Judgment:
ORDER
I.M. Quddusi, J.
1. The present petition under Section 482, Cr.P.C. has been filed with a. prayer for quashing of the proceedings in. case No.945 of 1994 pending in the Court of chief Judicial Magistrate, Dehradun between State v. Krishna Rao Keshav under Section 403/406/420, I.P.C and Section 63 of Copyright Act arising out of case Crime No. 6 of 1989 under the aforesaid sections of police station Muni-ki-Reti, District Tehri Garhwal.
2. The brief facts giving rise to the petition are that respondent No. 2 namely. Swami Dayanand lodged a first information report against the applicant on 4-2-1989 at police station Mum-Ki-Reti district Tehri Garwal under the aforesaid sections. According to the altegations made in the first information report, an Agreement date i 10-12-1986 was executed between the complainant (respondent No. 2)and the accused (Appellant) at Shiv Nand Nagar, Muni-Ki-Reti, distriet Tehri Garhwal for production of an english film on the life and mission of Swami Sivananda on the occasion of his Birth Centenary celebrations The accused had agreed to Purchase the a remuneration of Rs. four lacs and also agreed to the negative of the film in the control of the respondent No. 2 at the place chosen by him. It was further alleged that the total cost of the film amounting to Rs. 3,90,000/- was paid to the applicant according to the terms and conditions of the Agreement. The accused had agreed to complete the film and deliver the English version within four months of the Agreement. He had also agreed to dub the film in Hindi and deliver one print (Hindi) at a cost of Rs. 55,000/-. It was also mentioned in the Agreement that negative right of the film will be controlled by the complainant but the accused deliberately with dishonest intentions the negative of the film as also the film in the case of Vijaya Laboratories Hyderabad and refused to hand-over the film and demanded a further amount of Rs. 2,50,000/- without any basis or reason and preventing the laboratories from making and delivering the print of the complainant and the applicant is guilty of criminal breach of trust and mis-appropriation. The applicant has also prevented the complainant of the copy right from exhibiting the film.
3. After investigation the police filed charge sheet in the Court of Chief Judicial Magistrate, Tehri Garhwal. The same was registered as case No. 490 of 1989. On 3 6-199! charges were framed by the Chief Judicial Magistrate against the applicant. It is significant to mention here that during the investigation the film reels and audio-cassettes were seized by the police from the office of the accused applicant at Hyderabad (Andhra Pradesh) and the following items were recovered :
(a) 9 film reels.
(b) I Photo Album Showing 150 photographs in respect, of the him and
(c) 240 Tape- recorded cassettes of Bhajan. During the course of investigation the statement of the witnesses under Section 161, Cr.P.C. were also recorded by the police. It is also necessary to indicate here that Clauses 13 and 14 of the aforesaid Agreement are, relevant for the decision of the case and, as such, they are quoted below :-
13. The negative rights, of the film will be controlled by she first Party.
14. The right of distribution for exhibition will be vested with the Firs? Party.
From the above there is no doubt that the film was the property of respondent No. 2.
4. The charges framed against the applicant are that the applicant without the consent of the respondent No. 2 (complainant) had shown the film publicly, while the accused could not use the film or convert the film in his own use for commercial show, dishonestly and thus committed the offence punishable under Section 406, I.P.C.; that the accused received Rs. 3,90,000/ from the Society (Society of the Complainant) and did not hand-over the film intentionally to the Society and thereby committed an offence punishable under Section 420, I.P.C. The accused in showing the film publicly without the consent of the Society committed an offence punishable under Section 63 of the Indian Copyright Act.
5. I have heard the learned counsel for the applicant Sri Manoj Misra learned counsel for She applicant, learned Additional Government Advocate for respondent No. 1 and Sri Gopal Subramaniam, learned Senior Advocate at length, and perused the record of the present petition. The contention. of Shri Manoj Misra is that before framing of the charges the present applicant moved an application before the learned Magistrate for not to frame the charges against him but the same was not properly considered. After framing of the charges the respondent No. 2 sought for the transfer of the case from the Court of Chief Judicial Magistrate, Tehri Garhwal to Dehradun to which the applicant did not oppose and during the pendency of the transfer application further proceedings in the Court of Chief Judicial Magistrate Tehri Garhwal were stayed and thereafter the case was transferred to Dehradun by this Court. In the Court of Chief Judicial Magistrate, Dehradun the case was registered as Criminal Case No. 945 of 1994 State v. Krishna Rao Keshav and in the year 1995 the present application was filed by the present applicant on the advice of this counsel at Dehradun. His further contention is that the proceedings against the applicant in the Court below amount to abuse of process of Court and are liable to be quashed under Section 482, Cr.P.C. by this Court. His contention is that the present case is purely of civil nature for which no criminal proceedings could be drawn and there was no dishonest intention of the applicant in retaining the film with him. Since the charges under Sections 403, 406 and 420, I.P.C. are all based on the action of withholding the film by the applicant and the said withholding was impliedly permitted by the Agreement (Clause 12) read with Sections 45, 46 and 47 of the Sales of Goods Act, therefore, no offence under the said sections can be said to have been committed. With regard to the charge under Section 63 of the Copyright Act, the learned counsel submitted that it is unfounded as Clause7 of the Agreement itself permitted to applicant to picturise, dub, music etc. for the purpose of completing the project and the charge sheet does not show that the exhibition of film was made to general public for money. The only evidence in possession of the prosecution is that the film was exhibited at Studios at Hyderabad. Moreover, the alleged offence under the Copyright Act had taken place within the territory of Andhra Pradesh, therefore, no Court in Uttar Pradesh could take cognizance of the said offence and only the Courts of Andhra Pradesh could have jurisdiction. He has cited the following authorities in support of his contentions :
(1) Kalidas v. Karamchand (1917) 18 Cri LJ 353 : AIR 1917 Lahore 335.
(2) Hari Prasad Chamaria v. Bishnu Kumar Surekha : 1974CriLJ352 ;
(3) Punjab National Bank v. Surendra Prasad Sinha : 1992CriLJ2916 ;
(4) Shyam Lachmandas Ajwani v. State of Maharashtra 1991 Cri LJ 970 (Bombay);
(5) Harnarain Sah v. Tribeni Lal 1973 Cri LJ 140 (Patna);
(6) R.K. Kothari v. Joshi Pharma 1989 All LJ 559;
(7) S. Subramanium v. State of Uttar Pradesh 1995 All LJ 1805;
(8) R.P. Kapoor v. State of Punjab : 1960CriLJ1239 ; and
(9) State of Haryana v. Bhajan Lal : 1992CriLJ527 ; and
(10) Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre : 1988CriLJ853 .
6. Sri Misra has further contended that the length of the film instead of 60 minutes was increased to 95 minutes and the only dispute which remains is about the payment of additional amount for the additional length of film. Since the additional length of the film was the real bone of contention between the parties and, as such, it could not be said that it was on account of the dishonest intentions of the part of the applicant. He has placed reliance on Clause 12 of the Agreement which impliedly permits the withholding of the film in view of the provisions of Sections 45, 46 and 47 of the Sales of Goods Act. Therefore, no offence under the said sections can be said to have been committed. He has also drawn my attention to the provisions of Section 47 of the Sales of Goods Act which, inter-alia, provides that the unpaid seller of goods who is in possession of them is entitled to retain possession of the goods until payment or tender of the price in the cases mentioned therein.
7. Sri Gopal Subramanium, learned Senior Advocate has raised preliminary objection that the petition under Section 482, Cr.P.C. is not maintainable in the facts and circumstances of the present case. He has further contended that on 27-4-1995 witnesses were present but the accused was absent and, as such, a non-bailable warrant was issued and the Court fixed 1-6-1995 but before 1 -6-1995 he rushed to this Court. He has also contended that there is wilful failure on the part of the accused to hand-over the film while 95 per cent of the agreed amount was received by him and thus the acts of the accused were intentional and dishonest and thus the offences mentioned in the charges framed against him have been made out. He has placed reliance on the recent Supreme Court decision in the case of Sri Ganesh Narayan Hegde v. S. Dangarappa (1995) 4 JT (SC) 142 : 1995 Cri LJ 2935 and a decision of this Court reported in the case of V. Kothari v. State of U.P. 1991 Cri LJ 1606 : 1991 All LJ 586. He has further contended that the facts which are disputed can only be ascertained after the appraisal of evidence and without recording the evidence it is not possible to come to a conclusion regarding the correctness or otherwise of those allegations and in these circumstances the present stage is not the appropriate stage to invoke the jurisdiction of this Court under Section 482, Cr.P.C. The case is pending at the stage of evidence and the sole aim of the applicant is to some how linger the prosecution.
8. In the case of Kali Dass v. Karam Chand (AIR 1917 Lahore 335) (supra), the Punjab High Court had held that where the accused was charged with the infringement of Copyright in a book of which the complainant was the Author, by printing it for sale at Lahore, without his permission, the Lahore Court alone had jurisdiction under Section 177, Cr.P.C. to enquire into and try the offence. The facts of that case are different from the facts of the present case. While dealing with Section 177, Cr.P.C. the provisions of Section 178, Cr.P.C. cannot be over looked. According to the statement of one T. Venugopal Reddy, recorded under Section 161, Cr.P.C. and filed by the present applicant through supplementary affidavit dated 14-2-1996, the present applicant had made a desire to produce the film at no profit no loss basis and the film was produced in the Ashram at Rishikesh and the accused is selling the cassettes in the market. However, at this stage no reliance can be placed on the statement of the witness recorded under Section 161, Cr.P.C. but for the purposes of considering the question of prima facie jurisdiction of the Court it became necessary to see the same and after perusing the same 1 am of the view that since part of the cause of action has arisen at Rishikesh the Courts in U. P. have jurisdiction to try and decide the offences under the Copyright Act.
9. In the case of Punjab National Bank v. Surendra Prasad Sinha : 1992CriLJ2916 (supra) it has been held by the Hon'ble Supreme Court that the action in terms of the contract expressly or implied is a negation of criminal breach of trust defined in Section 405 and punishable under Section 409, I.P.C. It is neither dishonest, nor misappropriation. However, in the instant case the charge is with regard to conversion of property into his own use by the accused dis-honestly and according to Clause 13 of the Agreement the negative rights of the film will be controlled by the complainant and according to Clause 14 of the Agreement the right of distribution for exhibition will be vested with the complainant and departure from this cannot come within the scope of the case law laid down, in Punjab National Bank's case (supra).
10. In the matter of Shyam Lachmandas Ajwani (1991 Cri LJ 970) (supra) the Bombay High Court has held that the provisions of Section 482, Cr.P.C. relate to the inherent powers of the High Court which are conferred upon the High Court to see that there is no abuse of the process of the Court, and if the allegations in the complaint taken as they are do not disclose any offence punishable under Section 403, 406 or 409, I.P.C. the mere fact that the petitioner participated in the proceedings before the learned Magistrate on nine occasions cannot come in his way in challenging the prosecution against him. In the instant case no such point is in consideration. There is no objection that because of the participation in the proceedings in the complaint case the applicant is debarred from moving any application under Section 482, Cr.P.C. However, it cannot be said at this stage that the complaint case is a case of no evidence.
11. The case of Harnarain Sah v. Tribeni Lal (1973 Cri LJ 140) (supra) of Patna High Court is a case in respect of availability of the alternative remedy is no bar. There is no dispute with regard to this proposition of law in this case and hence it is not necessary to discuss the same. Similarly the case of S. Subramanium (1995 All LJ 1805) (supra) is also on the same point as it is also not relevant.
In the case of R. K. Kothari v. M/s. Joshi Pharma, Lucknow (1989 All LJ 559) (supra) this Court has held that where the Firm entered into an Agreement for supply of clinical thermometers and deposited a sum of Rs. 2500/- with the Company and in pursuance of that Agreement the Company supplied thermometers and two consignment were found substandard and the firm returned the thermometers and filed complaint with the allegations that the Company have committed criminal breach of trust punishable under Sections 405, 406 and 409, I.P.C. The dispute between the parties was held to be of civil nature and they have not committed any breach of trust. The fact of this case are also quite different as in that case thermometers were received by the Firm but in the instant case negatives and cassettes have not been received by the complainant, and, as such, the law laid down in that case is not applicable in the instant case.
12. In the matter of R. P. Kapoor v. State of Punjab : 1960CriLJ1239 and Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandroji Rao Angre : 1988CriLJ853 (supra) it has been held by the Hon'ble Supreme Court that where the allegations are made against the accused persons but there is no legal evidence adduced in support of the case of the evidence adduced clearly or manifestly fails to prove the charge and the F.I.R. or complaint did not disclose the commission of any offence and make out a case against the accused and where in the opinion of the Court chances of ultimate conviction are bleak, no useful purpose is likely, to be served by allowing a criminal prosecution to continue, and the Court may while taking into consideration the special facts of a case also quashed the proceedings even though it may be at a preliminary stage. In the instant case I find no such ingredients by which the Court may come to the conclusion that on the basis of the, present material on record no case against the accused applicant is made out for the alleged offences punishable under Sections 403, 406 and 420, I.P.C. and Section 63 of the Copyrights Act.
13. In the case of Ganesh Narayan Hegde (1995 Cri LJ 2935) (supra) the Hon'ble Supreme Court has held that the High Court should interfere only where it is satisfied that if the complaint is allowed to proceed it would amount to abuse of process of Court or that interest of justice otherwise calls for quashing of the charges.
14. In the case of V. Kothari v. State of U. P., (1991 All LJ 586) (supra) the accused company entered into an agreement with the complainant for establishing a Dagasse Based medium Density Particle Board Plant, Laminating Plant and Thermo Oil Plant, the cost of which project runs into several crores of rupees. The accused were responsible for supply of equipment and materials according to specifications and according to the agreement it was the responsibility of the accused persons to correct and fix all the machinery, equipment and material according to the guaranteed performance parameters stipulated in the contract. Due to default of the accused persons the plant could not commence. On the facts of that case the complainant filed a complaint under Sections 420, 406 and 120-B, I.P.C. This Court relying upon the case of the Supreme Court in Madhavrao J. R. Scindia v. S. C. Angre : 1988CriLJ853 (supra) and the case of R. P. Kapoor v. State of Punjab : 1960CriLJ1239 (supra) held that taking the allegations as they are in the complaint and as they appear in the statement of the complaint and his witnesses none of the three clauses i.e. passing of an order to give effect to an order under the Code of Criminal Procedure or to prevent abuse of the process of Court or otherwise to secure the ends of justice is available to the accused-applicants. Mere filing of a civil suit or pendency of the arbitration proceedings by themselves would not absolve and Criminal Court of its responsibility to punish a guilty if from evidence the offences are made out.
15. In the matter of A.E. Rani v. V.S.R. Sharma : (1995)1SCC627 the Hon'ble Supreme Court has held that the High Court was not justified in quashing the proceedings on the ground that the dispute was of Civil nature.
16. In the matter of Central Bureau of Investigation, SPE, SIU (X), New Delhi v. Duncans Agro Industries Ltd. Calcutta : 1996CriLJ3501 the Hon'ble Supreme Court has held as under :.In our view, the expression 'entrusted with property' or with any dominion over property has been used in a wide sense in Section 405, I.P.C. Such expression includes all cases in which goods are entrusted, that is, voluntarily handed over for a specific purpose and dishonestly disposed of inviolation of law or in violation of contract. The expression 'entrusted' appearing in Section 405, I.P.C. is not necessarily a term of law. It has wide and different implications in different contexts. It is, however, necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. The expression 'trust' in Section 405, I.P.C. is a comprehensive expression and has been used to denote various kinds of relationship like relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee. When some goods are hypothecated by a person to another person, the ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in other person and the offender must hold such property in trust for such other person or for his benefit. In a case of pledge, the pledged article belongs to some other person but the same is kept in trust by the pledgee.
17. The instant case is at the stage of evidence and statement of the witnesses have not been recorded so far due to the interim order granted in the case and, as such, at this stage in the absence of any statement of any witness it cannot be said that it is a case of no evidence. While on the other hand, a perusal of the statements under Section 161, Cr.P.C. and other documentary evidence on record clearly make out a prima facie case against the accused-applicant. Taking the allegations as they are in the complaint and as they appear in the statement of the complainant and his witnesses none of the three ingredients i.e. passing of an order to give effect to an order under the Code of Criminal Procedure or to prevent abuse of the process of Court or otherwise to secure the ends of justice is available to the accused-applicant.
18. In view of the above discussions, I am of the view that the present is not a fit case for interference by this Court under Section 482, Cr.P.C. The application is accordingly rejected and the interim stay order is vacated.