Calcutta High Court
Dipti Pal And Anr. vs Dibyendu Sekhar Lahiri And Anr. on 10 December, 2004
Equivalent citations: 2006(1)CHN366
JUDGMENT Joytosh Banerjee, J.
1. The instant hearing arises out of an application under Sections 397, 401 read with Section 482 of the Code of Criminal Procedure.
2. Shortly put, the case of the petitioners are that they run a business of production of Bengali Films and Television Serials for a long period of 22 years. The O. P. No. 1 runs a small audio cassette company. When the complainant/O. P. came to know about the launching of a new venture in the name of "Tok Jhal Misti" a 500 episode Bengali mega serial to be made by the petitioners, he approached the petitioners to procure the rights of release of audio cassettes on usual business terms. It was then agreed by the parties to release the audio cassettes of the said Bengali serial on the basis of payment of royalty by O.Ps. in proportion to the sale of such audio cassettes. A contract was entered upon by the parties to the proceeding on 10.3.2000, for the aforesaid purpose. The O. P. paid a sum of Rs. 10,000/- as advance against royalty. It is further alleged, in the meantime two years already elapsed and the petitioners often enquired about the sale of audio cassettes of their serial and also for further payment and statement of accounts. But O. P., sat tight over the matter and did not make any payment towards further royalty. All on a sudden the petitioners got a notice of a criminal proceeding initiated by the O. P. under Sections 420, 120B, Indian Penal Code before the Metropolitan Magistrate, 15th Court, Calcutta with a copy of the complaint. It is contended that since the audio Dat Master of Bengali Television Serial, "Tok Jhal Misti" in respect of eight songs had already been supplied to O. P. No. 1 as per terms of the contract, agreed upon between the parties, there was no dishonest intention on the part of the petitioners to cheat, as they duly performed their part of contractual obligation. It is further alleged that the criminal proceeding which was initiated against the petitioners is absolutely frivolous, bad in law and in the aforesaid background the petitioners through the instant application, have prayed for quashing the complaint case being No. C/1642/02 pending before the Metropolitan Magistrate, 15th Court, Calcutta.
3. Only point for my consideration is, in the facts and circumstances of the case, should the proceeding of the complaint case as mentioned above, be quashed or not ?
4. It transpires from the copy of the petition of complaint, which is part of the record, that the complainant, the partner of Asha Audio Co., made the specific allegation that they agreed to release the songs of T. V. Serial 'Tok Jhal Misti' under their logo and on 1.3.2000, the accused No. 1 received a sum of Rs. 10,000/- from the complainant towards advance against royalty. The specific allegation of the complainant in respect of the offence of cheating is that for the purpose of manufacturing audio cassettes and C. Ds. the spool/ Dat Master of the songs were urgently required and on many occasions the complainant demanded from the accused persons to hand over the Dat Master/spool. But that was not done by the accused even after issuance of a registered letter, which was returned with a postal endorsement 'Not claimed'. In that background the complainant was compelled to go to the house of the accused persons and demanded the refund of the money paid. The accused persons on that occasion flatly refused to return the said amount and denied the entire transaction. It was alleged in the petition of complaint that had it been known to the complainant that the accused persons would not hand over the spool/Dat Master of 8 songs of the T. V. Serial, "Tok Jhal Misti' the complainant would not have made the payment of Rs. 10,000/-.
5. Learned Counsel for the petitioners, has submitted, that a civil dispute has been brought before a Criminal Court, as there is nothing to show that there was any criminal intent, when the accused received the payment of ten thousand rupees from the complainant O. P. No. 1 as advance against royalty for releasing eight songs of Bengali Tele Serial, Tok Jhal Misti'. It is further contended that Dat Master, containing eight songs of the said Bengali serial was received by the complainant as disclosed by the letter marked annexure-A. Learned Counsel for the O. P. No. 1, on the other hand has contended, that the accused petitioners made certain representations, on the basis of which the O. P. No. 1 paid Rs. 10,000/- towards advance royalty. But the petitioners even at the time of such payment had no intention to part with DAT containing eight songs of the aforesaid serial. It is further contended that the document marked annexure-A, was never signed by Mahua Lahiri partner of the firm and wife of the O. P. No. 1.
6. According to the case of the petitioners of the instant proceeding, on 1.3.2000, there was a contract between the parties wherein the complainant O. P. No. 1 agreed to act as an agent to the petitioners and would release audio cassettes of the aforesaid Bengali serial in respect of eight songs and would share a percentage of the sale proceeds of audio cassettes as commission and the complainant O. P. No. 1 paid Rs. 10,000/- as advance against royalty. In the petition of complaint, the complainant O. P. No. 1 also alleged about the payment of Rs. 10,000/- towards advance royalty, with a further allegation that both the accused persons (petitioners here) assured at the time that they would complete the project within two years i.e. by March 2002. It is further alleged that for the purpose of manufacturing audio cassettes and CDs, the spool/Dat Master were urgently required and accordingly on many occasions the petitioners demanded to the accused persons to hand over the Dat Master/spool. But the accused persons were delaying in handing over those articles on some flimsy grounds. Then on 21.8.2001, by a registered letter petitioners demanded the aforesaid articles. The registered letter sent in that connection, returned with a postal endorsement 'Not claimed', it is also alleged that on 20.3.2002, the petitioners were compelled to visit the house of the accused persons for demanding the money but they refused to refund the same and denied the entire transaction.
7. In this background, it is explicit that as per allegation raised in the complaint, money i.e. Rs. 10,000/- was paid to the accused persons, with a clear assurance that concerned spool/Dat Master of eight songs of the serial would be handed over to the complainant within few months (of the payment of money) and the whole project would be completed within two years of such payment. The petitioners through the instant proceeding did not dispute the payment of money by the complainant, O. P. No. 1 or the allegation raised in the petition of complaint, about the time within which spool/Dat Master of eight songs would be handed over to the complainant O. P., or time within which the entire project would be completed. But through the revisional application, the petitioners took the plea that on receiving a notice from the complainant the petitioners then and there sent the Dat Master of the audio cassettes of the Bengali serial containing eight songs and on receipt of such materials the partner of Asha Audio Smt. Mahua Lahiri issued a letter dated 10.12.2000, acknowledging the receipt of such articles (marked annexure-A to the petition).
8. Complainant/O. P. No. 1, by his affidavit-in-reply, has stated that the said Mahua Lahiri (alleged writer of the letter) is his wife and she has not written any such letter dated 10.12.2000, acknowledging the receipt of Dat Master of audio cassettes of Bengali serial 'Tok Jhal Misti'. He has further asserted that the said annexure 'A' being the purported copy of the said letter, is a fake and forged letter/of the said letter.
9. From above, we get, that the petition of complaint clearly discloses an offence punishable under Section 420, Indian Penal Code on the specific allegation that Rs. 10,000/- was paid towards advance against royalty in respect of eight songs of the Bengali serial "Tok Jhal Misti" and as per the allegation raised till the filing of the complaint, the accused persons failed to hand over Dat Master of the songs for the purpose of manufacturing audio cassettes. No doubt, a plea has been taken by the petitioners through the present application, that they sent the necessary Dat Master of the songs, which was duly received by one of the partners of the firm, but the said assertion has been stoutly denied by the opposite party No. 1, in his affidavit-in-reply. Therefore, the point raised by the petitioners cannot be decided by this Court, at this initial stage of the proceeding. The question being essentially a question of fact, the same can be decided by the Trial Court, on the basis of the evidence led by the parties. In this respect I should refer to the decision of the Apex Court in the case of Chand Dhawan v. Jawaharlal and Ors., reported in 1992 C Cr. LR (SC) 160. In para 8 of the case reported, the Hon'ble Court made the following observation:
In the present case, we have stated that the allegations in the complaint are specific and clear that during the subsistence of an earlier valid marriage the respondent Nos. 1 and 2 have entered into a second marriage and have thereby committed an offence failing under Section 494, Indian Penal Code. The complainant had affirmed that fact on oath. The two witnesses produced by the complainant before the Magistrate have supported that case. On the basis of the statement on oath of the complainant read along with the evidence of the two witnesses thus recorded and the materials available before the Magistrate to get himself satisfied that cognizance should be taken and process issued, the Magistrate was satisfied that an offence had been disclosed and accordingly the summons had been issued. The High Court was persuaded to take the view that the continuance of the proceedings would be an abuse of the process of the Court only on the basis of the additional materials produced by the respondents. The materials thus produced have not been admitted or accepted by the appellant. The truth or otherwise of the allegations in the complaint is a matter for proof. When the materials relied on by the respondent require to be proved, no inference can be drawn on the basis of those materials to conclude that the complaint is false. The High Court was not justified in assuming that the First Information Report had been lodged by the complainant/appellant solely because she had not filed any reply before the High Court denying the fact. It does not appear that sufficient opportunity was given to the appellant to do so. The affidavits of one of the persons who is stated to have performed the ceremonies would also be of no assistance in drawing any inference either way.
10. Thus, on consideration of the entire facts and circumstances of the case and materials on record, I hold that this is not a fit case, for quashing the proceeding. In the result, the application must fail. It is accordingly dismissed. Stay order, in respect of the further proceeding of the complaint case, stands vacated with immediate effect. Learned Metropolitan Magistrate is directed to dispose of the case at an early date. Let a copy of this order be sent down to the Court below for information and necessary action.