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2005 DIGILAW 779 (PAT)

Sanjay Suchanti v. State Of Bihar

2005-08-30

M.L.VISA

body2005
Judgment 1. Petitioners have filed this application for quashing order dated 18.2.2002 (Annexure-4) passed by Shri A.N. Upadhyay, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 1970C of 2001 taking cognizance under Section 420 of Indian Penal Code (In short "IPC"). 2. Brief facts of the case are that opposite party No. 2 filed a complaint petition in the Court of Chief Judicial Magistrate, Patna alleging therein that he is a proprietor of a firm carrying on business, known as M/s Elphinstone Palace, Patna, of exhibition of films and co-accused Sushil Jain is one of the Directors of a Company named M/s Anjana Movies (Private) Limited carrying on the business of distribution of motion pictures and this Company is duly incorporated Company under the Companies Act, 1956 and petitioners who are Directors of Anjana Movies (Private) Limited, co-accused Sushil Jain and M/s Anjana Movies (Private) Limited are members of Bihar Motion Pictures Association which is aiso a duly incorporated company and association of motion picture producer, distributors and exhibiters carrying their business in the film trade in the territory of Bihar and Nepal. Further case of opposite party No. 2 was that co-accused Sushil Jain claimed that he was assigned the distribution right of the picture named "Aashique" for the territory of Bihar and Nepal and he approached opposite party No, 2 and requested him to exhibit his picture which was to be released on 26.1.2001 in the cinema hall of opposite party No. 2 and demanded a sum of Rs. 2,00,000/- in advance on the ground that he was in need of money for sending it to producer before release of picture and opposite party No. 2 accepted the proposal of co-accused Sushil Jain and paid him a sum of Rs. 2,00,000/-. Thereafter, in the month of January, 2001, opposite party No. 2 got information that distribution, exhibition and exploitation right of picture "Aashique" were not with petitioners and he then contacted co-accused Sushil Jain to refund his advanced money of Rs. 2,00,000/- and in this regard, he also wrote a letter to co-accused Sushil Jain on 5.1.2001 but he did not receive any reply. 2,00,000/- and in this regard, he also wrote a letter to co-accused Sushil Jain on 5.1.2001 but he did not receive any reply. After that, the aforesaid picture was released on 26.2.2001 and opposite party No. 2 was mentally shocked to know that the right of picture was not with the petitioners and he made several requests to petitioners to return the advanced amount given by him but neither the petitioners gave any reply nor they returned the amount. Opposite party No. 2 then filed complaint petition alleging therein that he was cheated by petitioners. The petition of opposite party No. 2 was registered as Complaint Case No. 1970 C of 2001 and after enquiry under Section 202 of Criminal Procedure Code (In short "CrPC"), cognizance against the present petitioners and some others was taken under Section 420 of IPC. 3. The case of petitioners is that the facts alleged in the complaint petition of opposite party No. 2 at best make out a Civil dispute in respect of money alleged to have been advanced by opposite party No. 2 to the company of petitioners and no criminal case is maintainable and petitioners have been falsely implicated in the complaint case on false, baseless and concocted evidence. According to them, M/s Shweta International, producer of film "Aashique" assigned the distribution right to M/s Anjana Movies (Private) Limited for a total consideration of Rs. 75,00,000/- and an agreement was arrived on 10.7.1999 between the parties which was provisional agreement subject to final agreement (Annexure-5). According to them, M/s Shweta International, producer of film "Aashique" assigned the distribution right to M/s Anjana Movies (Private) Limited for a total consideration of Rs. 75,00,000/- and an agreement was arrived on 10.7.1999 between the parties which was provisional agreement subject to final agreement (Annexure-5). Pursuant to this agreement, the company of petitioners informed Bihar Motion Pictures Association on 14.9.2000 regarding acquisition of distribution of film "Aashique" (Annexure-6) and company of petitioners advanced a sum of Rs.1,00,000/- by demand draft payable at Mumbai (Annexures-7 and 8 respectively) but subsequently the producer realised more amount from a third party distributor M/s Mona Movies and gave the distribution right to the third party and no final agreement with the company of petitioners for the distribution right of picture "Aashique" was prepared and company of petitioners was forced to file an emergency case against the producer and perspective distributors with a prayer to stop the registration of the distribution right to other distributor and to stop the release of film "Aashique" in which interim award was passed and notice of interim award was received forthwith on .20.1.2001 (Arinexure-9) and company of petitioners by abundant precaution also filed Title Suit No. 18 of 2001 against the producer and perspective distributor in the Court of Subordinate Judge, Patna. Opposite party No. 2 filed its money claim before Bihar Motion Pictures Association which was decided ex parte on 12.2.2001 as neither the petitioners nor any person representing their company appeared (Annexure-10). The company of petitioners got the plaint amended by which additional Court fee of Rs. 17,396/- in the suit for the purpose of getting the money decree on the amount which was paid to producer in pursuance of Annexure-5 (Annexure-11) and the suit was finally disposed of by a compromise on 21.7.2003 and thereby dispute regarding distribution right terminated and it shows that there was no occasion to cheat opposite party No. 2 who had already approached proper forum and had obtained proper relief and he is debarred from filing any case in a Court of law in view of arbitration clause of Bihar Motion Pictures Association and arbitration award passed in this behalf which is final and conclusive and opposite party No. 2 has realised more than 75% amount of award. According to petitioners, no prima facie case is made out in the complaint petition so far offence under Section 420 of IPC is concerned and they have been implicated in a false and concocted case. Petitioners have prayed for quashing the impugned order and entire prosecution of petitioners emanating from complaint petition. 4. Notice to opposite party No. 2 was issued which was served on opposite party No. 2 who filed a vakalatnama which is on the record but at the time of hearing, no body appeared on behalf of opposite party No. 2. 5. The case of petitioners is that opposite party No. 2 approached Bihar Motion Pictures Association for non-fulfilment of alleged contractual obligation as alleged by him in his complaint petition and an award was passed which was put in execution and a sum of more than 1.50 lacs has already been realised by him and Bihar Motion Pictures Association is an arbitration body whose award is final, conclusive and binding to parties and no party can approach the civil or criminal court for the same matter. In Annexure-1 which is copy of complaint petition, opposite party No. 2 has not stated that he approached Bihar Motion Pictures Association although in para-3 of complaint petition, as stated above, he has stated that he, petitioners and other co-accused persons are members of Bihar Motion Pictures Association carrying their business in the film trade in the territory of Bihar and Nepal and Annexure-4 which is the impugned order shows that on the day when cognizance against the petitioners was taken, opposite party No. 2 filed photo copies of letter, agreement, receipt of draft alongwith copy of award of Board of Arbitrators, Bihar Motion Pictures Association. During the course of argument, learned counsel of petitioners has produced paper showing that opposite party No. 2 has received the amount of award except interest given by Bihar Motion Pictures Association. The case of petitioners is that petitioner No. 2 was never a Director of M/s Anjana Movies Private Limited and petitioner No. 1 resigned as Director of the Company with effect from 27.3.2001 that is much prior to filing of complaint petition on 6.12.2001 and in this view of matter, petitioners cannot be prosecuted in any criminal case in respect of business transaction of company. In the complaint petition also, the complainant has made allegation against co-accused Sushil Jain by stating that it was he alone who approached him on 26.1.2001 and made request to exhibit picture "Aashique" in his cinema hall and took a sum of Rs. 2,00,000/- as advance. Opposite party No. 2 has further stated that when he came to know that distribution right was not with the accused persons, he contacted Sushil Jain for refund of money and wrote a letter to him. About petitioners, there is no allegation in the entire complaint petition except that in the column where names and address, of accused persons are mentioned, both the petitioners have been shown Directors of M/s Anjana Movies (Private) Limited. During enquiry, the evidence of witnesses recorded under Section 202 of CrPC show that witnesses examined on behalf of opposite party No. 2 were employees of opposite party No. 2 and they ail have said that all the accused persons approached opposite party No. 2 submitting that they had the distribution right of "Aashique" picture and they received a sum of Rs. 2,00,000/- from opposite party No. 2. This is against me case of opposite party No. 2 as made out in the complaint petition in which the aforesaid allegation is against co-accused Sushil Jain. There is nothing on the record to show that petitioners.were Directors of the Company but then petitioners have admitted that petitioner No. 1 was Director of M/s Anjana Movies (Private) Limited before 26.3.2001 and he resigned as Director with effect from 27.3.2001 that is much prior to the filing of the complaint case although the complainant has not given the exact date on which money was given by him to petitioners. For the sake of argument if it be assumed that co-accused Sushil Jain who approached opposite party No. 2 and took a sum of Rs. 2,00,000/ from opposite party No. 2 on the assurance that his company had distribution right of "Aashique" which will be given to opposite party No. 2 for exhibition in his cinema hall acted on behalf of Anjana Movies (Private) Limited even then the facts stated in complaint petition do not show that at the time of receiving money from opposite party No. 2 he had any fraudulent or dishonest intention. Opposite party No. 2 himself has admitted that M/s Anjana Movies (Private) Limited is a duly incorporated company under the Companies Act and co-accused Sushil Jain was its Director and the aforesaid company was carrying on business of the distribution of motion pictures and was the Member of Bihar Motion Pictures Association. The witnesses examined on behalf of opposite party No. 2 under Section 202 of Cr PC have also in their evidence admitted that petitioners and M/s Anjana Movies Private Limited is engaged in the business of distribution of films. If co-accused Sushil Jain made a promise for the exhibition of film "Aashique" in the cinema hall of opposite party No. 2 a mere failure to keep up this promise subsequently itself will not be a ground to infer that he had any intention to cheat opposite party No. 2 at the time when he made promise and received an advanced amount. It is true that the explanation for not keeping up promise made by Sushil Jain for not giving the picture "Aashique" to opposite party No. 2 for its exhibition in his cinema hall has now been offered by petitioners that the distributor first made agreement with the company of petitioners for giving distribution right in Bihar and Nepal but subsequently gave the distribution right to a third party who offered more money is a defence which was not available to the Court below which has taken cognizance against the petitioners and M/s Anjana Movies (Private) Limited and co-accused Sushil Jain but then there may be a number of reasons for failure to keep up promise subsequently and the Court taking cognizance has to consider this aspect and it can take cognizance under Section 420 of IPC only when it is satisfied prima facie that at the time of making promise and receiving benefit, there was fraudulent intention of an accused to cheat the person before whom the promise was made and from whom some benefit was taken. There is nothing in the complaint petition that co-accused Sushil Jain was not engaged in the work of distribution of films and he made a false promise that he was distributor and he had distribution right of "Aashique" picture and by this inducement, he obtained money from opposite party No. 2. There is nothing in the complaint petition that co-accused Sushil Jain was not engaged in the work of distribution of films and he made a false promise that he was distributor and he had distribution right of "Aashique" picture and by this inducement, he obtained money from opposite party No. 2. If opposite party No. 2 found that there was a failure of contract, he could have sought his redress for damages in a civil court which he did by putting his claim before Bihar Motion Pictures Association. The Apex Court in the case of Ajay Mitra vs. State of M.P. and Ors., (2003)3 Supreme Court Cases 11 has held as follows: "A guilty intention is an essential ingredient of the offence of cheating. In other words "mens rea" on the part of the accused must be established before he could be convicted of an offence of cheating. (See Jaswantrai Manilal Akhaney vs. State of Bombay.) In Mahadeo Prasad vs. State of W.B. It was held as follows (AIR paras 4 and 5) Where the charge against the accused is under Section 420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established. In Hari Prasad Chamaria vs. Bishun Kumar Surekha it was held that unless the complaint showed that the accused had dishonest or fraudulent intention at the time the complainant parted with the money, it would not amount to an offence under Section 420 IPC and it may only amount to breach of contract. In G.V. Rao vs. L.H.V. Prasad it was reiterated that guilty intention is an essential ingredient of the offence of cheating and, therefore, to secure conviction "mens rea" on the part of the accused must be established. In G.V. Rao vs. L.H.V. Prasad it was reiterated that guilty intention is an essential ingredient of the offence of cheating and, therefore, to secure conviction "mens rea" on the part of the accused must be established. It has been further held that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered." 6. In the present case, I find that the facts disclosed in complaint petition do not make out a case that at the time when coaccused Sushil Jain approached opposite party No. 2 with a request to exhibit film "Aashique" in his cinema hall, he had any intention to cheat opposite party No. 2. The only allegation in complaint petition is that at that time co-accused Sushil Jain told that distribution right of picture "Aashique" was with his company but subsequently opposite party No. 2 found that the distribution right of the said picture had been acquired by another distributor. This itself does not mean that co-accused Sushil Jain had made any false representation at the time when he approached opposite party No. 2. The facts disclosed in complaint petition simply shows that co-accused Sushil Jain subsequently could not fuifi! his promise which he made before opposite party No. 2 to exhibit film "Aashique" in the cinema hall of opposite party No. 2, but as stated above, it cannot be a ground by which alone it can be inferred that co-accused Sushil Jain had any intention to cheat opposite party No. 2. 7. In the result, this application is allowed and the order dated 18.2.2002 passed by Shri A.N. Upadhyay, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 1970C of 2001 taking cognizance against the petitioners under Sections 420 of IPC and prosecution of petitioners emanating from complaint petition of opposite party No. 2 are hereby quashed.