V SELLADURAI PROP LAXMI ENTERPRISE Vs. SRIDHAR

JUDGEMENT

(1.) This Revision is against the order of acquittal passed by XI Metropolitan Magistrate in C.C. No. 2137 of 1988 dated 9-10-1992 for the offence under Section 420 Indian Penal Code.

(2.) The prosecution case is that the revision petitioner herein, who was examined as P.W. 1, purchased the copyright of the Tamil Film 'Urimaikural' from the respondent accused, who was the producer, for a sum of Rs. 50,000/- on 5-7-1982 for exhibiting this film in Sri Lanka, without knowing that the copyrights of this picture was already sold to one M/s Nemichand Jabakh in the year 1976 and the revision petitioner came to know that he was defrauded by the respondent accused only when the National Film Development Corporation Ltd., (N.F.D.C.) refused to give permission for exporting the film 'Urimaikural' to Sri Lanka on the Ground that M/s Nemichand Jabakh had already acquired right over the film. The prosecution examined as many as 10 witnesses of whom P.Ws. 1 to 3 have spoken about the transaction between the revision petitioner and the respondent accused. P.W. 2 is the power of Attorney of the revision petitioner; who is having a company by name Laxmi Enterprises, for exhibiting the films and P.W. 2 has stated that he transacted as a power of attorney of P.W. 1, with the respondent accused on 5-7-82 for the purchase of the copy rights of the Tamil Film 'Urimaikural' for exhibiting in Ceylon for a consideration of Rs. 50,000/-. The evidence of P.Ws. 1 and 2 discloses that another film by name Ilamai Unjaladukiradhu' also was purchased by the revision petitioner for Rs. 35,000/- and the total consideration of Rs. 83,000/- for these two films was paid by cheques on four different dates. Exs. P.2 to P.5 are the stamped receipts for the payment of the amount under cheques. P.W. 6 is the Manager of Chitralaya Pictures, which belongs to the respondent accused and he has admitted that a cheque for Rs. 62,000/- issued by the petitioner was encashed by him and cash was handed over to the accused. P.W. 7 the branch manager of Bank of Madura of T. Nagar Branch has stated that two cheques each for Rs. 5000/- issued by Luxmi Enterprises, the company of the revision petitioner, were credited to the account of Chitralaya Pictures, the company of the accused. The accused also in his statement has admitted the payment of Rs. 50,000/- by the petitioner for the film 'Urimaikural'. P.W. 3 is a Publicity Agent and he has stated that it was he who arranged for the negotiation between the revision petitioner and the accused for the sale of the above mentioned two Tamil Pictures, for a consideration of Rs. 85,000/-. P.W. 3 also has stated about the payment of Rs. 85,000/- to the accused as consideration for the copy-rights of the two films. Now, we are concerned only with one film by Name 'Urimaikural' for which the respondent accused, the owner of the picture, has received Rs. 50,000/- from the revision petitioner.

(3.) As the revision petitioner has obtained exhibition rights for Sri Lanka, he could send the film only through N.F.D.C. Therefore he approached the N.F.D.C. in 1987 for permission, for exhibition of this picture in Sri Lanka. But the N.F.D.C. sent letter Ex. P.7 dated 25-3-87 informing that this picture had been already acquired by M/s Nemichand Jhabak by an agreement dated 17-3-76, and therefore they were not able to recognise the contract of the revision petitioner. According to the revision petitioner only after Ex. P.7 letter, he came to know about the fraud played upon him by the respondent accused and though on his request the accused promised to return the money, he did not do so and therefore he launched the complaint. The learned Magistrate has accepted the sale of the picture by the respondent to the revision petitioner under the agreement dated 5-7-82, which is marked as Ex. P.1. However, the learned Magistrate entertained a doubt as to the previous sale of this picture to anyone as no satisfactory evidence was adduced before him to hold that the copy-right of this picture was sold to anyone already to constitute the fraud on the part of the accused. Even though P.W. 4 the Regional Manager, N.F.D.C. was examined to speak that already M/s Nemichand Jhabak has produced the agreement executed by the respondent accused in respect of this Tamil Film, to prove his right to the picture and on account of that, they refused to recognise the agreement between the revision petitioner and the accused, the learned Magistrate has observed that Nemichand Jhabak or anyone from Chitralaya Pictures was not examined to establish that the right to this film was already sold in 1976 and therefore the cheating alleged against the respondent is not proved and he was acquitting the respondent accused.