Case: M/S Three Cheers Entertainment(P)Ld.&amp;Ors Vs. C.E.S.C.Ltd

3. Three Cheers Entertainment Pvt. Ltd. (the Company) is a producer of some programmes which are telecast.4. One of such programmes known as Khoj Khabar was telecast by ETV (Bangla) alleging some illegal acts and malpractices on the part of the Calcutta Electricity Supply Company Ltd., (CESC) an undertaking engaged in generation and supply of Electricity in the town of Calcutta.5. On or about 13.5.2004, CESC filed a defamation suit in the original side of the Calcutta High Court claiming not only damages of 25,00,00,000/- (Rupees twenty five crores only) but also a decree for permanent injunction. Along with the said suit, an interlocutory application marked as G.A.1812 of 2004 was filed claiming, inter alia, the following reliefsInjunction be passed restraining the respondents and each one of them by themselves or by their servants, agents or otherwise from publishing or causing to be published by broadcasting/telecasting any defamatory programmes similar to that as telecast on March 12, 2004 and March 29, 2004 and April 30, 2004 contained in Annexure A and B hereto or otherwise in any manner whatsoever.b. The respondents be restrained from re-telecasting and/or showing a repeat telecast of the programme khoj khabar shown on March, 12, 2004 and March 29, 2004 and April 30, 2004 at 10 pm and the respondents be directed to hand over the same.c. A receiver be appointed over all materials, documents, films, tapes and materials connected the said telecast khoj khabar made on March 12, 2004 and March 29, 2004 and April 30, 2004 at 10 pm and the respondents be directed to hand over the same.Indisputably, on or about 17.5.2004 a learned Single Judge of the High Court passed an ex parte ad interim order of injunction in terms of prayer a and b thereof only.7. It is now not disputed that although some lawyer had appeared for the appellants in the said suit but no Vakalatnama on their behalf was filed. It is furthermore not in dispute that the said lawyer appeared for a few days and thereafter stopped appearing in the suit or in the said or in the said interlocutory matter.8. Notices having been served upon the appellants, the matter relating to confirmation of ad interim order of injunction came up before the learned Single Judge of the High Court on 30.11.2005. While noticing that the defendants in the suit had not opposed the prayers of injunction, although they were earlier represented through counsel, it was opined that apart from the order of interim injunction as prayed for in prayers a and b of the interlocutory application, a receiver should also be appointed, holdingregard to the nature of the matter, I think the order of injunction will not subserve the interest of justice as there is possibility to telecast the same from programme recorded in this disc by the defendants and/or their agents and/or servants. In order to prevent further telecasting or propagating of this slanderous statement I am inclind to pass order in terms of prayer (c) of the petition. Accordingly, Mr. Subrata Mookherjee, Advocate of bar Association, Room No. 1 and Mr. Partha Pratim Chatterjee, Advocate of Bar Association, Room No. 2 High Court are appointed as Joint Receivers with a direction to take possession of all material documents, films and materials connected with the said programme. "Khoj Khabar telecast on 12th March, 2004, 29th March, 2004 and 30th April, 2004 at 10.00 pm and also copies of CD, if they are available in that office. The Receiver shall make an enquiry as to whether these cassettes have been distributed to any other person or persons and to whom and the person in charge and/or the director of the first defendant, are directed to disclose by making a statement before the Receiver whether any copy of CD has been distributed to any other person or persons in any manner whatsoever or not. This matter is otherwise disposed of.The learned receivers who were supposed to have taken prompt action failed and/or neglected do so. They did not visit the office of the company for taking possession of the relevant documents and the DV (wrongly stated in the order as CDs) immediately after the said order was passed. It is stated at the Bar that the time for filing a report was extended.10. Appellants, however, contend that on 11.1.2006 some representatives of CECS visited their office and asked them to handover all materials connected with the telecast. They were allegedly threatened that if the materials were not handed over, they would be in contempt.11. This stand on the part of the appellant is, however, denied and disputed by CESC.It now stands admitted that a copy of the said order was not served on the appellants. No copy of the order was sent to them by the respondent. Even the learned Joint Receivers did not intimate the appellant about their appointment.12. The Joint Receivers appointed by the High Court, however, visited the office of the appellant on 14.1.2006. They asked the appellants to hand over all the documents and CDs. As according to the appellants such documents had already been handed over to the representatives of the CESC, they expressed their inability to do so. Minutes of meeting were recorded which are to the following termsterms of the Honble Courts order, we approached Mr. Sanat Ray to handover the materials documents films connected with the said programme telecast on 12.03.2004, 29.03.2004, 30.04.2004 at 10 am and also the copies of the CDs and also enquired Mr. Ray regarding the CD whether the has or his representative has been distributed to any other person or persons in any manner.We Joint receivers asked Mr. Ray to hand over the CDs, films and materials for the above dates. Mr. S. Ray submits that they never telecast any news through CD, they used to telecast through Cassettes (DV).Mr. Ray further submits that they used to show the news programme by DV Cassette only. Not by any film or CD and they did not have any films or documents or master CD or Cassettes with him nor did he hand over did he has hand over to any one.All of us were taken to the Cassette Library by Mr. Ray, we thoroughly checked each cassette and films and other documents in the said cassette Library Rooms. In presence of the abovenamed person we did not find any CD of the above dates, films documents and cassettes. We have collected a new sealed cassette from the rack of the cassette Library. It has been submitted by Mr. Ray that they used to telecast their daily programme through such cassettes.We the Joint Receivers tried our best to get the CD and Cassettes, documents and films from Khoj Khabar Officer in presence of the plaintiff and their representative but found nothing.Mr. Ray further submits that on 11th January 2006 a group of four persons who identified themselves as officers of CESC and staff of Court came to Mr. Ray, and after showing the Order of the Court dated 30.11.2005 took away the Cassettes as Mr. Ray was perturbed he could not collect the names of the persons and record their identity. This has been done in presence of some staf of Khoj Khabar namely :1. Mr. Shankar Saha who maintains the daily telecast Register.2. Mr. Ratan Das who maintains the Car records.3. Mr. Rabi Shankar Saha, Assistant of Ratan Das, and4. Mr. Sambhu Ghosh, Chief Cameraman.However, Mr. Samar Ray lastly stated that he could recognize those aforesaid persons if he finds them.The matter was placed before the learned Single Judge on 18.1.2006. In view of the aforementioned minutes of meeting, appellant No. 3 herein (Sanat Kumar Ray) was asked to affirm an affidavit as regards the events which purported to have taken place on 11.1.2006. An affidavit was affirmed.14. In view of the said affidavit, vis-s-vis, the minutes of meeting prepared by the learned receivers and the stand taken by the respondent company herein, trial was ordered on the following issues by the learned Single Judge in terms of an order dated 15.3.2006Whether any CECS official visited the office of Three Cheers Entertainment Pvt. Ltd. as alleged in paragraph 6 or not?2. Whether material documents and material connected with the programme Khoj Khabar and CDs and cassettes were handed over by the said deponent, Sanat Ray CESC officials on 11 January,It is not in dispute now that having regard to the change in determination, the trial has begun before another learned Single Judge on and from 9.6.2006 and the same is yet to be completed.16. The contempt matter, however, keeping in view the provisions contained in Rule 5 and 6 of the Contempt of Courts (Calcutta High Court) Rules, 1975 was placed before the learned Single Judge who had passed the order dated 30.11.2005.17. The learned Judge proceeded to hear the contempt matter on affidavits filed by the parties although the trial on the aforementioned issues was incomplete.18. Each one of the alleged contemnors was held guilty of contempt of court on the premise that they have violated the directions issued to them to hand over the documents and DVD Cassettes and other materials to the Joint Receiver.19. Before taking note of the findings of the learned Judge, we may notice that in the contempt proceedings, the appellants, inter alia, raised the following contentionsexamination and cross examination were over on the aforesaid issues the present application for contempt has been taken out on 26th of September, 2006. I am told that issue has not been decided nor there is fact findings as to whereabouts of the DV (mother) cassettes. The present application has been made for willful and deliberate violation of the order passed by this Court on 30th November 2005 by not handing over DV (mother) cassettes and other materials to the joint Receivers.The plea of the appellants, therefore, was that even if they had committed an error in handing over the material and DV to the representative of the CESC rather than the joint receivers, it was a bona fide one. They tendered unconditional apology therefor.The learned Single Judge, however, as regards the plea of the Director of the Company heldmy view he should not have left Calcutta until the order was carried out or if he had any urgent business he should have approached this Court and asked for time for carrying out order. From analysis as above it no doubt establishes his deliberate and willful violation of the order of the Court. Therefore, I hold him guilty for committing contempt of the court as the DV (mother) cassettes were not handed over to the Jointregards, Shri Sanat Ray, it was opinedexamining the stand taken by the respondent No.4, I found that he is an over smart person and he has made all possible effort to outwit the officers of the Court if not Court itself. He is literate and English knowing person and having complete understanding of the purport of the order. In spite of that he had taken a stand at first that he allegedly handed over DV cassettes to CESC officials being accompanied by the Court officials, before Receiver and then in his affidavit filed in the contempt proceedings as well as the affidavit filed earlier point of time after the visit of the Receivers on 14th of January, 2006, he stated that he handed over the same to CESC officials. This version is unacceptable as none of the persons namely (1) Mr. Shankar Saha (2) Mr. Rattan Das (3) Mr. Rabi Shankar Saha and (4) Mr. Sambhu Ghosh, has come toward to corroborate testifying in Court that on 11th January 2006 CESC officials visited the office of the first respondent and respondent No.4 handed over the DV (mother) cassettes to them. The CESC officials have denied the fact of the visit on 11th January, 2006 which was a holiday. Thus, CESC officials have also stated on oath in the trial on evidence they did not visit on that date nor did they have any occasion to visit on that date the office of the respondent No.1 as they were enjoying holidays. It is stranger no suggestions was put to them by the learned counsel for Mr. Sanat Kumar Ray that they did visit on that date and DV (mother) cassettes were handed over to the CESC officials. Therefore, it is clear that a concocted story has been made out to justify their so called mistake in handingfar as the anchor, Krishna Kumar Mukherjee, is concerned, it wasfar as the respondent No.3 Krishna Kishore Mukherjee is concerned, I am of the view that he was also responsible to see that the materials are handed over in terms of prayer (c) to the Joint Receivers as the direction was also binding upon him. Had he had any difficulty he could have said this by filing affidavit that he is not connected with the affairs of the respondent No.1. He was the anchor of telecasting this programme so he had responsibility and should have taken at least some measure to help the Receivers to take possession of the DV (mother) cassettes remaining present before the Receiver. So his act and conduct amounts to aiding and abetting commission of contempt of Court. I hold him also guilty for committing contempt of this Court.An appeal in terms of Section 19(1) of the Act was preferred by the appellants before the Division Bench,Appellants became aware of the order of the Court dated 30.11.2005 whereby the joint receivers were appointed only on 10.1.2006 as the said order had admittedly never been communicated to the appellants, and thus, the question of any deliberate or willful violation thereof did not arise.2. The learned Trial Judge failed to appreciate that the respondents had admitted that they had not served any copy of the order to the appellant prior to 10.1.2006.3. The findings of the learned Single that appellant No.3, Sanat Roy, was over smart, literate and English knowing was uncalled for as he has only deposed before another Judge and, therefore the learned Judge had no occasion to note his demeanour.4. The learned Trial Judge furthermore committed an error in opining that none of the four persons who were allegedly present had come forward to corroborate his testimony, as the trial itself is incomplete.5. The finding that no suggestion was put to them by the learned counsel of Mr. Sanat Ray that some personnels had visited their office on that date and DV Cassettes were handed over to the CESC officials is incorrect and such suggestions, in fact, had beenDivision Bench of the High Court entered into the question as to whether the purported contempt committed by the appellant was a civil contempt or criminal contempt, which was not necessary.While affirming the judgment and order of the learned Single Judge, however, the Division Benchis well-known fact that the proceeding is only a form of execution and it appears to us that on the given facts, there is no criminality in the disobedience and the contempt, such as it is, is not criminal but the contemnors, in our opinion, excepting the appellant in APOT No. 126 of 2008, Krishna Kishore Mukhopadhyay, we hold that the Honble First Court correctly assessed the facts of the case and held that they have committed contempt of court.Hence, we do not find that there is any reason to interfere with the order so passed by the Court and after analyzing the decisions cited before us, we have not been able to find out any clear distinction between civil and criminal contempt and the contempt committed by the contemnors on the given facts cannot be broadly classified as criminal contempt.Hence, we uphold the said order and dismiss these appeal, save and except, in our considered opinion, on the facts of the case and the materials on record ad placed before us, we hold that a contempt in respect of the Krishna Kishore Mukhopadhyay cannot be proceeded with, since on the given facts, with utmost respect to His Lordship we come to the conclusion that the said Krishna Kishore Mukhopadhyay, being the appellant in the other matter (APOT No. 126 of 2008), cannot be said to be responsible to hand over the materials to the Joint Receivers. Since we are of the opinion that he had acted only on the date of presentation of the said news telecasted on the said date and, therefore, on the date of visit of the Joint Receivers at the said premises to collect the mother cassette, no role had to play by him to handover the said cassette to the Joint Receivers."

Reasoning:
The Division Bench of the High Court, with great respect, did not advert to any of the aforementioned contentions of theit was not necessary for us to advert to the subsequent events, Mr. Rao himself has sought to draw inspirations from the subsequent conduct of the parties impelling us to refer the same.If Appellants have been found to be guilty of commission of contempt, they should have been punished on the same day. Why the extra ordinary procedure of asking them to appear on another day for hearing on quantum of sentence was adopted is not understood. They had not been asked to purge their contempt. They made a voluntary statement that they would produce the CDs which should have been taken at its face value or should have been rejected.We also do not appreciate that a fine of Rs. 10,000/- was imposed upon the appellants by an order dated 22.8.2008 for the time being. We have not been shown any provision in the Act or any precedent that a court may impose sentences upon the contemnors in piece meal.So far as the submission of Mr. Rao that original cassettes have not been produced is concerned, we must notice that what was produced by the appellants was the CDs taken from (ETV Bangla). What has been produced before the learned Single Judge on 29th August were not the DV Cassettes which Sanat Rai stated to have been parted with onthe reasons aforementioned, the impugned judgment cannot be sustained. It is set aside. Consequently, the orders dated 30.11.2005 and 22.8.2008 are also set aside.The High Court, in our opinion, would be well advised to take up hearing of the suit as expeditiously as possible. If notice of suit has not been served upon the company, it may be done forthwith. The company may file its written statement, if not already done, within three weeks from theorders of injunctions in terms of Prayer a and b are in operation and CDs are already in possession of the court, we in exercise of our jurisdiction under Article 142 of the constitution of India direct that the contempt proceedings itself be dropped. The amount of fine deposited by the appellants should be refunded by the High Court forthwith.