CRIMINAL MISCELLANIOUS No. 16770 OF 2004 ********** In the matter of an application under Section 482 of the Code of Criminal Procedure. ********** 1. VINODRAI A.DOSHI S/O SHRI AMARCHAND K.DOSHI, R/o 13/501, UTSAV BUILDING MAHADA COMPLEX, P.S. OSHIWARA, ANDHERI, MUMBAI. 2. GAURANG V.DOSHI S/O SHRI VINODRAJ A.DOSHI, R/O UTSAV BUILDING MAHADA COMPLEX, P.S. OSHIWARA, ANDHERI, MUMBAI --------------------------(Petitioners) Versus 1. THE STATE OF BIHAR 2. SHRI NAND KUMAR DAMANI S/O NAME NOT KNOWN MANAGING DIRECTOR, M/S DAMANI PICTURES PVT. LTD. AT SURYA APARTMENTS, FRASER ROAD P.S. GANDHI MAIDAN DIST. PATNA -----------------------(Respondents) ************ For the Petitioner : Manik Vedsen Adv. : Subhash Chandra Bose Adv. For State : Mr. Choubey Jawahar App. For the Oppt. Parties : None P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The petitioners seek quashing of the entire proceeding including the order dated 1.11.2002 passed by Judicial Magistrate Ist Class, Patna in complaint case no. 899 (C) of 2002, Trial No. 1609 of 2002 by which he - 2 - has taken cognizance under Sections 406, 410 and 120- B I.P.C. 2. On 10.8.2004 notices were issued to the opposite party no. 2 and in the mean while further proceeding in the court below was stayed. Thereafter on 7.12.2006 the application was admitted for hearing. Today even though the learned counsel for the petitioner is present none appears on behalf of the opposite party no. 2. 3. The case of the complainant, shorn of unnecessary details, is that allegedly the petitioners who are Proprietors of V.R. Pictures, Mumbai came to the complainant’s office and represented that they are producing a film which was sure to be a super hit and thereby induced and instigated him to acquire the distribution rights, for the territory of Bihar and Jharkhand to which he allegedly agreed. On 15.3.2002 an agreement of distributorship was signed between the parties by which the distributorship of the film was given to the complainant, but, all other rights pertaining to T.V., Cable, etc., vested with the accused persons, and they agreed not to exploit their rights for a period of one - 3 - year from the date of first theatrical release anywhere in India. Through a power of attorney dated 18.3.02 conferred upon the complainant the accused persons allegedly also agreed that the video rights for cable, T.V. etc., would not be given for commercial distribution/ exploitation in territories of India, Pakistan, Nepal and Bangladesh to any other party and would vest with the producer and would not be parted with till such time as it is permitted by the producers association and the BMPA. Thereafter, the complainant is said to have been shown various rushes of the film including a song, which he particularly appreciated. The song reportedly also created a craze among the public. As per the agreement the complaint gave Rs. 5,00000 (Five Lakhs) to the accused persons two weeks in advance before the date of delivery of total prints and on additional Rs. 2104752.31 for 25 prints and publicity materials was also paid. 4. The film was exhibited at various cinema halls of Bihar and Jharkhand on 5.4.2002 but to the dismay of the complainant he found that the film on VCD format was also being exhibited by cable operators on 6.4.02, - 4 - which had a different ending. He also found that certain songs and scenes which had appeared at the stage of advertisements were missing in the main film on account of which he and the general public felt cheated. He complained that initially the accused persons created confidence in him by promising to deliver the film in larger part in “consolation with the advertisements inserted by them” and thereafter deleted the said portions thus committing a fraud. 5. He also learnt through news paper items that the accused persons, to favour overseas distribution, had delivered a different film for overseas territory, which is unknown to the history in the world of cinema and since the accused had not taken him in confidence before departing with the prevalent custom, they had committed criminal breach of trust and cheating. The complaint alleged that the accused were in possession of the negative of prints and they alone were responsible for releasing the C.D. against the terms of agreement and by doing so had caused huge loss to the complainant. Since the C.D./V.C.D. version was better, the public preferred - 5 - the same to the film releaseed in the picture halls, which was exhibited with deleted scenes. For the aforegoing reasons the complainant prayed action against the accused persons for offences punishable under Sections 406, 420 and 120-B I.P.C. 6. It has been submitted on behalf of the petitioners that on going through the complaint petition no offence whatsoever is made out against the petitioner, much less under Section 406,420 and 120-B I.P.C. The submission is that the complainant had deposited a sum of Rs. 9.50 lakhs for distributorship prior to the agreement dated 15.3.2002 which is evident from the agreement and therefore it could not be said that any false representation had been made by the accused persons. It has further been contended that all payments were made to the accused persons only in terms of the bilateral agreement between the parties and therefore at this stage to allege that there was false representation on behalf of the accused persons is totally unbelievable. Furthermore, the grievance of the complainant that it was the accused persons who had supplied the film in VCD form played - 6 - by the cable operators was not only mere speculation but also absurd, since, as Producers the petitioners would have definitely been interested in the success of the film in the Cinema Halls. Also, it is well known that pirated version of films appear in the market, almost simultaneously, as the films exhibited in the Cinema Halls. 7. From the perusal of the complaint the main features of the case appears to be as listed below: (i) The accused persons approached the complainant with an offer of distributorship for a film on representation that the film would be a hit. (ii) An agreement was entered into between the parties on 15.03.2002. (iii) The important clause in the agreement was that the cable rights would be reserved with the producers for a certain time. (iv) The producers had full right to add or delete any portion of the film. (v) The film was released on 5.4.2002. (vi) Cable operator released VCD on 6.4.2002 (vii) Portions of films which were initially shown in the rushes were deleted. (viii) Different version of the film was released in the overseas market. - 7 - Examining the complaint in this background one must necessarily conclude that there can be no dispute that the petitioners as Producers of the film were bound to be of the opinion that the film they were producing would be a hit, since, had it not been so, there would be no question of them producing the film just for purpose of cheating the complainant. Therefore the petitioner’s representation to the effect aforesaid would be no offence as defined u/s 2 “n” Cr.P.C. (n) “offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Sec. 20 of the Cattle Trespass Act, 1871, (I of 1871) Further, in my view, once a person enters into an agreement, it would have to be invariably presumed that he had agreed to all that went before the agreement and the chapter would be deemed closed. Unless, it was obtained by fraud or it was amply demonstrated that post agreement, the accused had acted in a manner - 8 - demonstrating an element of cheating thereby making the subsequent actions referable to the acts pre- agreement. 8. In the present case, the complainant admits knowledge that the accused had reserved the right to delete or add any portion of the film and had agreed to it, as stated in para 12/13 of the complaint. “12. That the complainant submits that though it has been mentioned in the Agreement signed between the parties that the accused persons are entitled to add and/or delete any portion of the film. It is well understood that all those things are required to be done only in the interest the people and distributors so appointed in respect of the said film and not for the purpose of cheating any such distributor so appointed by them. The Complainant submits that under the guise of such averment inserted in the Agreement, the accused persons can never be permitted to play a fraud upon the complainant as well as the people at large. 13. That the complainant submits that it is well understood even by the people at large that advertisement of a - 9 - film is always being shown in order to attract the people at large by showing the particular advertisement, which is the short form or that is going to be shown in the entire film and under any circumstances, a producer of a film can never permitted to delete any such part which is appearing in the advertisements but is being deleted from the actual film as it not only amounts to a fraud upon the distributors so appointed but as also upon the people at large who had been instigated to watch the said film on the basis of the said advertisements”. 9. Under the circumstances, post-agreement, the act of deleting some portions in the film, after the advertisements, can by no stretch of imagination, be termed an offence of cheating, because the complainant had expressly agreed to it. Also unilateral departure from established tradition cannot make the petitioners criminally liable since, the element of mens-rea is a difficult deduction. However, much it may be a civil wrong or an irresponsible act. 10. As for the holding the petitioners responsible for the acts of the cable operators playing the film the very next - 10 - day of cinema release and with a different end is totally unjustified. It is well known, that cable operators acquire printed version of C.D. through multiple sources. In absence of any cogent material that it was the petitioners who had supplied the same, merely raising a speculation in this regard and expecting the petitioners to be put on trial on such speculation, will be a gross abuse of the process of Court. Significantly there is no evidence that the petitioners had entered into an agreement with any cable operator in violation of the terms of agreement between the petitioners and the complainant, and thus no offence under Section 406 I.P.C. also would be made out. 11. Therefore, in my understandings of the facts of the case, no offence whatsoever is made out against the accused persons and apparently the present complaint is nothing but a means to vent ire, of the complainant for having suffered loss in buying distributorship of a flop film. The complainant for his own vested interest has abused the process of the Court and launched this vexatious prosecution and should be adequately - 11 - penalized for having done so. The court below also, instead of just reproducing the entire complaint and misdirecting itself, should have applied its mind judiciously to the facts of the case before issuing summons thus jeopardizing liberty of the petitioners. In the result, the application is allowed and the order dated 1.11.2002 passed by the Judicial Magistrate Ist Class in Complaint Case No. 899 (C) 2002 (Tr. No. 1609/02) is hereby quashed. Further the complainant is directed to deposit a sum of Rs. 25,000/- with Distt. Legal Aid Committee, Patna for having abused the process of the Court. Let a copy of this order be communicated to the President, BMPA, Gagan Aptt. Patna, Exhibition Road, Patna. Patna High Court, ( Anjana Prakash, J. ) Patna Dated the 20th July, 2010 AFR/ Fahad.