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2007 DIGILAW 109 (PAT)

Rana Amitabh Singh v. State Of Bihar

2007-01-15

ABHIJIT SINHA

body2007
Judgment 1. This application under Sec. 482 Cr.P.C. has been preferred by the three petitioners who happen to be associated in various capacity with the Star Group of Hong-Kong, an internationally acclaimed Company, incorporated under the Companies Act, having its office at New Delhi and carries on business of distributing signals of various programmes of the Star Group to its consumers, have invoked the inherent jurisdiction of this Court to question the propriety of order dated 13.1.2005 passed by Sri Jiwan Lai, Judicial Magistrate, 1st Class, West Champaran at Bettiah in Complaint Case No. 2583(C) of 2003 (Trial No. 3095 of 2004) whereby cognizance under Sections 406 and 420 of the Indian Penal Code has been taken against the petitioners. 2. The prosecution case is based on the complaint petition filed by Brijesh Jaiswal, O.P. No. 2, herein who runs a firm in the name of his minor son in the name and style of M/s Jaiswal Entertainment Network at Narkatiaganj. It is said that an agreement was made on 28.3.2001 between the complainant and the authorised officers of the Star Television Network for three channels of the Network and the petitioners readily gave 299 connections to the complainant after deposit of quarterly fee. It has further been stated that the accused persons were mentally prepared from before to deceive and cheat the complainant and, therefore, even after the agreement had come into operation they disconnected the access to the aforesaid channels on 4.10.2001. The further case of the complainant was that when he enquired about the disconnection over telephone the accused persons sent an ante dated letter dated 20.9.2001 through registered post in the name of the complainant on 5.10.2001 which was received by him on 8.10.2001. By the aforementioned letter it had been alleged that the accused persons had demanded fee for 500 connections instead of 299 connections and the telecast was resumed only after the accused persons took Rs. 1000.00 through bank-draft. On this premise, it was submitted that the illegal act of the accused persons caused economical hardship to the complainant. It is also said that again through letter dated 1.12.2001 the accused persons directed the complainant to deposit fee of 500 cable connections and on 31.12.2001 the telecast was again stopped and was resumed on 9.2.2002. The petitioner no. On this premise, it was submitted that the illegal act of the accused persons caused economical hardship to the complainant. It is also said that again through letter dated 1.12.2001 the accused persons directed the complainant to deposit fee of 500 cable connections and on 31.12.2001 the telecast was again stopped and was resumed on 9.2.2002. The petitioner no. 2 is said to have sent a letter to the complain-ant wherein he demanded quarterly fee for 301 connections from the complainant. The complainant is said to have visited the Patna Office and gave written application to the accused persons and requested them that the complainant be supplied only 100 connections to the consumers and as such the demand of 351- connections was not genuine. The complainant also requested them to inquire into the matter before saddling him with unnecessary cost. This appears to have infuriated the accused persons who became abusive and before the complainant was assaulted and thrown out of the office by the accused. 3. It appears that on the basis of the allegations a complaint case bearing No. 2597(C) of 2002 was filed and was sent to Shikarpur PS. under Sec.156(3) Cr.P.C. and Shikarpur PS. Case No.213 of 2002 was registered. It has also been alleged that the police was in collusion with the accused persons and, therefore, a prayer had been made by the complainant to the effect that cognizance be taken of the offence and the accused persons be put on trial. The police after due investigation submitted a final report for want of sufficient evidence and although a notice was issued to the complainant by the Chief Judicial Magistrate, he instead of appearing to contest the final report filed a fresh complaint petition by way of protest which came to be registered as Complaint Case No. 2583(C) of 2003 after three months of receipt of notice. 4. It has been submitted on behalf of the petitioners that the impugned order is patently illegal, bad in the eyes of law and is contrary to the well settled principles of law. It was also submitted that it would be evident from a perusal of the complaint petition that no prima facie case appears to have been made out against the petitioners muchless any criminal ability or any inducement to commit the offence of cheating and criminal breach of trust. It was also submitted that it would be evident from a perusal of the complaint petition that no prima facie case appears to have been made out against the petitioners muchless any criminal ability or any inducement to commit the offence of cheating and criminal breach of trust. As a matter of fact, according to the learned counsel for the petitioners, the entire transaction is of civil nature and character as it involves a mere contractual issue which could have been agitated before a court of competent civil jurisdiction and the present criminal proceeding was an abuse of the process of the court. 5. In defence it was sought to be submitted that being an international organisation the Star Group of Hong-Kong believe in executing a proper agreement with the cable operator stipulating the rights and obligations of both parties and some of the salient features of the agreement are as follows: (I) That it shall comply with all rules and regulations with respect to the distribution of the subscribed channels in terms of the agreement. (II) That it shall not misuse the subscribed channels and shall not conceal/misrepresent the number of sub-operators and subscribers connected to its distribution system in the area. (III) That it shall pay the all duties, taxes, fees and other outgoings payable in respect of the above shall constitute an event of default under the agreement and shall entitle the licensor to disconnect the access to the subscribed channels hereunder and terminate the said agreement in terms of Clause 3, Clause 5(k) and Clause 12 of the Subscription Agreement. (IV) That under clause 14(b) of the agreement, the petitioners have a right to charge Rs. 1000.00 for reconnection or higher as per the Companys existing policy apart from the subscription fee of Rs. 16,500.00 based on his total subscribers base, i.e. around 299 subscribers. 6. (IV) That under clause 14(b) of the agreement, the petitioners have a right to charge Rs. 1000.00 for reconnection or higher as per the Companys existing policy apart from the subscription fee of Rs. 16,500.00 based on his total subscribers base, i.e. around 299 subscribers. 6. It has further been submitted that due to consumers demand of the channels operated by the Star Group in order to reach to the consumers promptly the petitioners enter into an agreement with the cable operator who in turn are under an obligation under the agreement to disclose to the petitioners the area covered by them and the actual number of subscribers correctly in order that the above channels reach the highest number of consumers and such agreements are for a limited period of three months to one year depending upon the credentials and performance of the cable operators. So far as the complainant is concerned, the first agreement was entered into in the year 2000 but in the first transaction itself the complainant defaulted by virtue of Clause 3(1) of the Subscription Agreement whereby he was bound to declare the actual number of subscribers and pay the increased subscription fee for the increase in the actual number of subscribers. Thereafter on request made by him and an undertaking not to be in further breach the petitioners reconnected the opposite party no. 2 and another subscription agreement was entered into between the parties in March, 2001 but the opposite party no. 2 again defaulted and again on being approached and giving fresh undertaking reconnected him vide the subscription. Notwithstanding the undertaking given by the opposite party no. 2, on inspection it was found that opposite party no. 2 was under reporting regarding the subscribers base and as such a final warning was given to him through letter dated 22.9.2002 and he was also directed to pay the differential amount and to send the true declarations of subscriber base within seven days. When opposite party no. 2 failed to comply signals were disconnected on 1.10.2002. 7. The learned counsel relying on the case of Punjab National Bank vs. Surendra Prasad Sinha, reported in 1993 Supp. (1) SCC 499 submitted that action in terms of the contract expressly or implied is a negation of criminal breach of trust defined in Sec. 405 and punishable under Sec. 409 I.P.C. It is neither dishonest, nor misappropriation. 7. The learned counsel relying on the case of Punjab National Bank vs. Surendra Prasad Sinha, reported in 1993 Supp. (1) SCC 499 submitted that action in terms of the contract expressly or implied is a negation of criminal breach of trust defined in Sec. 405 and punishable under Sec. 409 I.P.C. It is neither dishonest, nor misappropriation. He next sought to rely on the case of Hridaya Ranjan Prasad Verma vs. The State of Bihar, reported in (2000)4 SCC 168 where Their Lordships dealing with the ingredients of an offence under Sec. 420 I.P.C. held that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. The learned counsel sought to point out that the core postulate of dishonest intention in order to deceive the complainant had not been made out even if all the averments in the complaint on their face value were accepted and in such a situation continuing the criminal proceeding against the accused persons would be an abuse of the process of the court. 8. Several other cases were cited in support of the submissions. Without multiplying and adding to the number of cases suffice it to say that to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. In Jaswantrai Manilal Akhaney vs. State of Bombay, 1956 SCR 483 , it was held "Criminal breach of trust" contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed by him on the happening of a certain event. In Jaswantrai Manilal Akhaney vs. State of Bombay, 1956 SCR 483 , it was held "Criminal breach of trust" contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed by him on the happening of a certain event. In the instant case, there was no entrustment of any property by the petitioners in the hands of opposite party no. 2. As a matter of fact, the opposite party no. 2 himself had violated the terms of the contract and the petitioners herein were within their right to disconnect the signals that had been allotted to opposite party no. 2. 9. The Apex Court in Hridaya Ranjan Prasad Vermas case (supra) had held that in determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. The ingredients of the offence of cheating also do not appear to have been made out from the protest petition. 10. From what has been discussed above, I am sanguinely satisfied that the complaint does not make out any case muchless a prima facie case, a condition precedent to set criminal law in motion. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. While on this issue, it is necessary to take note of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. While on this issue, it is necessary to take note of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. There is also an impression that if a person could some how be entangled in a criminal prosecution, there is a likelihood of imminent statement. In this context, I may borrow the language of the decision in Indian Oil Corporation vs. NEPC, reported in 2006(6) SCC 736 where Their Lordships held as follows: "While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their powers under Sec.250 Cr.P.C. more frequently, where they discern malice or frivolous-ness or ulterior motives on the part of the complainant." 11. Due regard being had to the facts and the circumstances of the case and the discussions made above, I am of the opinion that the dispute relates to a presumed breach of contract and, therefore, admittedly is civil in nature. Therefore, to continue a criminal proceeding in respect of cases of civil nature would amount to an abuse of the process of the court. 12. Accordingly, the impugned order taking cognizance is hereby quashed and the application is allowed.