IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.20755 OF 2008 SURENDRA MALLIK @ SURENDRA KR.MALIK, RESIDENT OF 2/35, ANSARI ROAD, POLICE STATION DARIYAGANJ, NEW DELHI-110002 VERSUS 1. THE STATE OF BIHAR 2. ARVIND KUMAR SINGH, SON OF LATE RAM SEWAK SINGH, RESIDENT OF ARYA KUMAR ROAD, DINKAR BHAWAN, POLICE STATION KADAMKUAN, DISTRICT PATNA ………………………………………………………………………..OPPOSITE PARTIES ********* FOR THE PETITIONER :- MR. ANIL KUMAR SINGH, ADVOCATE MR. SURINDER KUMAR, ADVOCATE FOR O. P. NP. 2 :- NONE FOR THE S T A T E :- MR. JHARKHANDI UPADHYAY, A.P.P. **************** 3 09/04/2010 This matter was heard yesterday and was adjourned in order to given an opportunity to the counsel for the Opposite Party No. 2 whose appearance was entered in this case to assist the Court. Counsel for the petitioner informed Mr. Braj Nandan Singh that this case would be taken up today, despite that, Mr. Braj Nandan Singh, one of the Counsels for the Opposite Party No. 2 has not appeared today in this case. Heard learned Counsel for the petitioner and the A.P.P. appearing on behalf of the State. This application has been filed challenging the order dated 14.05.2007 passed in Complaint Case No. 774 (C) of 2007 by which the Judicial Magistrate, 1st Class, Patna has taken cognizance against the petitioner for the offences under Sections 406, 420, 467, 468 & 471 of the Indian Penal Code. The complainant is the grandson of Late 2 Ramdhari Singh `Dinkar’, a recognized and nationally acclaimed author. A complaint case has been filed by Opposite Party No. 2/complainant in which it has been alleged that accused no. 1 i.e. the National Publishing house through its proprietor K. L. Mallik, Surendra Mallik, accused no. 2 (petitioner) and Mayur Paper Back, Proprietor Surendra Mallik have entered into an agreement dated 01st May, 1986 executed at Delhi by which there was an agreement that any books published by the accused persons written by Late Dinkar would only be published subject to payment of 15 per cent royalty. The said agreement was for five years which expired on 01.05.1991. The photocopy of the agreement has been filed in Court. It is alleged that the three accused persons were publishing books after five years and are not paying royalty to Opposite Party No. 2. With respect to the aforesaid allegations, a case was filed in the Delhi High Court under the Original Civil Jurisdiction being Suit No. 1737 of 1997. The matter was referred for arbitration and Shri L. M. Singhvi was appointed as the sole Arbitrator and he gave his award in the year 2000. The said award has been challenged in the High Court at Delhi. The petitioner Surendra Mallik who happens to be the proprietor of the Mayur Paper Back and also National Publishing House 3 has appeared in this case. Now, a case has been filed in the Court of the Chief Judicial Magistrate, Patna containing the same allegations and suppressing all the facts with respect to the case which had transferred at Delhi. It is said in the complaint petition that the petitioner is liable to be punished under the Copy Right Act of 1957. After considering all the facts, it is apparent that the entire case arises out of an agreement executed in the year 1986. Once, the parties have entered into an agreement, it cannot be said that they would also be subject to criminal liability specially in the facts of this case, where the parties are already litigating with each other with respect to the same issues in the Delhi High Court. In my opinion, the allegations in the complaint petition are vague. If the complainant wishes to indicate that the petitioner either in the capacity of the proprietor of the National Publishing House or in the capacity of the proprietor of Mayur Paper Back, has published books after the cut off period, would require that the complainant to have given or annexed some relative facts in the complaint petition. Infact, nothing has been said in the complaint petition except to say that books were published beyond the cut off period of the agreement. 4 On the other hand, Counsel for the petitioner submits that he has categorically stated in this application that he has not published any book beyond the cut off period of the agreement and the books that are being sold in the market are the stocks of books which were published before the expiry of the agreement period. In any event, regarding the agreement, the basis on which this complaint has been filed, is pending before the Delhi High Court. This Court does not find any criminal liability in the facts of this case to make the petitioner liable for prosecution under Section 406, 420, 467, 468 & 471 of the Indian Penal Code. The complainant has taken recourse to the remedies available to him at Delhi. I also find that since the basis on which the case has been filed on the basis of an agreement executed at Delhi, it also becomes doubtful whether the Court at Patna would have the jurisdiction over this matter. However, since the Court finds the case involves civil liabilities, I do not propose to go into the matter of jurisdiction in detail. Accordingly, the impugned order dated 14.5.2007 is hereby quashed. In the result, this application is allowed. Anand ( Sheema Ali Khan, J.)