Mr. Ramakant Prasad, Son of Mr. Laxmi Niwash Prasad v. Proprietor of M
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.14967 of 2009 ====================================================== 1. Eros Multimedia Private Limited (now known as Eros International Media Pvt. Ltd.) a company incorporated under the Companies Act, 1956 and having its office at Satyadev Building, 2nd Floor, Opp. Q Labs, Link Road, Andheri (West) Mumbai- 400053 Thru. B.K.Talati, Director 2. Sundari Ramamurthy, Wife of S. Ramamurthy, Non-Executive Director of Petitioner no.1, having her address at Satyadev building, 2nd Floor, Opp. Q Labs, Link Road, Andheri (West), Mumbai- 400053. 3. Sunil Arjan Lulla, Son of Arjan Lulla, Executive Director and President- India, of petitioner no.1 having his address at Satyadev Building, 2nd Floor, Opp. Q Labs Link Road, Andheri (West), Mumbai 400 053. .... .... Petitioners 1. The State Of Bihar 2. Mr. Ramakant Prasad, Son of Mr. Laxmi Niwash Prasad, Versus Proprietor of M/s. Ishwar International, resident of Flat No. 508/B, Gagan Apartment, Exhibition Road, P.S. Gandhi Maidan, Patna 800001. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioners : Mr. R.P. Singh, Sr, Adv. Mr. Rakesh Kumar, Adv. Mr. Anuj Prakash, Adv. For the Opposite Parties : Mr. Chandra Mohan Jha, Adv. Mr. Ashutosh Kumar, Adv. Mr. B. Singh, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 21 12-11-2013 The present application has been filed for quashing of the order dated 18.09.2008 passed by learned JM, 1st Class, Patna in connection with Complaint Case No. 1924C of 2008, whereby process has been directed to be issued after cognizance being taken for the offences punishable under Sections 420, 468 and
Facts
Patna High Court Cr.Misc. No.14967 of 2009 (21) dt.12-11-2013 2/8 120B of the IPC. Petitioner no.1 is media company, petitioner no.2 is Non-Executive Director and petitioner no.3 is the Executive Director and President of the said company, namely, Eros International Media Pvt. Ltd. It is claimed by the complainant that he is the proprietor of M/s Ishwar International, engaged in the business of feature film distribution in the State of Bihar and Jharkhand and in response to an advertisement, concerning two films “Dus
Legal Reasoning
complainant and finding a prima facie case, the learned JM, took cognizance of the offence. It is further submitted that the contentions of the petitioners can be considered at the time of framing of charge. This is not in dispute that the claim of the complainant about ten and seven songs in the aforesaid two features films are not incorporated in the agreement entered into between the parties and the complainant’s claim can arise only out of the contract Patna High Court Cr.Misc. No.14967 of 2009 (21) dt.12-11-2013 5/8 entered into between the parties. It appears that though the learned Judicial Magistrate while passing the impugned order, has relied upon the agreement entered into between the parties, but the impugned order does not reflect whether the learned court below has taken into consideration, the fact whether the claim of the complainant is incorporated in the agreement or not. Even assuming the contention of counsel for the complainant to be true, it is absolutely a dispute arising out of the breach of contract and for redressal of such grievances, the act of resorting to criminal forum, has been deprecated by the Apex Court in the case of Indian Oil Corporation Vs. NEPC India Ltd and Others reported in 2006(6) SCC 736 of which the paragraph no. 13 reads as follows:- 13. While on this issue, it is necessary to take notice 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. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is Patna High Court Cr.Misc. No.14967 of 2009 (21) dt.12-11-2013 6/8 also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri V. State of U.P.11 this court observed: (SCC P.643, para 8) “It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” Admittedly, the agreement was entered into between the company and the complainant, hence the petitioner cannot be held vicariously liable for breach of the contract. Though, the petitioners signed the agreement on behalf of the company, but, since there is no breach of the written agreement, hence no offence Patna High Court Cr.Misc. No.14967 of 2009 (21) dt.12-11-2013 7/8 is made out. This is not in dispute that the proposition of the case which arises out of breach of trust gives rise to predominantly a civil wrong and not a criminal offence. Such proposition has been considered in paragraph no. 13 of G.H.C.L. Employees Stock Option Trust (Supra) which reads as follows:- “There is no dispute with regard to the legal proposition that the case of breach of trust or cheating are both a civil wrong and a criminal offence, but under certain situation where the act alleged would predominantly be a civil wrong, such an act does not constitute criminal offence”. It has been held in case of Madhavrao Jiwaji Rao Scindia Vs. Sambhajirao Chandrojirao Angre, reported in (1988) 1 SCC692, in para 7, which reads as follows:- “The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique Patna High Court Cr.Misc. No.14967 of 2009 (21) dt.12-11-2013 8/8 purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage”. Hence in view of this Court, no offence under Sections 420 and 468 of the IPC is made out in the light of the discussion made above. In view of the facts and circumstances discussed above, allowing the prosecution to continue will be an abuse of the process of the court and hence to secure the ends of justice, the order of cognizance dated 18.09.2008 passed in Complaint Case No. 1924C of 2008 including the entire prosecution of the said case with regard to the petitioners is hereby quashed. Accordingly, the application is allowed. (Dinesh Kumar Singh, J) Amrendra/-
Arguments
Kahaniyan” and “Mr. White Mr. Black”, the complainant negotiated with petitioner nos. 1 and 2 for distributorship of the aforesaid two films, when it was assured that “Dus Kahaniyan” had ten songs, whereas “Mr. White Mr. Black” had seven songs. In pursuance to the aforesaid assurance Rs. five lacs and Rs. ten lacs were given as advance for signing agreement and on receipt of the said money, the agreement was entered into on 21.1.2007 between the parties, however, no receipt was given in lieu of the part payment. The complainant alleged that on the verbal assurance and promotional materials supplied by the accused persons, the complainant was made to believe that the film “Dus Kahaniyan” has ten songs, whereas film “Mr. White Mr. Black” has seven songs and on the basis of the same, the complainant Patna High Court Cr.Misc. No.14967 of 2009 (21) dt.12-11-2013 3/8 made assurance to sub-distributors and spent huge amount on the promotion of the two films also, but after release of the film the complainant realized that “Dus Kahaniyan” does not have any song, while “Mr. White Mr. Black” has only five songs, but two popular songs were deleted. It is submitted by learned Senior Counsel for the petitioners that the matter has not travelled beyond the cognizance level and vide order 18.04.2009 of this Court, the further proceeding of Complaint Case No. 1924 (c) of 2008 was stayed. It is further submitted that in pursuance to the agreement between the petitioners and the complainant which has been brought on record as Annexure-5, the exhibition of the aforesaid two feature films were authorized to the complainant but the said agreement did not stipulate any condition with regard to the number of songs in the two feature films. Hence, no offence is made out. Moreover, the petitioner cannot be held liable since the agreement was between the company and the complainant, though the agreement was signed by petitioner no.2 on behalf of the company but no specific role has been attributed against the petitioners for the alleged misrepresentation. The petitioners cannot be held liable for the assurance made by the company. Reliance has been placed on the judgment of the Apex Patna High Court Cr.Misc. No.14967 of 2009 (21) dt.12-11-2013 4/8 Court, as reported in 2013(4) SCC 505, (GHCL Employees Stock Option Trust V. India Infoline Ltd.). It is submitted by Mr. Ashutosh Kumar, learned counsel for opposite party no.2/complainant that on the basis of the assurance given and the promotional documents supplied by the Company, the complainant was made to believe that the film “Dus Kahaniya” contains ten songs, whereas film “Mr. White Mr. Black” contains seven songs, but when the films were released it was found that “Dus Kahaniya” did not have any song, while “Mr. White Mr. Black” contained only five songs and two popular songs were deleted. On such assurance of popular songs being there in two feature films, the complainant made huge investment, hence the accused persons including the petitioners who acted on behalf of the Company, cheated the