SURENDRA KAPOOR Vs. RAM PRASAD KHEMKA

JUDGEMENT

(1.) THIS application has been filed for quashing of the entire prosecution including the order dated 5.4.1999 passed by the Judicial Magistrate, 1st Class, Bhagalpur in Com - plaint Case No. 166 of 1999 (T.R. No. 1479 of 1999) whereby the learned Magistrate had taken cognizance of the offence under sections 406 and 420 of the Indian Penal Code and directed for issuance of summons against the petitioner.

(2.) COMPLAINANT -Opposite Party no. 1 filed a petition of complaint in the court of Chief Judicial Magistrate, Bhagalpur which was registered as Complaint Case No. 166 of 1999 (Ram Prasad Khemka V/s. Surendra Kapoor). According to the complainant he is engaged in business of film distribution in the name and style of Shree Balaji Art International which is registered under the Bihar Motion Pictures Association. He had alleged that according to the arrangement made earlier, an agreement was entered into on 9.3.1995 for distribution of a film known as "Jalsaaz". In terms of the agreement complainant paid a sum of Rs. 2,75,000/ - to the accused -petitioner. Complainant has further alleged that the accused did not carry out the terms of the agreement within the time stipulated and in spite of several registered letters accused did not give satisfactory reply. Left with no option, according to the complainant, he brought an action before the Bihar Motion Pictures Association on 28.7.1997 and although the said association gave notice to the accused several time but he did not appear before it and left with no option, Bihar Motion Pictures Association passed an ex parte order on 20.2.1998 and held the allegation of the complainant to be true and gave its verdict in its favour. Complainant has further averred that on account of non -compliance of the order of the Bihar Motion Pictures Association petitioner had suffered a loss of Rupees five lacs as also the mental agony.

(3.) MR . Rajiv Kumar Verma appearing on behalf of the petitioner submits that the allegation made in the petition of complaint, if accepted in its entirety, no offence either under section 406 or under section 420 of the Indian Penal Code is made out and hence the prosecution of the petitioner is an abuse of the process of the Court. He points out that the allegation made against the petitioner is nothing but simple breach of contract. In support of his submission he has placed reliance on large number of authorities. Mr. Farooque Ahmad Khan however appearing on behalf of opposite party no. 1 submits that the complainant may have the remedy of civil action but the allegations made in the petition of com - plaint do constitute an offence, hence it is not a fit case in which the prosecution of the petitioner is fit to be quashed.