IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28-3-2011 CORAM THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI CRL.O.P.No.15718 of 2010 and M.P.No.1 of 2010 Hirachand .... Petitioner vs Dilip K. Shah .... Respondent Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein. For petitioner : Mr.A. Ramesh, Senior Counsel for Mr.M.A. Lakshmipathy For respondent : Mr.A. Raghunathan, Senior Counsel for M/s Shah & Shah ORDER By consent of both sides, the petition has been taken up for final hearing. The petition has been filed seeking a direction to call for the records in C.C.No.2464 of 2010 on the file of the learned XIII Metropolitan Magistrate Court at Egmore and quash the same. 2. The respondent has given a private complaint before the learned XIII Metropolitan Magistrate, Egmore, for an alleged offence under Sec.416, 420, 408, 499 and 500 IPC. The sum and substance of the complaint is as follows: 3. The complainant is one of the leading producer of cine films in Chennai. The petitioner approached the complainant for acquiring rights of a Hindi film "Delhi Darbar", a dubbed version of a Malayalam movie "Indraprastham". They entered into an agreement dated 7.9.2007 and by that agreement, the petitioner purchased the right of the said film for satellite and electronic media. It was agreed that the petitioner would pay a sum of Rs.2,71,000/- in two instalments viz., Rs.50,000/- at the time of the signing of the agreement and Rs.1,93,087/- against the delivery of Censored Print for transfer on loan basis. It was also agreed https://hcservices.ecourts.gov.in/hcservices/ that an irrevocable letter is to be issued in favour of M/s Prasad Laboratories Chennai. The clauses in the agreement is not relevant. 4. A sum of Rs.50,000/- has already been paid and the irrevocable letter, though has to be given only after the receipt of Rs.1,93,087/-, was given on 7.9.2007 itself. It is alleged that the petitioner represented that the said balance amount will be paid to the complainant within short time from the date of delivery of the said letter. The complainant further avers that the petitioner had made such a request and received the letter only with a malafide intention to cheat the complainant. Therefore, a private complaint has been filed. 5. Aggrieved by taking cognizance of the above said offences, the petitioner has filed the present petition before this Court on various grounds. 6. The sum and substance of the petitioner's version is as follows: 7. It is admitted that the petitioner approached the complainant for acquiring the Hindi Film "Delhi Darbar" for a sum of Rs.2,71,000/-, however, the petitioner has made the following payments: i) DD No:447308 dt. 07.07.2007 for a sum of Rs.50,000/- ii)Cheque No.874767 dt.06.11.2007 for a sum ofRs.8,000/- iii)DD NO.447770 fy.04.12.2007 for a sumof Rs.1,40,000/- iv)Amount paid to complete cinema(Rs.17500/-)Rs.8,750/- ___________ Total Rs.2,06,750/- ___________ 8. When the letter was issued to the Prasad Laboratories, the technicians informed the petitioner that the negatives have heavy patches and pin holes and the quality is below average and are not fit for telecasting. The complainant was not able to give a good quality negative as per the terms of the agreement. This was informed to the complainant immediately. There were series of communications between the parties however the complainant was not able to give a quality negative. The petitioner demanded repayment of the amount paid by him. A complaint was also made to the film and television Guild of South of India, where both of them are members. While so, the complainant has come up with the false complaint and no offence has been made out. 9. To strengthen this stand, Mr.A. Ramesh, learned senior counsel for the petitioner would submit that the petitioner has parted with huge amount to the complainant who has failed to comply with the agreement and therefore, the entire complaint is misconceived and nothing has been made out in the complaint for the alleged offences. The learned senior counsel narrated the entire https://hcservices.ecourts.gov.in/hcservices/ transaction between the petitioner and the complainant and submitted that the entire case is misconceived. The learned senior counsel brought to the notice of this court of various letters and e-mail transactions between the parties. 10. On the contrary, Mr.A. Raghuanthan, learned senior counsel who appeared for the defacto-complainant would submit that the complainant was made to part with the irrevocable letter in favour of the laboratory even on 7.9.2007. The learned counsel pointed out that the representation of the petitioner for a deferred payment was only with an intention to cheat the complainant and therefore, there is a deception at the beginning which constitutes an offence. The learned senior counsel also pointed out that instead of fulfilling his part of contract, the petitioner has chosen to malign the reputation of the complainant by giving complaint to the film and television guild of South India. He also pointed out that offences under Sec.420 and 499 IPC for cheating and defamation have been made out in the complaint and only during the course of trial, the factual matrix can be proved and the court cannot sift the evidence at this stage. 11. Heard and perused the materials available on record. 12. The petition is challenging taking cognizane of private complaint under sections 415, 420, 408 and 499 and 500 IPC. The admitted facts are that the petitioner and the complainant had entered into an agreement in relation to purchase of satellite and television rights of a Hindi Dubbed Movie "Delhi Darbar" The consideration was of a sum of Rs.2,71,000/-, out of which, Rs.50,000/- was already paid as per the agreement and out of the balance of Rs.2,21,000/-, a sum of Rs.27,913/- has to be deducted for tax and therefore, the petitioner has to pay a sum of Rs.1,93,087/-. On such payment, an irrevocable letter in favour of the petitioner addressed to M/s Prasad Laboratories, Chennai has to be given. The complainant has given such letter. However, the negative of the film was below average and not fit for telecast. Therefore, there were negotiations between the parties. 13. The disputed fact is that the petitioner has dishonestly induced the complainant to part with the irrevocable letter and has not paid the balance amount and he had also made a complaint to the Guild only to defame the complainant. 14. However, the petitioner would show the payment on various dates for a sum of Rs.2,06,750/- and since the negative was of poor quality the petitioner had demanded repayment and on failure, made a complaint before the Guild, where both the parties are members. https://hcservices.ecourts.gov.in/hcservices/ 15. The respondent has not denied the various payments shown in the affidavit. 16. The allegation in the complaint is that the petitioner had intentionally cheated and obtained the irrevocable letter without payment. Concededly, the irrevocable letter had not been acted upon as the negative of the film was of poor quality. 17. The fact is that the petitioner had made the payments various dates and has not received the negatives. A complaint to the Guild referring the dispute between the parties seemed to have made by the respondent and there was a conciliation. Accordding to the complainant this amount to defamation. The parties are members in the Guild. Admittedly the Guild is conciliate between the members. This will not attract the ingredients of Sec.499 IPC. It is also well settled that to attract the ingredients of section 415of I.P.C the fraudulent intention must be at the inception. The allegations do not constitute any offence much less than the offences noted in the complaint. Therefore, I am of the considered view that it is fit case to interfere by invoking the powers under section 482 of the code. 18. In the result, the criminal original petition is allowed and the proceedings in C.C.No.2464 of 2010 on the file of the learned XIII Metropolitan Magistrate Court at Egmore is quashed. Consequently, connected MP is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar sr To XIII Metropolitan Magistrate Court at Egmore Crl.O.P.No15718 of 2010 RK(CO) EU 20.4.11 https://hcservices.ecourts.gov.in/hcservices/