1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 1417 OF 2001 Sandeep Pal Singh Waraich ] Age Years, Occ. : Film Making, ] R/o. Row House - 12, Hill Garden, ] Manpada, Opp. Tikujini Wadi, Thane. ] Petitioner Vs 1. Subhash Chandra Goel ] Chairman, Zee TV Network, Zee ] Telefilms Ltd, and its associates ] viz. Zee India TV EL, Zee TV, Zee ] Cinema, ] All at - 135, Continental Building, ] Dr. Annie Besant Road, Worli,Mumbai. ] 2. The State of Maharashtra ] Respondents Ms. Ameeta Kuttikrishnan i/b Ms. S.D. KhoT for the petitioner Mr. V.M. Thorat for respondent no. 1 Mr. H.J. Dedhia, APP for the State CORAM : SMT. V.K. TAHILRAMANI, JJ DATE : 19th APRIL, 2010 ORAL JUDGMENT: 1. This petition is directed against the judgment and order dated 28.06.2001 passed by learned IV Additional District and Sessions Judge, Thane in Criminal Revision No. 1.WP1417-01 2 37 of 2001. By the said judgment and order, the learned Sessions Judge allowed the Criminal Revision and discharged the respondent - original accused of the offence punishable under section 52-A and 63 of Copy Right Act, 1957 from Criminal Case No. 1055 of 2000. 2. The case of the petitioner-original complainant is that he had produced a film "Jaan Se Badhkar". On 21.12.1995, he entered into a written agreement with one Mr. Amol Borde whereby he agreed to assign various rights in the said film as set out in the agreement for a consideration of Rs. 4,05,000/-. Mr. Borde gave a token amount to the complainant, however, he failed to pay the balance amount and neglected to take delivery of material of the film "Jan Se Badhkar". According to the complainant, on account of this, he rescinded the contract between Mr. Borde and himself by issuing notice dated 09.11.1996. According to the complainant, prior to approaching Mr. Amol Borde, the complainant had approached the respondent no. 1. He gave the respondent three trials of the film on three different occasions in the year 1995. The respondent expressed his desire to purchase the picture but later on he did not purchase the picture, therefore, the complainant approached Mr. Amol Borde and executed the agreement with him. However, according to the complainant, he had 1.WP1417-01 3 apprehension that the respondent had obtained copy of cassette of the said film and retained the same with him without the consent of the complainant, hence, he issued two notices to the respondent dated 09.11.1996 and 08.12.1997 stating therein that he had entire rights of the movie and the respondent could not telecast the same. However, the movie was telecast on 26.11.1997 on Zee Cinema and on 22.01.1998 on EL Zee India T.V. According to the complainant, as he has entire rights of the movie "Jaan Se Badhkar"and no rights were with the respondent, the respondent being the chairman of Zee Telefilms Ltd could not have telecast the movie. By telecasting the movie, he committed an offence punishable under section 52-A and 63 of Copy Right Act, 1957. 3. I have heard learned counsel for the petitioner- original complainant and learned counsel for the respondent- original accused. I have also perused judgment and order passed by the learned Sessions Judge, complaint and other record in this case. 4. Learned advocate for the petitioner submitted that when three trials of the film were shown to the respondent, the show reel or prints must have been retained by the respondent and thereafter, he has illegally telecast the same. As far 1.WP1417-01 4 as this aspect is concerned, there is nothing on record to show that the reels / prints were handed over to the respondent at any point of time or that any prints remained with the respondent. The complainant has nowhere stated on what particular date, the trials of the film were arranged for the respondent, what arrangement was made by him for showing the film to the respondent and who was operating the instrument. Nowhere in the complaint, it is stated that the accused obtained copy of the cassette of the said film or retained a copy of the cassette of the said film without his consent. The complainant is totally silent on this aspect. 5. One very vital aspect of this mater is that the telecast were on 26.11.1997 and 22.01.1998. However, the complaint has been lodged after a lapse of about two years. This delay is inordinately long and the complaint is totally silent on this aspect of delay. 6. The case of the petitioner is that by telecasting the film on 26.11.1997 and 22.01.1998, the respondent contravened the provisions of section 52-A and 63 of Copy Right Act, 1957 and the same has been done by the respondent knowingly. It is submitted by the learned advocate for the respondent that to attract the provisions of section 63, the person must have knowledge of the fact. The case of the complainant 1.WP1417-01 5 appears to be that the respondent infringed or abetted infringement of the Copy Right Act of the film knowingly. While dealing with section 53 of Copy Right Act,1957, we have to see whether in fact the respondent / accused deliberately, knowingly infringed or abetted the infringement of the copy right. It is the contention of the petitioner that there was no direct contract between him and Zee Telefilms Ltd whereas the case of the respondent is that he is not the chairman of this Zee Telefilms Ltd. The learned counsel for the petitioner submitted that it is Zee Telefilms which telecast the movie and respondent has nothing to do with Zee Telefilms. 7. It is an admitted fact that initially the rights of the movie of film "Jan Se Badhkar" were assigned to Mr. Amol Borde by "Shivalik Films" of which the petitioner is a proprietor, which fact was also published in the film Trade Magazine. A public notice also came to be issued that Mr. Amol Borde had acquired perpetual electronic media rights including Satellite Broadcasting Rights of the film "Jan Se Badhkar" from M/s Shivalik Films and that the said Amol Borde assigned the rights in favour of M/s. Cinceo and M/s. Cineco assigned its rights to M/s. Priyadarshani Cine Products and M/s. Priyadarshani Cine Products, in turn, assigned its rights to EL Zee televisions Pvt Ltd under agreement dated 1.WP1417-01 6 13.03.1996 for consideration of Rs. 9,00,000/- which was vide cheque no. 172942 dated 17.04.1996 for Rs. 3,00,000/- and cheque no. 172986 dated 30.04.1996 for Rs. 6,00,000/- drawn on Bank ANZ Grindlays. All these facts show that the respondent purchased the rights of the movie, in a legal manner. Looking to the facts published in the Trade Magazine and the notice about Mr. Amol Borde acquiring perpetual electronic media rights, there was no question of petitioner knowingly infringing or abetting the infringement of copy right of the film "Jaan Se Badhkar". In the facts of this case, view taken by learned Sessions Judge that the respondent did not knowingly infringe or abet the infringement of the copy right of film is a reasonable and possible view. Hence, I am not inclined to interfere in the judgment and order passed by the learned Sessions Judge. In view of above, rule is discharged. [SMT. V.K. TAHILRAMANI, J.] 1.WP1417-01 7 1.WP1417-01