 1998 (2) PLJR 288 )] in which in paragraph no. 7 it has been held as follows: "In the facts and circumstances of this case, therefore, I am of the opinion that no case has been made out either under section 420 or under section 406 of the Indian Penal Code. Even assuming, prima facie, that all the allegations in the complaint are accepted to be true, they merely amount to breach of contract and cannot give rise to criminal prosecution. There is nothing in the complaint to show that the petitioner had dishonest or fraudulent intention at the time the complainant parted with the money nor did the complainant indicate that the petitioner had inducted him to pay the amount parted with him. The mere fact that the accused persons did not abide by their commitment as to supply of the print of the film, criminal liability cannot be fastened. It is settled by the several decisions of this Court as well as the apex Court that, when it would appear from the complaint petition that there was a concluded contract and there was no dishonest or fraudulent intention of the accused persons, it would be a case of breach of the contract trust in case the terms of the contract are not complied with. In this connection reference may be made to the case of Hari Prasad Chamaria V/s. Bishun Kumar Surekha and others ( AIR 1974 SC 301 ). 6. In the result, application is allowed. Prosecution of the petitioner in Complaint Case No. 166 of 1999 (T.R.No. 1479 of 1999) including the order dated 5.4.1999 passed by the Judicial Magistrate, 1st Class, Bhagalpur are quashed.