KANTI SHAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 29.4.1998 passed by Smt. Sushma Sinha, Judicial Magistrate, Patna in Complaint Case No. 382(c) of 1998. By the said order, learned Magistrate has taken cognizance of offence under Section 420 of the Indian Penal Code and directed for summoning the petitioner to face trial.

(2.) Short fact of the case is that opposite party No. 2 filed a complaint in the court of Chief Judicial Magistrate, Patna, which was registered as Complaint Case No. 382(c) of 1998. The complaint was filed against the sole petitioner for the offence under Sections 406 and 420 of the Indian Penal Code. It was alleged that the complainant had approached the petitioner telephonically from his Patna office for distribution, exploitation and exhibition right of a picture, namely, LOHA in Hindi for the territory of Bihar and Nepal. Initially, the total amount was fixed to the tune of Rs. 34 lakhs. However, on request made by the complainant, the amount was reduced to Rs. 28 lakhs and petitioner in the month of February and March, 1997 made initial payment of Rs. 6.26 lakhs on different dates. In the complaint petition, it was asserted that complainant went to Mumbai and paid the balance amount to the petitioner and thereafter, a final receipt dated 16.10.1997 of full and final payment was made. The complainant has stated that the petitioner informed the complainant for release of film 'LOHA' on 17.10.1997. The complainant disclosed in the complaint petition that the petitioner sent a registration letter dated 15.2.1997 to the Secretary, Bihar Motion Picture Association for LOHA picture in favour of the complainant for Bihar and Nepal territory for seven years from the date of first release in the said territory, which was subsequently, registered for the period of ten years. Accordingly, the said film was registered to be displayed within the territory of Bihar and Nepal in favour of M/S Sankat Mochan Pictures of which the complainant was Proprietor. It has been alleged in the complaint petition that subsequently, the petitioner had given the said right in favour of one M/S Viratnagar Picture Exchange, Viratnagar, Nepal. It was asserted by the complainant that the petitioner had cheated the complainant by way of giving the right of distribution, exploitation and exhibition of the film 'LOHA' to M/S Viratnagar Picture Exchange whereas initially the payment was made by the complainant for being appointed for both the areas i.e. Bihar and Nepal and agreement was already entered in between the complainant and the petitioner. The complainant has asserted that due to the said act, the petitioner had cheated and mis-appropriated the amount to the tune of Rs. 10 lakhs of the complainant. After filing the complaint petition, the complainant was examined on S.A. and in support of complaint petition, witnesses were examined, who corroborated the stand of the complainant and thereafter, by the impugned order i.e. by order dated 29.4.1998, the learned Magistrate took cognizance of offence under Section 420 of the Indian Penal Code.

(3.) Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On 23.12.1998, the petitioner was permitted to add the complainant of the case as opposite party No. 2 and the case was admitted for hearing. Since opposite party No. 2 had already entered his appearance through his advocate, no notice was directed to be issued to him. This Court further directed that till disposal of this case, further proceeding in Complaint Case No. 382(c) of 1998 in the court below shall remain stayed. The order of stay is still continuing. After the admission of the case in the year 2003, an Interlocutory Application vide I.A. No. 1172 of 2002 was filed on behalf of opposite party No. 2 for vacating the stay. However, same was rejected on 31.3.2003.