Calcutta High Court (Appellete Side)

M/S. Dream Mills vs State Of West Bengal & Anr on 9 August, 2023

                      IN THE HIGH COURT AT CALCUTTA
                        Criminal Revisional Jurisdiction
                              APPELLATE SIDE

Present:

The Hon'ble Justice Shampa Dutt (Paul)



                                        CRR 991 of 2020

                                        M/s. Dream Mills

                                              Vs.

                             State of West Bengal & Anr.



For the Petitioner               :         Mr. Subir Banerjee,
                                           Mr. Tanweer Ahmed Khan.


For the State                   :          Ms. Puspita Saha.


For the Opposite Party          :          None.
No. 2


Heard on                            :     18.07.2023

Judgment on                     :         09.08.2023

Shampa Dutt (Paul), J.:

 1.

The present revision has been preferred against an order dated January

28, 2020 and the examination in chief as recorded by the Learned 9th

Metropolitan Magistrate, Calcutta in G.R. No. 212 of 2015.

2. The petitioner‟s case is that the instant application is filed challenging

the order of the Learned Trial Court allowing admission of secondary

evidence despite the availability of the primary evidence in the criminal

proceeding.

3. On December 26, 2013, a memorandum of understanding was executed

by and between the petitioner and the opposite party no. 2 for the release

of a movie "The Light - Swami Vivekananda" (herein referred as "the said

movie").

4. In the arrangement as entered into by and between the petitioner and

the opposite party no. 2 under the said agreement, the petitioner

provided the service of assistance in release of the movie in a particular

territory while the opposite party no. 2 was the producer of the said

movie.

5. The petitioner took due steps for the discharge of his duties under the

said agreement and appointed one Nikita Singh as manager for the

release of the said movie. The plan for release was however shifted to a

later date by the opposite party no. 2 due to the festival of Guru Gobinda

Jayanti and placed on the next date.

6. During the course of his pursuit, the petitioner came to know and

understand that the opposite party no. 2 had already given all the

distribution rights to another distributor, M/s. Venkatesh Films and

Hansa Movies and the same was not disclosed to the petitioner. Such

action on the part of the opposite party no. 2 was against the spirit of the

said agreement and amounted to fraud on the part of the opposite party

no. 2.

7. On getting such information, the petitioner had raised a protest before

the opposite party no. 2 for such fraudulent activities committed by the

opposite party no. 2 by his letter dated January 17, 2014.

8. The petitioner over telephone requested the opposite party no. 2 to

cancel the distributor‟s right with Shri Venkatesh Films Pvt. Ltd.

However, the opposite party no. 2 failed to do so and continued with such

fraudulent intent in distribution of the said movie.

9. In spite of that, the petitioner released the poster for „Patna hoarding‟ of

the said movie and this was confirmed by one Sanjeev Singh to the

petitioner by sending picture via email.

10. The release of the said movie was also circulated in the news paper by

the petitioner. In this context the paper cutting containing such release

date of the said movie was also communicated to the petitioner by the

said person.

11. The distribution rights of the said movie in favour of Venkatesh were

still not cancelled by the opposite party no. 2. In such circumstances, the

petitioner requested the opposite party no. 2 through his letter sent

through mail dated 31.01.2014 for exclusive right.

12. Thereafter the opposite party no. 2 wanted to know the detail and terms

and condition of the different distributors for release of „the movie The

Light of Swami Vivekananda‟.

13. Finally, on or about February 3, 2014 the opposite party no. 2

intimated to the petitioner that a letter for cancellation of the distribution

license has been sent to Venkatesh Films.

14. That Preeti Raj Films Entertainment, another distributor engaged by

the petitioner, wrote a letter to the petitioner regarding delay in content

providing from the opposite party no. 2 for releasing of the movie.

15. The petitioner informed by sending the consolidated report for the

activity to the opposite party no. 2 on 20.02.2014 via email.

16. The opposite party no. 2 wrote an email to the petitioner and discussed

about the releasing of the movie, phase by phase on 01.03.2014.

17. Thereafter the petitioner communicated to the opposite party no. 2 via

email dated 13th May 2014, stating all the facts regarding the distribution

of right with M/s. Venkatesh Films and Hansa Movies and requested by

the petitioner to cancel the distribution right with M/s. Venkatesh Films

and Hansa Movies.

18. The petitioner was then informed regarding the release of the said

movie „The Light of Swami Vivekananda‟ on 17.12.2015 and confirmation

of the release of the said movie in the different theatres for such period.

19. The said movie was released by the distributors as per the

memorandum of understanding dated 26th December 2013 and thereafter

the petitioner raised Tax-Invoice in the name of the opposite party no. 2

and sent it to the opposite party no. 2 by email and the same was

received by opposite party no. 2.

20. During the business transaction, a dispute cropped up between the

parties.

21. The opposite party had thus become indebted to the petitioner for a

huge sum of money as the consideration sum for the said services

advanced by the petitioner to the opposite party no. 2.

22. On the contrary, the opposite party no. 2 has proceeded to institute the

present criminal proceeding against the petitioner for fraud on the

ground of delay in release of the said movie.

23. That the delay had been caused due to the fraudulent activities and

non-cooperation of the opposite party no. 2. The proceeding has been

instituted by the opposite party no. 2 only to avoid responsibilities and

safe guard himself from any litigation.

24. It is submitted that the trial in the said criminal proceeding has already

commenced. In course of trial, the opposite party no. 2 has produced a

copy of the said agreement dated December 26, 2013 as evidence in the

said criminal proceeding. The said copy of said document was allowed to

be marked as exhibit by the Learned Trial Court by the impugned order

and the impugned deposition in this regard.

25. That the original of the said agreement is in the

custody/possession of the opposite party no. 2. No case is made out

by the opposite party no. 2 that the said original is lost or is not in

his possession. In such circumstances, the secondary evidence of

the said agreement ought not be admitted and exhibited.

26. It is thus submitted that it is the cardinal principle of law that when the

original is available, a copy of such document ought not be allowed to be

used in evidence and exhibited.

27. The above proceeding in any case is an abuse of the process of law as

the disputes raised by the opposite party therein are civil in nature.

28. The impugned order allowing the opposite party no. 2 to depose and

exhibit secondary evidence is bad in law and on facts.

29. That the Learned Judge failed to appreciate that no deposition was

given by the opposite party regarding the source of the said copy or to the

effect that the copy of the said agreement sought to be exhibited was

compared with the original.

30. The impugned order is thus bad in law and on facts and liable to be set

aside.

31. The relevant portion of the evidence is as follows:-

GR-212/15 "Further Examination-in-Chief of P.W.-1, Dypayan Dutta resumes on 01.10.2018 This is the photocopy of memorandum of understanding and the same is marked as „X‟ for identification. On 26.12.2013 a memorandum of understanding was executed between both the companies. It was agreed that in the memorandum of understanding the accused company will release a movie in exchange of same remuneration. The movie was "The light of Swami Vivekananda". But the accused company breached the terms and condition of MOU and did not release the movie where it was supposed to be released.

...................................................... Further examination in-chief of P.W. 1, Daipayan Dutta is taken on 28.01.2020 :-

(Produces the original Power of Attorney). The director, Jagdish Mishra Tricolour Productions Pvt. Ltd. executed this Power of Attorney dated 17.01.2015 and authorized me to represent the

company which is marked as Exhibit-2 (with objection). (Produces the memorandum of understanding dated 26.12.2013 which was earlier marked as „X‟ for identification). This memo was executed between Tricolour Productions Pvt. Ltd. represented by Director Mr. Jagdish Mishra and M/s Dream Mills represented by proprietor Mr. A.F. Inam which was executed via e-mail and marked as Exhibit-3 (with objection). (Produces a letter). This is the notice dated 27.03.2017 drafted by our lawyer Mr. Priyabrata Mukherjee to the proprietor Mr. A.F. Inam of M/s Dream Mills where the former asked the latter to produce documents i.e. memo of understanding dated 26.12.2013 between the two of them u/s 66 Indian Evidence Act which is marked as Exhibit-4 (with objection).........."

Sd/-

Metropolitan Magistrate, 9th Court, Calcutta

32. In Smt. J. Yashoda vs. Smt. K. Shobha Rani reported in 2007(3)

ALL MR 823 (S.C.), the Supreme Court held:-

"7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.

8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence."

33. In the present case it is clearly stated by P.W. 1 in his examination

chief on 28.01.2020 "...........This is the notice dated 27.03.2017

drafted by our lawyer Mr. Priyabrata Mukherjee to the proprietor Mr.

A.F. Inam of M/s Dream Mills where the former asked the latter to

produce documents i.e. memo of understanding dated

26.12.2013 between the two of them u/s 66 Indian Evidence Act

which is marked as Exhibit-4 (with objection).........".