ANIL SARAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) LEAVE granted.

(2.) THE appellant was a partner in M/s. Agjevinath Films along with the second respondent, Shiv Prakash, and another person, Ajit Jai Tilak. The firm was constituted to distribute, exhibit and exploit the cinematograph films. The firm had entered into an agreement with producer, Bhojpuri film for distribution of 'Hamari Dulhaniya' and had two prints of the films obtained from the laboratory at Bombay and were arranged for exhibition in Roopak Cinema, Patna. It is the case of Shiv Prakash, the complainant on behalf of M/s. Ajgevinath Films, that the first accused, namely, M/s. Sapna Enterprises, had contracted on June 22, 1988 to take the film, exhibit the same and account for the proceeds in terms of the contract. Pursuant thereto, M/s. Sapna Enterprises was entrusted with the second copy of the film for exhibition and they exhibited the film from July 1, 1988. But the first accused had not returned the print to the complainant -second respondent with ulterior and dishonest intention to make wrongful gain and to cause wrongful loss to the second respondent. Subsequently, it came to the knowledge of Shiv Prakash that the first accused colluded and conspired with the appellant and Ajit with an intention to defraud the second respondent; and the firm exploited the second copy of the film' in the said cinema and "they stealthily and illegally misappropriated collections and dishonestly made wrongful gain for themselves and caused wrongful loss to the complainant and the said concern." It was also alleged that the appellant and Ajit induced the first accused by conspiracy to illegally obtain the films prepared for themselves and fabricated the documents and thereby Ajit, the first accused firm and the appellant, in collusion and conspiracy with common intention to do mischief, committed the offence referred to earlier. Admittedly, the complaint was filed before the Chief Judicial Magistrate, Patna who, after examining the complainant, transferred the case to Judicial Magistrate -II, Patna whose Presiding Officer then was Mr. A.K. Srivastava. The learned Magistrate examined three witnesses and thereafter issued process to the appellant and third respondent under Ss. 406 and 420 IPC. The appellant thereafter filed an application under S. 482 of the Code of Criminal Procedure, 1973 [for short, 'the Code'] before the High Court, Patna to quash the complaint.

(3.) IT is contended for the appellant that the Chief Judicial Magistrate, having entertained the complaint, was required to examine other witnesses, take cognizance and then could have transferred the case, if he so desired, to a competent Magistrate subordinate to him as envisaged by S. 192 (1) of the Code. But, in this case without taking cognizance, the Chief Judicial Magistrate committed manifest jurisdictional error in transferring the complaint to the Magistrate who took further action therein.