Karnataka High Court
S Somashekar S/O M Srinivasan vs State Of India By Cbi/Acb on 6 July, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.161 OF 2010
BETWEEN :
1 S.Somashekar,
Son of M.Srinivasan,
Residing at No.267,
5th 'C' Cross,
4th Main, H.A.L. III Stage,
Bangalore.
2 Krishna Gowda,
Son of Mayanna Gowda,
Turuvekere Taluk,
Gottekare, Tumkur,
Present Address,
No.267, 5th 'C' Cross,
4th Main, H.A.L.-III Stage,
Bangalore. ...PETITIONERS
( By Shri. Ravi B Naik, Senior Advocate for Shri.M.N.Nehru, and
Shri. Hemachandra r.Rai, Advocates for M/s. M.N.Nehru and
Associates )
2
AND:
State of India by
C.B.I./ A.C.B.
Bangalore. ...RESPONDENT
( By Shri. C.H.Jadhav, Advocate )
*****
This Criminal Revision Petition is filed under Section 397 and
read with Section 401 Code of Criminal Procedure, 1973, by the
advocate for the petitioners praying to set aside the judgment dated
26.3.2008 passed by the XVII Additional Chief Metropolitan
Magistrate , Bangalore in C.C.No.32635/2006 and the order dated
26.11.2009 passed by the XXI Additional City Civil and Sessions
Judge and Special Judge for CBI Cases, Bangalore in Criminal
Appeal No.330/2008.
This Criminal Revision Petition is coming on for Hearing, this
day, the court made the following:
ORDER
Heard the learned Senior Advocate Shri Ravi B.Naik, appearing for the petitioners and the learned Counsel for the respondent.
2.The facts are as follows:
The petitioners were accused nos.1 and 2, respectively, before 3 the court below. It was the case of the prosecution that petitioner no.1 was a producer of films and he had entered into a contract with the Doordarshan Kendra, Bangalore, as a proprietor of M/s Srinidhi Communications, to produce a tele-film in terms of the agreement at Exhibit P.49. In terms of the agreement, the said accused was to produce a tele-film and it was to be shot in Beta Cam format. It was also agreed that upon delivery of the commissioned programme material to the Prasar Bharathi Broadcasting Corporation of India, which was the principal of the Doordarshan Kendra, Bangalore, it would have all the perpetual copyrights, distribution rights and other proprietary copy rights, including rights in the negative prints, scenes, stills, settings, sound, dialogues and all other rights, whatsoever, in respect thereof including State, National and International awards and marketing and whatever rights irrespective thereof and that the accused-petitioner would have no rights in the commissioned programme or any part thereof or in the aforesaid materials and he shall not re-produce or use in any other manner, the whole or part of 4 the picture including its scenes stills, dialogue music and setting etc., directly for himself or for any other persons. It was also necessary that the petitioner alone shall, in consideration of the payment to be made under the agreement, write script, shoot, direct, produce, edit, title and in all respects complete the programme in six months.
3. It was the allegation of the prosecution that in variance and in clear violation of the agreed terms, petitioner no.1 had entered into an unholy conspiracy with petitioner no.2 and it was predetermined by them that the film could be shot as a feature film. Thereafter, the same was dubbed in Beta Cam cassettes and it was this content which was handed over to the Doordarshan Kendra, Bangalore as a completed programme by accused no.1 and he had received complete consideration in terms of the agreement for having delivered such dubbed programme. Parallelly, the feature film, which was produced and from which a copy was made and handed over to the Doordarshan Kendra, as if it was the commissioned programme, was later 5 developed and used by petitioner no.2 for his own use and release for commercial purposes and had also approached the State Government seeking subsidy having regard to the content of the film and the State Government had, on scrutiny, approved such an application and granted a subsidy of Rs.10.00 lakh.
4. The complainant, on having learnt of this act of conspiracy and the fraudulent use of the film by the petitioners, in the manner as aforesaid, had instituted proceedings. After completion of the investigation, a charge-sheet was filed against the accused for offences punishable under Sections 120-B, 468, 471 and 420 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC' for brevity). The petitioners had entered appearance and had pleaded not guilty and claimed to be tried. The prosecution had thereafter examined 32 witnesses and had produced Exhibits P.1 to P.94 and marked Material Objects - Mos.1 to 10.
5. On consideration of the said evidence, the material on 6 record and the rival contentions put-forth at the trial, the court below had framed the following points for consideration:-
1) Whether the prosecution proves that, on the above said date, time and place, accused No.1 and 2 entered into criminal conspiracy to cheat Dooradarshan Kendra, Bangalore and Department of Information, Government of Karnataka to the tune of Rs.7.40 Lakhs and Rs.10 Lakhs respectively and thereby both accused persons have committed offence punishable under Section 120-B IPC?
2) Whether the prosecution proves that, on the above said date, time and place, accused No.1 and 2, in furtherance of their criminal conspiracy, submitted false information to Dooradarshan Kendra, Bangalore and Department of Information, Government of Karnataka and thereby both accused persons have committed offence punishable under Section 468 IPC?
3) Whether the prosecution proves that, on the above 7 said date, time and place, accused No.1 and 2 in furtherance of their criminal conspiracy submitted false information to Doordarshan Kendra, Bangalore and Department of Information, Government of Karnataka, knowing fully well that, the documents submitted by them are not genuine and that, A-1 and A-2 have converted feature film 'Amaasa' into telefilm 'Amaasa' with an intent to cheat Dooradarshan Kendra, Bangalore and Department of Information and thereby both accused persons have committed offence punishable under Section 471 IPC?
4) Whether the prosecution proves that, on the above said date, time and place, accused No.1 and 2 in furtherance of their criminal conspiracy, have cheated Dooradarshan Kendra, Bangalore and Department of Information, Government of Karnataka to the tune of Rs.7.40 Lakhs and 10 Lakhs respectively by submitting forged documents as genuine and by converting feature film 'Amaasa' into telefilm 'Amaasa' and thereby both accused persons have committed offence punishable under Section 420 IPC?8
5. What order?"
6. The trial court answered all the points in the affirmative and consequently convicted the petitioners for an offence under Section 120-B of the IPC and sentenced them to pay a fine of Rs.2,000/- each and directed each of them to undergo simple imprisonment for six months. They were also convicted for an offence under Section 468 of the IPC and sentenced to pay a fine of Rs.2000/- each and to undergo simple imprisonment for six months each. They were also convicted for an offence punishable under Section 471 of the IPC and sentenced to pay a fine of Rs.2,000/- each and to undergo simple imprisonment for six months each. Similarly, they were sentenced for an offence under Section 420 of the IPC. The sentences were to run concurrently. The total fine payable was Rs.8000/-. The same having been challenged in appeal, the appellate court has confirmed the 9 judgment of the trial court.
It is that which is under challenge in the present petition.
7. The learned Senior Advocate would point out that having regard to the sequence of events, it is not in serious dispute that the agreement between the first petitioner and Doordarshan was dated 17.3.2003. The film was shot with the assistance of petitioner no.2 and was well within the knowledge of authorities of Doordarshan as one of its Assistant Directors was also engaged to direct the film and were all along aware that the film was being produced as a feature film and thereafter, was converted to Beta format and handed over as per the terms of contract on 5.9.2003. The contractual obligation under the said contract was completed as on 5.9.2003. Thereafter, the feature film having been released for public consumption as on 16.4.2004 cannot be said to be a criminal act on the part of the petitioners, as there was no bar for petitioner no.2 to have released the feature film, after the tele-film in Beta format having been handed 10 over by petitioner no.1 to Doordarshan in satisfaction of the contract. Even if it can be contended that the contents of the tele-film produced for Doordarshan being an adaptation of the same or copy of the same, though there is a variance in the duration of the tele-film and the duration of the feature film, it would at the worst be breach of contract and could not be characterized as a criminal offence. In this regard, he would further contend that the very provisions of law invoked cannot be pressed into service at all. In this regard, he would draw attention to the definitions of the several offences that have been alleged against the accused and he would point out that insofar as 'cheating' is concerned, as defined under Section 415 of the Indian Penal Code, the acts alleged against the petitioners are not consistent, in that, the conduct alleged against the petitioners does not fit into the four corners of the definition of 'cheating' as contained in Section 415 of the IPC. As there is no fraud or dishonesty that is apparent from the conduct as stated above insofar as the sequence of events are concerned, that there is no misuse of the position by petitioner no.1 in 11 having undertaken to produce a tele-film and the same having been delivered to Doordarshan as on 5.9.2003. Therefore, the subsequent act of petitioner no.2 having produced a feature film of the same and having also obtained subsidy from the State Government is not done in a surreptitious manner. The tele-film had been publicly broadcast and it is inexplicable that the prosecution claims that there was a fraudulent act in having produced the feature film and having claimed subsidy on the same. On the other hand, throughout the production of the tele-film, as already stated, the officials of Doordarshan were fully aware of the film being produced and the active involvement of both the petitioners in the production of the same. Therefore, the allegation that there was fraudulent conduct on the part of petitioner no.1, as he had never discharged the obligations under the contract since he was alone required to write script, shoot, direct, produce, edit, title and complete the programme, holds no water.
Further, he would point out that the offence of 'forgery' which is alleged in terms of Section 468 of the IPC is also not tenable as the 12 allegations would seek to make out a case of piracy or illegal copying of the content that was the subject matter of the tele-film and could not be characterized as 'forgery' which is contemplated under the said provisions, which is relatable to a document or such other instrument and could not be relatable to the work of film production as such. Therefore, the very section would not be applicable insofar as the allegation is concerned. Similarly, when the offence sought to be made out is clearly in the arena of a civil dispute, the prosecution seeking to make out a criminal case out of the same is impermissible, especially in the light of the circumstance that the Doordarshan or the Government of India have not alleged that loss has been caused on account of the acts complained of and it is on the initiative of the Central Bureau of Investigation of its own motion, that criminal proceedings have been initiated. Even as on date, there is no proceeding initiated by any authority or body seeking recovery of losses or damages against the petitioners. In that light of the matter, it was clearly an adventure embarked upon by the CBI for reasons best 13 known to itself, there is also no source information disclosed as to what prompted the prosecution to initiate the proceedings. Therefore, the learned Senior Advocate, while placing reliance on the following authorities, would submit that it was clearly a witch-hunt in respect of a clear civil dispute in having initiated criminal proceedings.
1. Dalip Kaur & Others Vs. Jagnar Singh & Another (AIR 2009 SC 3191),
2. V.P. Shrivastava Vs. Indian Explosives Limited and Others ((2010) 10 SCC 361)
3. V.Y. Jose and another Vs. State of Gujarat and another ((2009) 3 SCC 78) The courts below have completely overlooked these aspects of the matter in proceeding to accept that there was fraudulent intention and complicity between the petitioners in successfully defrauding the Doordarshan, while there is no loss caused whatsoever, even 14 according to the officials of the Doordarshan and hence, the Senior Advocate would seek that the petition be allowed and the judgments of the courts below be set at naught.
While the learned counsel for the respondent would vehemently contend that the agreement, that is referred to by the learned Senior Advocate, would itself indicate that there was no possibility of the petitioners utilizing the film in any manner to the detriment of the Doordarshan. Notwithstanding that there is no complaint of any loss occasioned to Doordarshan, the agreement clearly bars petitioner no.1 from utilising any portion or part of the film in categorical terms. The contention that the same was produced as a feature film in the first instance and thereafter has been dubbed into Beta format and handed over to Doordarshan and that petitioner no.2, with the assistance of petitioner no.1, were free to produce the feature film of the very content and to utilize it for a commercial purpose, is a gloss sought to be placed on the agreement. This was clearly impermissible. Therefore, from inception, if it was petitioner no.2, who had produced 15 and directed the feature film, it was well within the intention of petitioner no.1 to defraud the Doordarshan and it is this element of intention, which would clearly make it fraudulent and would bring within the scope of Section 415 of the IPC, as the dishonest intention is the sine qua non of the said Section and that being apparent on the admitted statement of petitioner no.1 that the feature film was produced by petitioner no.2 from inception albeit within the knowledge of the officers of the Doordarshan, is besides the point. The fact remains that in total violation of the agreement and with a fraudulent intention, whereby petitioner no.1 was fully aware that he would not direct the film, had permitted petitioner no.2 to produce the feature film and the same having been dubbed into Beta format and handed over to Doordarshan is clearly a premeditated act on the part of petitioner no.1. Further, when the property was that of Doordarshan, the same having been utilized by petitioner nos.1 and 2 for the production of a feature film and the commercial utilization of the same, besides also securing subsidy on the same, is clearly a 16 fraudulent act which would implicate them whole-hog. The further contention as to there being no forgery on the contention that the meaning assigned to forgery is limited to forgery of documents and other such instruments and a dubbed version of a film could not be construed as a forgery of the original, is also not significant, for as long as the conduct has been established, the choice of words would matter little in holding that the charges have been proved beyond all reasonable doubt. Therefore, the primary element of commission of a crime having been established, the fact that the petitioners would also be liable on the civil side, would not render it any less a criminal conduct and therefore, it is a case where both criminal and civil actions were permissible. The fact that the Doordarshan or any other body has not taken any such action, does not absolve the petitioners of the criminal conduct and hence he would submit that there is no case made out in the petition insofar as the concurrent findings as to the conduct of the petitioners having been found against them. 17
In the light of the above contentions, as rightly pointed out by the learned counsel for the respondent, it is clearly a case where there has been breach of contract giving rise to civil obligations and damages. However, the contracting party has not chosen to bring any such action for damages against petitioner no.1, who was clearly in breach in having utilized the tele-film for producing a feature film with the active co-operation of petitioner no.2. Since it is also evident from the record and as found by both the courts below that from inception, the petitioner no.1 has not taken any initiative in producing the film. It was always petitioner no.2 who was actively engaged in the production of the film, though as a feature film in the first instance and that the feature film had been dubbed in Beta format in satisfaction of the contract, which petitioner no.1 had entered into with Doordarshan. This conduct on the part of petitioner no.1 would certainly render his conduct as one bordering on fraud. The active participation of the officers of the Doordarshan throughout the production of the film is certainly a circumstance, which is not 18 explained by the prosecution. Since the prosecution is entirely the initiative of the CBI and since the witnesses for the prosecution, which included the officers of Doordarshan having explicitly stated that they were aware of the production of the feature film by petitioner no.2, would to a great extent leave much to be desired in the manner in which the prosecution has been carried out against the accused. It is this circumstance which queers the pitch of the prosecution in holding that the case has been proved beyond all reasonable doubt. It is certainly a case of breach of contract bordering on fraud insofar as the petitioner no.1 is concerned. And in the further conduct of the petitioners 1 and 2 in having marketed the feature film and also having been benefitted by way of obtaining subsidy in a substantial amount of Rs.10,00,000/-, the punishment imposed on the accused would necessarily have to be reconsidered. If indeed it was a surreptitious act on the part of the petitioners and if the criminal conduct was writ large, the officers of the Doordarshan could not have been unmoved and could not have tolerated the same without taking 19 action and added to the same, as contended by the learned Senior Advocate, there were other instances whereby such tele-films produced for the benefit of Doordarshan had been parallelly produced as a feature film without any demur from Doordarshan and it was that which prompted the petitioners also to act in the belief that there was nothing amiss in the feature film being produced and being utilized, when all along, it was to the knowledge of the Doordarshan. Therefore, the criminal intention and the fraud that is alleged would get watered down to a great extent. However, the fact remains that to absolve the petitioners of all blame, when there has been no action on the part of the Doordarshan in this regard, would yet require this court to address the circumstance that the contracting party was the Government of India and the monies paid over to petitioner no.1 was out of public funds and if merely on the inaction of the said authority, if no suit for damages or other proceedings for recovery has been undertaken, the petitioners going scot-free in respect of the irregularity, would certainly bother the conscience of the court. 20
Therefore, reconsidering the quantum of punishment that is imposed on the petitioners, this court deems it fit to balance the same by imposing a larger fine, while doing away with the punishment of imprisonment while restricting the imprisonment to a nominal degree and to impose fine, a substantial portion of which could be directed to be paid as compensation to Doordarshan Kendra, Bangalore. In order to offset the loss, the measure of damage is calculated on the basis of the subsidy received and if nominal interest on the said amount is calculated from the date of receipt and if that amount is imposed as fine and made payable as compensation under Section 357 of the Code of Criminal Procedure, 1973, to Doordarshan Kendra, Bangalore, the message is brought home to the petitioners and also serve the purpose of recovering the subsidy that may have been irregularly obtained by the petitioners.
Accordingly, the sentence imposed by the courts below in respect of several offences alleged under the various sections and the common punishment of imprisonment of 6 months imposed, shall be 21 reduced to the petitioners being detained before the trial court, on any working day, in the first week of August 2012, from the time of its commencement till the rising of the court and the petitioners jointly, shall pay a fine of Rs.15,00,000/-, in addition to the fine already paid and the said sum of Rs.15,00,000/-shall be paid as compensation to the Doordarshan Kendra, Bangalore. The fine shall be paid within a period of three weeks from today. In default of payment of fine, the sentence imposed by the courts below shall revive.
Sd/-
JUDGE nv