* 1 * Cri.Appln. 1546.2010 30.11.2010 IN THE HIGH COURT OF JUDICATUARE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1546 OF 2008 Mega Bollywood Pvt. Ltd .....Applicant : VERSUS : 1. The State of Maharashtra (At the instance of the Assistant Commissioner of Police, D-1/S DCB, CID, Mumbai.) 2. Nazim Hassan Shamsu Zona Rizvi @ Rajasaab 3. Shankar Kamble, Court Receiver 4. Mr. Bharat Shah 5. Nine O Nine Entertainment 6. Madhu Entertainment & Media Pvt.Ltd .......Respondents * * * * Mr. V.V. Tulzapurkar, Senior Counsel with Ms. Chandana Salgaocar, Advocate for the applicant. Mr. J.A. Shaikh, APP for State-respondent no.1. Mr. Sayaji D. Nangre with Mr. Suraj Nangre, Advocate for respondent no.2. None for respondents no.3 and 4. Mrs. Renuka Laxmeshwar, Advocate for respondents no.5 & 6. * 2 * Cri.Appln. 1546.2010 30.11.2010 CORAM : - Smt. R.P. SondurBaldota, J. 30th November, 2010. P.C. :- 1. This Criminal Application filed under Section 482 Criminal Procedure Code seeks quashing of the order dated 18th March, 2008 passed in Misc. Application No. 722 of 2007 and the order dated 20th July, 2007 passed in Misc. Application No. 376 of 2000 by the Sessions Court, Mumbai. It is also prayed that the agreements dated 1st August, 2007 and 3rd August, 2007 executed by respondent no.3- the Receiver appointed by the impugned orders, be declared null and void. At the time of hearing of the application, Mr. Tulzapurkar, the learned Senior Counsel for the applicant stated that the said two agreements with respondents no. 5 and 6, now being on the verge of expiry, the applicant does not seriously challenge them and that the real concern of the applicant is about the agreements that may be entered into in future by respondent no.3, the Receiver. 2. Briefly stated, the facts giving rise to the present application are as follows :- . On the basis of the FIR lodged by API Temkar, an offence was registered with DCB CID vide C.R. No.112 of 2004 under Section 120B and Section 387 Indian Penal Code and under Section 3(1)(ii), 3(2) and * 3 * Cri.Appln. 1546.2010 30.11.2010 3(4) of The Maharashtra Control Of Organised Crime Act, 1999 (hereinafter referred to as the MCOC Act) against respondent no.2 ‘ (accused no.1), Abdul Rahim (accused no.2), respondent no.4 (accused no.3) and Ahmad Shamsuddin @ Batija (accused no.4) alongwith wanted accused namely Chota Shakeel, Anjum, Tarun Shah and Sadiqbhai. The complaint alleged that the accused persons entered into criminal conspiracy with Dawood Ibrahim Kaskar, head of organised crime syndicate who availed services of actors like Sharukh Khan, Rakesh Roshan, Hrithik Roshan with a view to gain undue pecuniary advantage by production and distribution of a Hindi film by name Chori Chori Chupke Chupke”. For that purpose the above “ actors were threatened and compelled to work for the film at low consideration. The film was produced by respondent no.2/accused no.1 under the banner of M/s. Emmar Films International. It was financed initially by respondent no.4/ accused no.3 and thereafter by the present applicant, M/s. Mega Bollywood Pvt. Ltd. For that purpose, agreements dated 14th April, 1999 and 21st October, 1999 were executed with them respectively. The agreement dated 14th April, 1999 with respondent no.4/accused no.3 granted sole, exclusive and perpetual copy rights in respect of the picture and all works comprised therein to respondent no.4/accused no.3 for consideration of financial assistance of Rs.2 * 4 * Cri.Appln. 1546.2010 30.11.2010 crores, free of interest. The agreement dated 21st October, 1999 granted identical rights to the applicant for consideration of financial assistance of Rs.10 crores, free of interest. Respondent no.2/accused no.1 had received financial assistance specified under both the agreements from respondent no.2/accused no.3 and from the applicant. Respondent no.4/accused no.2 is one of the Directors of the applicant company. 3. During the course of investigation, DCB CID had seized the negatives of the film Chori Chori Chupke Chupke” and reported the “ seizure under Section 457 Criminal Procedure Code. The complaint filed with DCB, CID resulted into MCOC Special Case No. 4 of 2001 which was decided by the judgment and order dated 22nd, 23rd, 24th , 25th, 26th and 30th September, 2003 convicting respondent no.2/accused no.1 and accused no.2 of the offences punishable under Section 120B read with Section 387 Indian Penal Code and under Section 3(1)(ii) and 3(4) of MCOC Act. Respondent no.4/accused no.3 was given benefit of doubt as regards the main offences. However, he was convicted under Section 118 Indian Penal Code. Accused no.4 was acquitted for want of acceptable and reliable evidence against him. The appeals filed against conviction by the two accused are pending in this Court for consideration. * 5 * Cri.Appln. 1546.2010 30.11.2010 4. During the course of investigation itself, the film was ready in all respects for release having been duly approved by the Film Censor Board with U/A Certificate for screening the same. Therefore, even before filing of the charge-sheet the applicant had filed Misc. Application No.1 of 2001 before the Special Court claiming rights in the film seized and prayed for appointing itself as Receiver for releasing the film. The application was disposed off by the Special Court by its order dated 12th February, 2001 after issuing public notice and after hearing the State Government. The Special Court took note of the fact that the negatives of the film had been seized under Section 102 Criminal Procedure Code and also of Section 20(2) of MCOC Act, 1999 which provides for forfeiture and attachment of the property either belonging to any person convicted under the Act or the property of which such person may be the beneficiary. The other persons claiming right to the film were, respondent no.1 as the producer of the film and respondent no.4/accused no.3, the financer. The Special Court found that apart from the producer and the financers, several other persons had a stake in the release of the film. It was of the opinion that there could be no impediment if the film was allowed to be released provided that the entire income that was to be received was deposited with the State Government and was kept at the disposal of * 6 * Cri.Appln. 1546.2010 30.11.2010 the State Government, subject to the final orders that may be passed at the conclusion of the trial. It observed that at that stage, the State appeared to be best entitled to hold the entire sale proceeds of the film provided that the State was willing to pay reasonable interest as payable by any nationalised Bank on fixed deposits, if the amount was required to be paid to any person at the end of the trial. Therefore, in exercise of powers under Section 457 Criminal Procedure Code read with Section 20(2) of the MCOC Act, the Special Court attached the entire tangible and intangible property in the film and directed one Mr. Sanjay Jain who was appointed Receiver to recover and receive sale proceeds of the film pursuant to its release. The Court Receiver was permitted to take possession of the negatives and para materia of the film under panchanama for the purpose of its exploitation, release and distribution. He was directed to receive from time to time all the amounts due and recoverable from the film distributors, exhibitors or the telecasters and deposit all amounts received by him in a bank by maintaining proper accounts. For that he was permitted to open an account in a nationalised bank. The amount so far received by the applicant, as well as, respondent no.4/accused no.3 on account of the film under the agreements executed with them respectively by respondent no.2/accused no.1 was also attached by the same order with * 7 * Cri.Appln. 1546.2010 30.11.2010 a direction to them to pay the amount so received to the Receiver who was to keep the same deposited in the same Account. Pursuant to this order, the film came to be released and its first exploitation took place. The Receiver had taken the necessary steps towards the distribution and release of the film. 5. Later, further directions came to be given in respect of the film at the time of final disposal of the main proceedings i.e. Special Case No. 4 of 2001. In its judgment passed on the main case, the Special Court took into consideration the agreements dated 14th April, 1999 with respondent no.4/accused no.3, the agreement dated 21st October, 1999 with the applicant and the contentions of respondent no. 2/accused no.1 in respect thereof. Respondent no.2/accused no.1 contended before the Special Court, which contention has been reiterated before this Court that though the agreement dated 21st October, 1999 had been executed with the applicant, the same has not come into effect as the further steps needed to be taken to make the agreement effective had not been taken. He however admitted receipt of financial assistance of Rs.10 crores from the applicant. On appreciation of the entire evidence before it, the Special Court, felt that the agreement with the applicant may be a bogus agreement executed only to mislead any inquiry or investigation by the police. It * 8 * Cri.Appln. 1546.2010 30.11.2010 therefore did not accept the claim of the applicant to the film and opined that, it was necessary, for the applicant to file proceedings in a competent civil Court to prove genuineness of the agreement between it and respondent no.2/accused no.1. The learned Judge held that the contention of the applicant, in respect of world rights control of the film, had to await decision of the competent civil Court in this regard. But, at the same time the Court thought it fit as an act of fairness to refund the amount to the financers alongwith interest. Accordingly the applicant, as well as, respondent no.4/accused no.3 have received together a total sum of Rs.12 crores alongwith interest thereon at the bank rate as ordered. Despite, the above specific observations of the Special Court, the applicant has not till date, even after expiry of 7 long years, filed any proceedings in the competent civil court to assert its rights under the agreement. 6. The agreements executed by the Court Receiver, Santosh Jain on 29th May, 2004 for exploitation of the film were for a period of 5 years. When the period of the agreement was about to expire, respondent no.2/accused no.1 filed Misc. Application No. 376 of 2007 before the Special Court seeking a direction that he be appointed Court Receiver in respect of the film. Being the producer of the film, he claimed that it was just and convenient that he be appointed as * 9 * Cri.Appln. 1546.2010 30.11.2010 Court Receiver to protect the satellite and other rights of the film. The applicant, herein had not been impleaded as a party to the application. The respondent-State appeared in the application and by the order dated 20th July, 2007 the Special Court appointed respondent no.3 herein, the retired Investigation Officer as the Court Receiver. He was permitted to execute agreements for the purpose of further exploitation of the film. The applicant then filed Misc. Application No. 722 of 2007 before the Special Court, for recalling of the order dated 20th July, 2007 essentially on two grounds. Firstly that the order was passed ex-parte, without notice to the applicant. Secondly that the order dated 20th July, 2007 was without jurisdiction as the Special Court had become functus officio with the final disposal of MCOC Case No. 4 of 2001 on 1st October, 2003. Besides, the convicted accused having filed appeal from the judgement and in view of the pendency of the appeals, this court was seized of the matter. Therefore, according to the applicant any direction as regards the property seized could be given only by this Court. This application came to be dismissed by order dated 18th March, 2009 which order is impugned herein. 7. Mr. Tulzapurkar, the learned Senior Counsel has taken me through the judgment and order in MCOC Case No.4 of 2001 and the Special Court’s order impugned in the present application. He * 10 * Cri.Appln. 1546.2010 30.11.2010 concedes in fairness that the applicant ought to have filed proceedings in the competent civil Court for establishing its rights under the agreement. He, however, submits that the order of attachment passed by the Special Court under Section 20 of MCOC Act could not have been extended to all the rights in respect of the film. The agreement executed between the applicant and respondent no.2 / accused no. 1 entitles the applicant to atleast 75% of the income from exploitation in perpetuity. Therefore the forfeiture and attachment under Section 20 could have been only in respect of 25% of the income from exploitation of the film. This argument can be available to the applicant only after he gets his right to the film under the agreement established by filing appropriate proceedings in a competent civil court. There can be no specific performance of the agreement in an indirect way via the present application. 8. Mr. Tulzapurkar, then submits that, it is possible even today for the applicant to file proceedings in a competent Civil court as there can be further exploitation of the film in future, even though some claim of the applicant in respect of the past exploitation may have become barred by the law of limitation. Even if that is so, until this step is taken by the applicant, it can have no say whatsoever as regards the exploitation of the film or the manner of its exploitation. * 11 * Cri.Appln. 1546.2010 30.11.2010 It has also been seriously agitated on behalf of the applicant, that the Special Court could not have passed the order behind the back of the applicant, particularly when the exploitation of the film by its release during the course of investigation was done only on the application filed by the applicant. No other party had come forward at that stage requesting for its release. Therefore, according to him, respondent no. 2/accused no.1 ought to have given notice of the application as regards the future exploitation of the film. I find no substance in the contention in view of the specific observations made in the judgment and order of the Special Court, raising doubt as regards the genuineness of the agreement in its favour. Therefore, until the applicant establishes genuineness of the agreement by adopting proceedings in a competent civil Court, there was no question of any notice being given to it. 9. The third contention raised on behalf of the applicant was lack of jurisdiction of the Special Court in considering the application once the special case was heard and finally disposed off and the High Court was seized of the matter. Mr. Nangre, the learned Counsel for respondent no.2/accused no.1 submits that application filed by respondent no.2 was in the nature of directions to be given under Section 452 Criminal Procedure Code. He submitted that the * 12 * Cri.Appln. 1546.2010 30.11.2010 directions as regards the disposal of the property can be given only by the trial Court and not by any other Court and as such respondent no. 2/accused no.1 had no choice but to approach the Sessions Court. Mr. Tulzapurkar, argues on the other hand that there could be no recourse to Section 452 Criminal Procedure Code since the directions given by the Special Court in its judgment and order were under Section 20 of MCOC Act. This argument is not supported by the record. The record makes it sufficiently clear that the property had been seized during the investigation and brought to the notice of the Court under Section 457 Criminal Procedure Code. 10. Mr. Nangre, for respondent no.2/accused no.1, submits that, the applicant has infact no locus-standi in the matter as it was not a party to the criminal proceedings and as such it could not have filed an application for recalling of the order on the application filed by respondent no.2/accused no.1. There is substance in the argument since the applicant could not have approached the Special Court with an application for setting aside the order passed on the application filed by respondent no.2/accused no.1 until it established its right by resorting to civil proceedings in a competent Court of law. In the circumstances, the application is rejected. 11. In view of disposal of the main application, Criminal Application * 13 * Cri.Appln. 1546.2010 30.11.2010 No. 571 of 2010 which is for interim reliefs pending the main application, does not survive. The same is accordingly disposed off. 12. Mr. Tulzapurkar, requests for continuation of the interim order dated 28th October, 2010. The request is rejected. [SMT. R.P. SONDURBALDOTA,J]