V. Selladurai, Prop. Laxmi Enterprise vs Sridhar

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 u/s 420 Indian Penal Code.

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 Luxmi

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.

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 to 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.

The learned counsel appearing for the revision petitioner contended that Ex. P.7 letter of the N.F.D.C. itself shows that the film Urimaikural had

already been acquitted by Nemichand Jhabak under an agreement dated 17-3-76 and 7 years after this agreement, the right has been given to one

M/s Chandralaya Pictures, for exhibition of the picture in Ceylon and United Kingdom and therefore the revision petitioner''s request was not

considered. According to the learned counsel when it is specifically informed by N.F.D.C. that the film had already been acquired by Nemichand

Jhabak for a period of 7 years and thereafter to M/s Chandralaya Pictures, there is no necessity to adduce any further evidence for the sale of the

copyright to anyone prior to Ex. P.1 agreement and therefore the findings of the learned Magistrate is totally erroneous, which has to be set right

by setting aside the order.

As mentioned above, the accused also in his statement has admitted the payment of consideration of Rs. 50,000/- by the revision petitioner to

him and Ex. P.1 agreement also proves that there was sale of this picture to the petitioner for exhibition in Sri Lanka. Only if the respondent

accused had retained any right to sell the copy right to the revision petitioner herein, the said agreement is valid. On the other hand, if he had

already sold his right to any one and he did not retain any right of exhibition of this film in Sri Lanka, he had no right to sell the copy right to the

revision petitioner and if it was sold representing that he had the right to sell and received the money, certainly, it will amount to cheating. However,

as the learned Magistrate felt that there is no evidence to prove that the copy right to this picture had already been sold to Nemichand Jhabak or

M/s Chandralaya Pictures, he has found that the charge has not been proved against the respondent. But on a perusal of the statement of the

accused u/s 313 Code of Criminal Procedure when a question was put to him referring to the evidence of P.W.1 that the agreement Ex. P.1 was

filed with N.F.D.C. which did not accept it and informed P.W.1 in their letter that he (accused) had already sold the right to the film ''Urimaikural''

in 1976 itself to Chandraprabha and M/s Nemichand Jhabak was the rightful owner of the picture at that time, the accused respondent, has

answered that it was true. When the respondent accused himself would admit in his statement u/s 313 Code of Criminal Procedure that the sale of

the picture in the year 1976 to Nemichand Jhabak was true as mentioned in the letter written by N.F.D.C. and the learned Magistrate, should have

considered this part of the statement also. But he has held that there is no evidence to accept the sale of the picture prior to Ex. P.1 to anyone.

The learned counsel for the petitioner submitted that Nemichand Jhabak filed a Civil Suit C.S. No. 764 of 1980 on the file of this Court for

declaration that he became entitled to the picture ''Urimaikural'' for 99 years for the areas of Ceylone, U.K. North India and other overseas

territories and also for mandatory injunction to deliver the picture to him in pursuance of an agreement with Chandralaya Pictures and the said suit

also has been decreed in his favour by the Judgment of this court dt. 18-6-91 and though P. W. 4 has referred to this Judgment in his evidence,

somehow the judgment of the Civil Court was not produced before the learned Magistrate and therefore, now this revision might be allowed and

remanded back to the lower court for producing the additional evidence, namely the judgment of this court, which proves the sale of the copy right

already to the abovesaid Nemichand Jhabak. A copy of the said judgment is also produced along with the typed set. P. W.4 has mentioned in his

evidence that in C.S. No. 764 of 1980 filed by Nemichand Jhabak against Gemini Colour Laboratory and others. Nemichand Jhabak was

permitted to collect the prints from Gemini Colour Lab and the order copy also was received by him. Therefore, already oral evidence has been let

in by P. W. 4 to the effect that in C.S. No. 764/90, Nemichand Jhabak was permitted to collect the prints of the Tamil Film Urimaikural from the

colour Laboratory. But somehow the order copy was not obtained by the prosecution to substantiate the evidence of P. W. 4.

The learned counsel for the petitioner contended that the revision petitioner was not aware of the details of evidence of P. W. 4 at that time as

the State was conducting the prosecution, that at any rate, the Civil Court''s decree is binding upon the criminal court in respect of the right of the

parties and therefore in this case if the civil court decree is produced to show that Nemichand Jhabak was the owner of the picture prior to 5-7-82

the subsequent sale of the copyright by the respondent accused will amount to fraud on the petitioner and therefore the revision might be allowed

for the purpose of additional evidence.

Even though only in exceptional cases, in the interests of justice, additional evidence may be allowed, this is a case in which the respondent

accused has admitted in his statement u/s 313 Code of Criminal Procedure that the letter of N.F.D.C. referring to the sale of the picture to M/s

Chandraprabha and Nemichand Jhabak is true. However, as the learned Magistrate has failed to take note of this statement to consider the

allegation of the prosecution that the accused had no right to sell the film under Ex. P.1, but he fraudulently effected the sale of the film and

collected Rs. 50,000/- deceiving the revision petitioner. I feel that this Court has to interfere with its revisional jurisdiction in the findings of the

court below as it has omitted to apply it''s mind on the materials on record. As the order of the Court below is to be set aside, in the interests of

justice it is proper to permit the petitioner to file additional evidence for the production of the judgment copy in C.S. No. 764/80.

In the result, the order of the court below is set aside and the matter is remanded back to the lower court for re-assessment of the evidence in

the light of the observation made above and also to permit the prosecution for the production of the additional evidence of the judgment of this

Court in C.S. No. 764/80. The revision is allowed.

Revision allowed.