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2006 DIGILAW 637 (CAL)

Dilip Chand Kankaria v. STATE OF WEST BENGAL

2006-09-25

SADHAN KUMAR GUPTA

body2006
Judgment :- Sadhan Kumar Gupta, J. This revisional application has been preferred by the petitioner under section 401 read with section 482 of the Cr. PC against the judgment and order dated 27.11.2003 passed by the ld. 3rd Bench, City Sessions Court, Calcutta in Criminal Appeal No. 90 of 2002, thereby confirming the order of conviction, as passed by the ld. Metropolitan Magistrate, 17th Court, in G.R. case No. 1214 of 1992. 2. Case of the petitioner is that the said G.R. case was started on the basis of a written complaint filed by the opposite party No. 2 against the petitioner and others. The petitioner was, at the material time, the Managing Director of M/s. Exhibitors Syndicate Ltd. which was engaged in the business of film distribution. For the purpose of distribution of the Hindi feature film `Mast Kalandar, the opposite party No. 2 was induced to purchase the distribution right of the said film by the petitioner. As a result of that there was an agreement of 05.10.1991 in between the petitioners company and the opposite party No. 2 and it was settled therein that the distribution right of the said film would be given in favour of the opposite party No. 2 for a sum of Rs. 5,10,000/-. The said agreement was in writing between M/s. Bini Enterprises and M/s. Exhibitors Syndicate, the petitioner and the opposite party No. 2 being the representatives of the said two companies. Pursuant to the said agreement, the opposite party No. 2 paid Rs. 1 lakh by way of bank draft to the petitioner. In the said agreement it was recorded that if the Bini Enterprises failed to make the balance payment, then the Exhibitors Syndicate, for which the petitioner was the Managing Director, was entitled to release the film on account of Bini Enterprise through themselves or through their agents on 11th October, 1991. It was agreed between the parties that the petitioners company would deliver 10 prints of the said film in total at the time of its release in different cinema houses. 3. It was agreed between the parties that the petitioners company would deliver 10 prints of the said film in total at the time of its release in different cinema houses. 3. On 07.10.1991 Sri Kamal Kankaria, who has now absconded met the opposite party No. 2 and asked him to pay the balance amount of Rs.4,10, 000/- against the royalty amount and as the opposite party No. 2/ complainant expressed his inability to release the film on 11.10.1991 because of the fact that 10 prints of the film were not supplied to him and instead of that only 7 prints were available. As such, the complainant did not pay the balance amount. However, at the insistence of Kamal Kankaria the complainant paid Rs. 1 lakh in cash to him and informed him that balance sum of Rs. 3,10,000/-would be paid after receipt of the three prints and in the meantime the complainant requested Kamal Kankaria to take step for grant of receipt. But no such receipt was issued and it was assured that it would be issued afterwards. 4. On 08.10.1991 the complainant went to the office of the Exhibitors Syndicate and met the petitioner/accused and enquired about the balance three prints. But the petitioner informed the complainant that the balance three prints could not be arranged and he asked him to release the film with 7 prints only. As such, the complainant requested the petitioner to defer the release of the film for a week, as assured by Kamal Kankaria. But the petitioner refused to accept the proposal and demanded payment of the balance amount of Rs. 3,10,000/- from the complainant in course of that day. The complainant expressed his inability to release the film on 11.10.1991 in absence of the receipt of the balance three prints. But the petitioner did not agree to defer the release date of the film and suggested that the film would be released on 11.10.1991 in the account of the complainant through the company in terms of the agreement dated 05.10.1991 and in that event the company would reduce the royalty amount from Rs. 5,10,000/-and he further assured that whatever the business would be done by screening the said film, due credit would be given in the account of the complainant. The complainant relied upon such assurance and agreed to the proposal and the picture was released by the company on 11.10.1991. 5. 5,10,000/-and he further assured that whatever the business would be done by screening the said film, due credit would be given in the account of the complainant. The complainant relied upon such assurance and agreed to the proposal and the picture was released by the company on 11.10.1991. 5. On 14.10.1991 the petitioner called the complainant in his office and informed him that his company negotiated with one M/s. Nilkant Enterprise of Gauhati for distribution of right of Assam territories for a royalty amount of Rs. 1,21,000/- from the account of the complainant and out of five prints allotted in favour of the complainant, two prints @ Rs. 30,000/- each would be given to the said Nilkanat Enterprise. The petitioner wanted approval of the complainant in respect of that negotiation and the complainant gave his consent. The terms duly recorded in writing on the letterhead of the company where the signature of the complainant was obtained as a confirming party to the said arrangement. Said Nilkant Enterprise duly paid the royalty amount of Rs. 1,21,000/-along with cost of two prints of Rs. 60,000/-. Taking into consideration the aforesaid payment in the account of the complainant on 14.10.1991 a total sum of Rs. 3,21,000/- had already been paid to the petitioners company against the due royalty amount. 6. Subsequently, the opposite party No. 2, all on a sudden, came to know that the petitioner already transferred the distributorship right of the said film in favour of one M/s. Tulsi Pictures and the name of the said concern appeared in the Bulletin "EIMPA". The complainant immediately contacted the petitioner and asked for explanation. But he could not give any satisfactory explanation in this respect. In order to safeguard his interest the complainant immediately filed objection against the said registration of the said film in favour of M/s. Tulsi Pictures on 8.11.1991 with the association. 7. Subsequently, on search, the complainant came to know that petitioners company, vide its letter dated 03.10.1991, already transferred the film in favour of M/s. Tulsi Picture in respect of distribution rights of the said film. 7. Subsequently, on search, the complainant came to know that petitioners company, vide its letter dated 03.10.1991, already transferred the film in favour of M/s. Tulsi Picture in respect of distribution rights of the said film. Suppressing all these facts, the accused persons including the petitioner fraudulently entered into an agreement with the complainant on 05.10.1991 and induced him to make the payment towards the transaction when it was well within their knowledge that the petitioners company had no right of assignment of the distribution right of the said film in favour of complainant since it was already transferred in favour of M/s. Tulsi Picture. 8. The complainant met the petitioner and asked for explanation in this respect, when the petitioner informed the complainant that it was a temporary arrangement with M/s. Tulsi Picture and the same would be withdrawn if he paid the balance amount of Rs. 41,000/- against the balance royalty amount towards full and final settlement of the transaction. It was also assured that the petitioner company would deliver three prints of the said film in favour of complainant, who readily accepted the offer and paid the petitioner company a further sum of Rs. 41,000/-in cash. The complainant demanded receipt in respect of the said payment as well as the payment of Rs. 1 lakh which he made on 07.10.1991 through Kamal Kankaria. The petitioner somehow avoided granting receipt in favour of the complainant. Besides paying all those amount, the complainant has claimed that he had to spend more than Rs. 40,000/- towards publicity of the said film. According to the complainant, the petitioner and others committed breach of trust and caused wrongful loss to the complainant and thereby cheated the complainant and as such they are liable to be punished. 9. The said petition of complaint was sent to the P.S. for investigation. After completion of investigation, as prima facie case was made out, so, chargesheet was submitted against the accused persons. Ultimately the present petitioner/accused faced the trial before the Magistrate, who, by passing the impugned judgment convicted the petitioner for the offence under section 420 of the Indian Penal Code. 10. The petitioner, being aggrieved by the said order of conviction, moved the City Sessions Court by preferring an appeal. However, the ld. Sessions Judge, was pleased to uphold the order of conviction, passed by the ld. Magistrate and dismissed the appeal. 11. 10. The petitioner, being aggrieved by the said order of conviction, moved the City Sessions Court by preferring an appeal. However, the ld. Sessions Judge, was pleased to uphold the order of conviction, passed by the ld. Magistrate and dismissed the appeal. 11. Being aggrieved by the said order of the ld. Sessions Judge, this revisional application has been preferred. 12. It has been contended by the petitioner that both the Courts below failed to appreciate the evidence properly. The petitioner further claimed that the approach of the Court below was totally wrong and as such due to mis-appreciation of the evidence by the Courts below there was a failure of justice and as such, this Court, in exercise of its revisional power, should interfere with the matter. The petitioner further claimed that both the Courts below were of the opinion that since there was an earlier agreement dated 03.10.1991 between the petitioners company and M/s. Tulsi Picture, so the petitioner company could not enter into any agreement with complainants company on 05.10.1991 as at that time the petitioner company had no existing right to grant distributorship right in favour of the complainants company. According to the ld. Advocate for the petitioner both the Courts below failed to realize that the agreement between the petitioner company and M/s. Tulsi Picture was nothing but an agency agreement and by the said agreement, only agency right was given in favour of M/s. Tulsi Picture. Due to the existence of the said agreement, there could be no bar for the petitioners company to enter into further agreement for distributorship of the Hindi feature film `Mast Kalandar in favour of the complainants company. 13. According to the ld. Advocate for the petitioner, in the agreement with M/s. Tulsi Picture it was clearly mentioned therein that the said agreement would not disentitle the petitioner company to enter into further agreement with any other party for assigning the right of distributorship. He further contended that both the Courts below failed to appreciate that it was mentioned in the said agreement dated 03.10.1991 that in case of any subsequent agreement with any other party, the petitioner company would reimburse the cost that would have been incurred by M/s. Tulsi Picture towards publicity of the said feature film. 14. Furthermore, the ld. He further contended that both the Courts below failed to appreciate that it was mentioned in the said agreement dated 03.10.1991 that in case of any subsequent agreement with any other party, the petitioner company would reimburse the cost that would have been incurred by M/s. Tulsi Picture towards publicity of the said feature film. 14. Furthermore, the ld. Advocate for the petitioner also pointed out that the complainant company filed an objection with `EIMPA against registration of M/s. Tulsi Picture in respect of the film in question. Said objection of the complainant was rejected by the appropriate authority and both the Courts below failed to take note of this fact property. 15. Again, the ld. Advocate for the petitioner argued that both the Courts below failed to appreciate that subsequent to the knowledge of the complainant that there was a prior agreement concerning the said film in between the petitioners company and Tulsi Picture on 03.10.1991, the complainant further pursued with his agreement with the petitioner company and allegedly made some more payments. This fact was not taken into consideration by both the Courts below and as such it must be said that both the Courts below failed to consider the evidence on record. 16. Ld. Advocate for the petitioner also pointed out that both the Courts below failed to appreciate that as per terms of the agreement dated 5.10.1991 the complainant was to pay the entire amount by 08.10.1991 and as because the complainant failed to comply with those terms, so the film was released on 11.10.1991 by the petitioner company through its agent, namely Tulsi Picture. There was nothing wrong on the part of the petitioner company to release the film on that day due to non-compliance of the terms of the agreement by the complainant company. Both the Courts below failed to take note of this aspect resulting in failure of justice. 17. Lastly, ld. Advocate for the petitioner argued that it is palpably clear that there was an agreement between the parties and both the parties alleged violation of the terms of the agreement. Under such circumstances, this dispute can only be termed as breach of promise for which either of the party can claim damages in appropriate Civil Court by filing appropriate proceeding. Instead of doing that, the complainant has filed a criminal case against the petitioner and others. Under such circumstances, this dispute can only be termed as breach of promise for which either of the party can claim damages in appropriate Civil Court by filing appropriate proceeding. Instead of doing that, the complainant has filed a criminal case against the petitioner and others. Since it is a pure case of alleged breach of promise, the Criminal Court can have no jurisdiction to decide the matter and, according to the ld. Advocate for the petitioner, both the Courts below failed to appreciate this, resulting in miscarriage of justice. 18. By pointing out all these things, the ld. Advocate for the petitioner submitted that since both the Courts below failed to appreciate the evidence properly while disposing of the case, this Court, in exercise of its revisional power, should intervene into the matter to prevent any miscarriage of justice. 19. As against this, ld. Advocate for the State as well as the ld. Advocate for the opposite party No. 2/complainant argued that both the Courts below considered the evidence on record properly and thereafter came to the conclusion that the accused was guilty of the offence of cheating. According to the ld. Advocate for the opposite parties, it is not desirable for the High Court to interfere with the concurrent findings of the Courts below whereby both the Courts, after appreciation of evidence on record, convicted the accused for the offence under section 420 of the Indian Penal Code. 20. Ld. Advocate for the opposite party/State submitted that the High Court should be very cautious in exercising its power under section 401 of the Cr. PC in setting aside the concurrent findings of conviction by both the Courts below. 21. That apart, ld. Advocate for the opposite party further argued that existence of the earlier argeement dated 03.10.1991 with Tulsi Picture was a clear proof that when subsequent agreement dated 05.10.1991 was entered into, at the time the petitioner had no such right to assign distributorship in favour of the complainant company. Knowing it fully well, the petitioner induced the complainant to part with his valuable money in his favour and thereby entered into an agreement with him although he had at that time full knowledge that he had no right to sell the distributorship of the film in question in favour of the complainant. Knowing it fully well, the petitioner induced the complainant to part with his valuable money in his favour and thereby entered into an agreement with him although he had at that time full knowledge that he had no right to sell the distributorship of the film in question in favour of the complainant. Both the Courts below rightly pointed out these things in their judgments and were pleased to hold that this fact undoubtedly show that the accused had in his mind, from the very inception, to cheat the complainant by way of deceiving him. As such, the ld. Advocate for both the opposite parties argued that there was nothing wrong in the judgment of the ld. Courts below and this Court should not interfere with the said findings. 22. Ld. Advocates for the opposite parties further contended that since the accused persons had from very inception the intention to cheat the complainant, so it cannot be said that there was no criminal liability attached to the said transaction only because of the fact that a civil cause of action is also attracted in between the parties. According to the ld. Advocate, a particular transaction may give rise to civil action as well as criminal liability, provided the criminal intention is established. Ld. Advocate for the opposite parties argued that from the materials on record, there cannot be any doubt that the accused persons had the criminal intention from the very beginning in order to cheat the complainant by inducing him to part with his money by alluring him to enter into an agreement with the petitioner company. Due to all these things, ld. Advocate for the opposite parties prayed for dismissal of the revisional application. 23. Admittedly this revisional application has been preferred under section 401 of the Cr. PC praying for setting aside of order of conviction as passed by both the Courts below. It is the well settled principle that the High Court should not interfere with the concurrent findings of both the Courts below in exercise its revisional jurisdiction unless there are exceptional reasons for that. In this respect ld. Advocate for the opposite party/complainant cited a decision reported in 2004 SCC (Cri) 2003 (State of Maharashtra vs. Jagmohan Sinha Kuldip Singh Anand) and 2003 SCC (Cri) 1036 (State of A. P. vs M. Poshethy). In this respect ld. Advocate for the opposite party/complainant cited a decision reported in 2004 SCC (Cri) 2003 (State of Maharashtra vs. Jagmohan Sinha Kuldip Singh Anand) and 2003 SCC (Cri) 1036 (State of A. P. vs M. Poshethy). There cannot be any dispute regarding this legal proposition as enunciated by the Honble Supreme Court in the decision quoted above. But it appears from the decision reported in 1992(4) SCC 305 (Janata Dal vs. H. S. Chowdhury) and AIR 2004 SC 26 (Badam Singh vs. State of M.P.), 2002 SCC (Cri) 829 (Rama vs. State of Rajasthan) and 2000(1) Crime 49 (SC) (L.L. Kale vs. State of Maharashtra) that the High Court can, under special circumstance, interfere with the concurrent findings of conviction. It further appears from the said decision as well as from the section 401 of the Cr. PC that the object of the revisional jurisdiction is to confer power upon the superior Criminal Courts, a kind of paternal on supervisory jurisdiction, in order to correct miscarriage of justice arising from the misconception of law, irregularities of procedure, neglect on proper precaution of apparent harshness of treatment, which has resulted on the one hand or on the other hand some undeserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case. The terms of section are wide enough to permit interference with the findings of fact; but a long-standing practice has grown up to confine the exercise of the jurisdiction only to question of law. The terms of section are wide enough to permit interference with the findings of fact; but a long-standing practice has grown up to confine the exercise of the jurisdiction only to question of law. Yet, the High Court does interfere with the findings of fact where there are very exceptional grounds for interference in the interest of justice or when the miscarriage of justice is patent, or where there are such exceptional grounds i.e. misconstrue of evidence by lower Court or misconstruction or misreading for documentary evidence or that placing by the Court of the onus of proof on the accused, contrary to the law of evidence or to prevent a gross and palpable failure of justice, or where the finding of fact depends on a correct interpretation of law, or where the lower Courts have approached the case from a wrong point of view and the evidence produced has not received due consideration or where the findings of fact are not based on evidence on record and are prove to be wrong from the record itself etc. Appellate Courts concurrence with a patently wrong finding of guilt does not render it immune from interference, if acceptance of such findings by the Revisional Court also would result in miscarriage of justice. In this respect the decision reported in 1994(1) Crimes 706 (Gauhati High Court) (Sudip Ghosh & Ors. vs. State of Tripura), is relevant. In the said decision the learned Single Judge observed "Ordinarily it is not open for High Court to interfere with the concurrent findings of the Court below by re-appreciation of evidence in revisional jurisdiction except where Court below gravely misappreciated the evidence". 24. Again in the case of B. B. Mahendran vs. State, reported in 1996 Cr. LJ 2619, the learned Judge on the Madras High Court observed that "Evidence not considered by lower Courts with proper legal perspective but misconstrued totally resulting in failure of justice _ High Court can interfere with even with the concurrent finding of fact, under revisional jurisdiction". 25. Further it appears from the case reported in State of Karnataka vs. Appu Balu Ingale & Ors., reported in AIR 1993 SC 1126 , that the Honble Supreme Court observed that it is not ordinarily open to the High Court to interfere with by re-appreciating the evidence. 25. Further it appears from the case reported in State of Karnataka vs. Appu Balu Ingale & Ors., reported in AIR 1993 SC 1126 , that the Honble Supreme Court observed that it is not ordinarily open to the High Court to interfere with by re-appreciating the evidence. But in case of non-appreciation of evidence and non-consideration of the materials properly, the High Court can always interfere with the concurrent finding of the Courts below. 26. So, it appears that there is no bar for the High Court, in exercise of its revisional jurisdiction, to interfere with the concurrent finding of conviction by the Courts below if, as described above the illegalities are apparent from the materials on the record. 27. Let us now see from the judgment of the Courts below as to whether there is any scope to hold that both the Courts below failed to appreciate the evidence properly or whether the lower Courts approached the case from a wrong point of view resulting in gross miscarriage of justice. If those things can be established then and then only this Court can interfere with the said finding. 28. So far as the present case is concerned, it appears that the complainant has claimed that he entered into an agreement with the petitioner company on 05.10.1991. According to the complainant, before entering into with the said contract, the accused/petitioner already entered into a separate contract over the self-same subject-matter with Tulsi Picture on 03.10.1991. The complainant has claimed that although on 05.10.1991 the accused/petitioner had no right to assign the distributorship of the film, still he induced the complainant to part with his money and to enter into an agreement with the accused/petitioner with a fraudulent intention to cheat the complainant. It appears that both the Courts below accepted this submission of the complainant and held that the accused/petitioner was guilty of cheating the complainant. In arriving at such a conclusion both the Courts below heavily relied upon the fact that there was an earlier agreement between the accused/petitioner and M/s. Tulsi Pictures on 03.10.1991 and so both the Courts below held that the accused/petitioner had dishonest intention of cheating the complainant. In arriving at such a conclusion both the Courts below heavily relied upon the fact that there was an earlier agreement between the accused/petitioner and M/s. Tulsi Pictures on 03.10.1991 and so both the Courts below held that the accused/petitioner had dishonest intention of cheating the complainant. But if we look into both the agreements dated 03.10.1991 and 05.10.1991 then it will appear that by virtue of the second agreement the complainant was given the distributorship right of film by the accused/petitioner and it was settled therein that the complainant would pay the entire sum of Rs. 5,10,000/-by 08.10.1991 to gain the distributorship right of the film and in default of that, the film would be released by the complainant directly by him or through his agent at the cost of the complainant company. Admittedly the complainant did not comply with the provisions of the agreement. According to him, he paid Rs. 1 lakh, receipt of which has been filed. In addition to that, the complainant has claimed that he subsequently paid another sum of Rs. 1 lakh in favour of another accused Kamal Kankaria in cash and also subsequently paid Rs. 41,000/-to the accused/petitioner and for both these payments, no receipt was granted. This claim of the complainant appears to be unbelievable. It is hard to believe that without any receipt such big amount was paid in the year 1991. Be that as it may, it is the case of the complainant that as because the accused already entered into an agreement with M/s. Tulsi Picture on 03.10.1991, whereby the distributorship right of the film was given to that concern, so when the accused further entered into an agreement with the complainant on 05.10.1991, at that time he had no right of assignment of the distributorship of the film in favour of the complainant and since by making such representation the accused/petitioner admittedly accepted Rs. 1 lakh from the complainant, so it must be held that he had dishonest intention from the very beginning and thereby cheated the complainant. Ld. Courts below also accepted this argument in holding the accused/petitioner guilty for the offence under section 420 of the Indian Penal Code. But it appears that both the Courts below did not consider the agreement dated 03.10.1991 which was executed between the accused company and M/s. Tulsi Picture properly. This document has been marked as Exhibit _ 8. Ld. Courts below also accepted this argument in holding the accused/petitioner guilty for the offence under section 420 of the Indian Penal Code. But it appears that both the Courts below did not consider the agreement dated 03.10.1991 which was executed between the accused company and M/s. Tulsi Picture properly. This document has been marked as Exhibit _ 8. It appears from the said Exhibit that M/s. Tulsi Picture was simply appointed as an agent of the petitioner company e.g. Exhibitors Syndicate. It was clearly stated in clause 7 of the said agreement that "It is clearly understood that the picture belongs to us, you are exploiting the picture on our behalf as our agent, we being the principal distributor we have every right to sell or transfer the picture and if we sale the picture as the negotiations are there, you will return all the films and publicity materials to us and we agree to pay you your investment for the publicity expenses etc. if any done by you; and you have no right whatsoever against the picture save and except the expenses incurred on account of above." 29. This clause clearly indicates that M/s. Tulsi Picture was appointed as an agent so far as the distribution of the film in question, on behalf of the petitioner company. In addition to this it appears from the Exhibit _ 6, that is the Form No. `A, which was submitted for registration by M/s. Tulsi Picture, it was clearly mentioned therein that said concern had agency right in respect of the film in question. 30. P.W.1 Asish Das stated in his evidence to the effect: 31. Again if we look into the evidence of P.W.2 who is an employee of `EIMPA then it will appear that he admits by saying "The distribution right was given agency basis and not absolute right." This P.W.2 is an independent witness and no way connected with the accused persons. As such, there is nothing to disbelieve his statement. 32. Again if we look into the evidence of P.W.2 who is an employee of `EIMPA then it will appear that he admits by saying "The distribution right was given agency basis and not absolute right." This P.W.2 is an independent witness and no way connected with the accused persons. As such, there is nothing to disbelieve his statement. 32. That apart, the P.W. 5 who is an authorised person of Tulsi Picture also stated in his deposition that "The picture was given to us as agency basis with the option that if any one is selected afterwards by the Syndicate, the film would be returned by us and in the way the agreement would be recalled." These statements along with the other materials, as already discussed above, clearly suggest that Tulsi Picture was given only the agency right and not absolute distribution right on 03.10.1991 and as such, there was nothing wrong on the part of the accused to enter into an agreement with the complainant on 05.10.1991. There cannot be any doubt that Tulsi Picture was appointed as agent on behalf of the petitioner company in respect of the film in question. No absolute distributorship right was transferred in favour of the said concern by the petitioner company. 33. Ld. Advocate for the opposite party/complainant drew my attention to the Exhibit _ 5 wherein the petitioner company informed the Secretary, EIPMA, to the effect that Tulsi Picture was given distributorship right in respect of the film in question. But in view of the Exhibit _ 6 as well as the Exhibit _ 8, which is the agreement between two parties executed on 03.10.1991, there cannot be any doubt that M/s. Tulsi Picture was only appointed as an agent on behalf of the petitioner company. Since there is a clear clause in the said agreement that the petitioner company had the right to sell the distributorship of the film to any other party and Tulsi Picture could not raise any objection in that respect, the letter which has been marked as Exhibit _ 5 should not be given much importance. It appears that on the basis of the said agreement between Tulsi Picture and the petitioner company and on the basis of Exhibit _ 6 the regulating authority e.g. EIPMA also took step for registration of Tulsi Picture, so far as film in question, as agent of the petitioner company. It appears that on the basis of the said agreement between Tulsi Picture and the petitioner company and on the basis of Exhibit _ 6 the regulating authority e.g. EIPMA also took step for registration of Tulsi Picture, so far as film in question, as agent of the petitioner company. 34. But the ld. Courts below did not consider this vital aspect while coming to the conclusion that Tulsi Picture was appointed as sole distributor of the film by the petitioner on 03.10.1991. So the very approach of the ld. Courts below is defective and consequently same misled the Courts below in coming to such a conclusion. 35. If we peruse the judgment of the Courts below then it will appear that mainly both the Courts held the accused guilty for the offence of cheating on the ground that prior to the transaction dated 05.10.1991 he already transferred his said right in favour of Tulsi Picture on 03.10.1991 and suppressed this fact while executing the agreement dated 05.10.1991. I have already pointed out that there was nothing wrong on the part of the petitioner company in entering into an agreement with Tulsi Picture on 03.10.1991 as his agent. Consequently it cannot be said that the execution of the subsequent agreement dated 05.10.1991 between the parties was also illegal. I have got no hesitation to hold that both the Courts below misconstrued those documents in coming to such a conclusion thereby resulting in miscarriage of justice. 36. That apart, it appears that the complainant has claimed that the accused dishonestly induced him to part with his money by virtue of the agreement 05.10.1991. In fact the complainant has filed a document showing payment of Rs. 1 lakh only. Although, he has claimed that he made further payment to the accused but no such receipt could be produced by the complainant. Be that as it may, if we look into the Exhibit _ 1 then it will appear that there was a business agreement between the parties where the complainant agred to pay Rs. 5,10,000/-by 08.10.1991 in favour of the accused company in respect of the distributorship right of the film in question. So if the accused accepted Rs. 1 lakh from the complainant by virtue of the said agreement, then it cannot be termed as illegal or improper, as claimed by the complainant. 5,10,000/-by 08.10.1991 in favour of the accused company in respect of the distributorship right of the film in question. So if the accused accepted Rs. 1 lakh from the complainant by virtue of the said agreement, then it cannot be termed as illegal or improper, as claimed by the complainant. It is clear from the Exhibit _ 1 that the complainant was bound to pay the entire amount by 08.10.1991. There is no doubt that the complainant failed to pay the money within the specified time and as such as per terms of agreement there was no bar for the petitioner to release the film through his other agent. This action of the accused company cannot be said to be illegal and improper, far less to speak of cheating, as alleged by the complainant. If we look into the Exhibit _ 35 then it will appear that the complainant company preferred an appeal against the order of EIPMA. It will appear from the appeal that the complainant admitted that there was a business transaction in between the parties and the complainant also prayed for return of the money along with interest. It may be pointed out here also that before filing the petition of complaint, the complainant filed a petition before the EIMPA which is the regulating authority in respect of the business in question, seeking redress. From the order of the said authority it appears that it was clearly observed therein that there was nothing wrong in registering the name of Tulsi Picture so far as the distribution of film in question was concerned. Of course against that order, the complainant has claimed that he has preferred an appeal and it is still pending. But for the present case, we find that the claim of the accused/petitioner, so far as the transaction is concerned, was accepted by the proper authority. Under such circumstances, it is difficult to accept the contention of the complainant that the accused/petitioner was guilty of cheating. 37. Apart from all these things, if we look into the evidence of the P.W.1, who is the authorised person on behalf of the complainant company, then it will appear that even after 08.10.1991 the complainant accepted money ostensively on account of the royalty of the film from the accused company. This fact has also been admitted in the petition of complaint. This fact has also been admitted in the petition of complaint. So it is apparent that the complainant even after his knowledge that the distributorship right was given allegedly to Tulsi Picture, preferred to pursue with this agreement with the accused company dated 05.10.1991. This fact is a clear proof that the complainant preferred to accept the said agreement between the parties which has been marked as Exhibit _ 1 and so in view of such circumstances it cannot be said that the complainant was cheated by the accused, as alleged. 38. Furthermore, if we look into the evidence of P.W.1 Asish Das then it will appear that in his cross-examination he admitted by saying "It was decided that the agreement will come into force subsequent to the payment of entire amount to the accused company and as against that they would supply 10 prints to me." He further admitted in his evidence to the effect "It is true that on 14.10.1991 I had to forego my right in respect of Assam Territory on taking Rs. 1,21,000/-and out of five prints of my quota two prints were given to Assam. I expressed my consent in writing". This admission on the part of the P.W. 1/complainant clearly shows that even after 08.10.1991 he preferred to act on the basis of the said agreement. So, if subsequently any act of cheating has been done by the accused persons, as alleged by the complainant, then for that reason it cannot be said that the accused persons had, from the very beginning of the execution of the agreement dated 05.10.1991, the intention to cheat the complainant. In fact it is clear that the complainant acted on the basis of the said agreement and so question of fraudulent intention from the very beginning in order to cause wrongful loss to the complainant does not arise at all. Surprisingly both the Courts below did not consider this vital part of the evidence in their judgment. Certainly it has caused failure of justice. 39. If we look into the Exhibit _ 1 as well as the evidence of P.W.1 then there cannot be any doubt that the agreement was between the parties towards their normal business transaction. Surprisingly both the Courts below did not consider this vital part of the evidence in their judgment. Certainly it has caused failure of justice. 39. If we look into the Exhibit _ 1 as well as the evidence of P.W.1 then there cannot be any doubt that the agreement was between the parties towards their normal business transaction. If, according to the complainant, there was any violation of the terms of the agreement on behalf of the accused/petitioner, then certainly that was nothing but breach of promise and for that his remedy lies in filing a suit for damages before the appropriate Civil Court. Instead of doing that, the complainant has preferred to file the criminal case against the accused/petitioner. The Honble Supreme Court in its decision reported in 2006 AIR SCW 3830 (Indian Oil Corporation vs. NEPC India Ltd.) has clearly laid down to the effect "Any effort to settle disputes and claims, which do not involve any criminal offence, by applying through criminal prosecution should be deprecated and discouraged". I have already pointed out that from the Exhibit _ 1 as well as from the evidence of P.W.1 and also from the Exhibit _ 35 and other relevant papers, it is palpably clear that the dispute in between the parties is purely civil in nature and no criminal liability can be attached to it. To my mind, both the Courts below failed to appreciate this fact while holding the accused guilty for the offence of cheating. The approach of the Courts below, in this respect, appears to me to be absolutely improper and I have got no hesitation to hold that it has caused miscarriage of justice so far as present case is concerned. Since in my opinion, the dispute is absolutely pure and simple civil in nature. So it cannot be held that the accused has committed the offence of cheating due to the alleged violation of the terms of the agreement. As such, I think that both the Courts below were not justified in holding the accused guilty for the offence of cheating. I have got no hesitation to hold that both the Courts below mis-appreciated the evidence and proceeded with a wrong approach resulting in absolute failure of justice. 40. As such, I think that both the Courts below were not justified in holding the accused guilty for the offence of cheating. I have got no hesitation to hold that both the Courts below mis-appreciated the evidence and proceeded with a wrong approach resulting in absolute failure of justice. 40. Due to all these things, I think that it is a fit case where this Court should interfere with the concurrent findings of the Courts below in exercise of its revisional jurisdiction, if not for anything else but to prevent miscarriage of justice. As such I hold that the accused/petitioner should be held to be not guilty for the offence of cheating and he is entitled to be acquitted. 41. In the result, the revisional application succeeds on contest. The judgment dated 27.11.2003, passed by the ld. 3rd Bench, City Sessions Court in Criminal Appeal No. 90 of 2001 confirming the judgment and order of conviction passed by the ld. Metropolitan Magistrate, 17th Court, Calcutta in G.R. Case No. 1214 of 1992 is set aside. The accused/petitioner is acquitted and discharged from bail bond. 42. Send a copy of this judgment along with LCR to the Court below at once for information and necessary action. 43. Xerox certified copy of this order, if applied for, be supplied for the parties on urgent basis. "I later came to know that Exhibitors Syndicate Ltd. gave agency to Tulsi Picture". Revisional application succeeds.