IN THE HIGH COURT OF JUDICATURE AT BOMBAY

Transcription

1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. OF 2018 DIST. MUMBAI In the matter of Articles 14, 21 and 226 of the Constitution of India; And In the matter of registration of FIR on the complaint of the 1

2 Petitioners for Cognizable and Non-Bailable offences; And In the matter of acts of omission and dereliction of duty by the Respondents. 1. POOJA FILM COMPANY ) Through its Proprietor Mr. Vashu ) Bhagnani having its address at ) Pooja House, CTS No.892 and 893 ) Opp. JW Marriot Hotel, Juhu Tara ) Road, Juhu, Mumbai ) 2. POOJA ENTERTAINMENT & ) FILMS LIMITED ) Through its Managing Director ) Mr. Vashu Bhagnani having its ) Address at Pooja House, ) CTS Nos. 892 and 893 ) Opp. JW Marriot Hotel, Juhu Tara ) Road, Juhu, Mumbai )... PETITIONERS VERSUS 2

3 1. STATE OF MAHARASHTRA ) Through Economic Offences ) Wing, GB CB CID, Mumbai ) 2. THE COMMISSIONER OF POLICE ) having his office at Police ) Commissioners office ) Compound, Crawford Market ) Mumbai ) 3. JOINT COMMISSIONER OF POLICE ) Economic Offences Wing, ) Police Commissioners ) Compound, Crawford Market ) Mumbai ) 4. DEPUTY COMMISSIONER OF POLICE ) Police Commissioners ) Compound, Crawford Market ) Mumbai )... RESPONDENTS TO, 3

4 THE HON BLE CHIEF JUSTICE AND OTHER HON BLE PUSINE JUDGES OF THIS HON BLE HIGH COURT OF JUDICATURE AT BOMBAY: THE HUMBLE CRIMINAL PETITION OF THE PETITIONER ABOVENAMED: MOST RESPECTFULLY SHEWETH: 1. The Petitioners are companies engaged in the business of production and distribution of films and are having their registered office at the address mentioned in the cause title above. Respondent No.1 is the State of Maharashtra which has been arrayed through the office of the Government Pleader. Respondent No.2 is the Commissioner of Police and is the highest officer under whom the Economic Offence Wing of the Police Department operates and having its office at the address mentioned in the cause title above. Respondent No.3 is the Joint Commissioner of Police of the Economic Offences Wing and having its office at the address mentioned in the cause title above. Respondent No.4 is the Deputy Commissioner of Police in respect of the Economic Offences Wing and having its address mentioned in the cause title above. 4

5 2. The instant Petition is being filed by the Petitioners due to inaction on the part of the Respondents to take credence of the written Complaint dated 22 nd June, 2018 submitted by the Petitioners herein with the office of the Respondents and more particularly the Economic Offences Wing for the purposes of registering an F.I.R. and commencing investigation for which the Complaint is on the basis of allegations made by the Petitioners and predominantly under the parameters of Criminal Breach of Trust and Cheating whereby wrongful loss to the extent of Rs. 15,00,00,000/- (Rupees Fifteen Crores Only) has been caused and occasioned upon the Petitioners due to collusion and connivance between the accused persons, a copy of which Complaint though received by the Economic Offences Wing, has been unattended in spite of personal visits and reminders. Hereto annexed and marked as EXHIBIT A is the copy of the Complaint dated along with its annexures. 3. The Petitioners state that in a nutshell the case arises in respect of a film by the name of KEDARNATH. This Hindi feature film KEDARNATH is starred by newcomers in the Hindi Film Industry and is directed by one Abhishek Kapoor and produced by Rohinton 5

6 (Ronny) Screwvala, who have also been made as accused persons. The said Mr. Ronny Screwvala and his companies negotiated and signed a deal behind the back of the Petitioners for the sole production and distribution of the said film in April 2018, despite being aware of the Petitioners and Mr. Vashu Bhagnani involvement in the said film, with other persons named in the FIR, as outlined in detail in the complaint dated As given to understand by the Director of the said Film, one M/s Kriarj Entertainment Pvt. Ltd., (hereinafter referred to as KEPL) along with one Guys in the Sky Pictures Pvt. Ltd. (hereinafter referred to as GSP) were seized, possessed and entitled to the rights of the film. It was further represented to the Petitioners that due to financial issues, the said movie could not complete its shooting and ultimately could not see the theatrical release which is why the Petitioners along with the said KEPL and a guarantor by the name of Prerna Arora executed a Finance Agreement by virtue of which the Petitioners agreed to provide a financial sum of Rs. 13,00,00,000/- (Rupees Thirteen Crores Only) to KEPL for the purposes of the said film. Under the said Agreement, various payments were made and what was represented by the said KEPL was that a fixed amount along with the amount so tendered by way of finance 6

7 shall not only bear interest but also additional costs in lieu of the delay in the payment. Under the said Finance Agreement a right to pre-emption which is the first right of refusal was given to the Petitioners for the purposes of distribution and exploitation of the said film on its completion for theatrical release in respect of the rights. Such rights would be in the form of distribution and exploitation in any part of India. It was further contended in the said Agreement that in the event of the Petitioners accepting such rights as Distributor, an independent Agreement would be entered into and executed. However, if the Petitioners refuse to distribute the said film, the said KEPL would return the amounts obtained by way of finance in a mechanism as provided under the said Agreement. Under the said Finance Agreement, various representations were made amongst which the predominant requisition was that the said Finance Agreement shall be honoured and that there was no litigation or proceeding or dispute or action pending against the said KEPL as also that the said KEPL has full power and absolute authority to enter into the Agreement of Finance. By way of a subsequent Memorandum of Agreement dated , entered into between the Petitioners and the said KEPL it came to be agreed between the parties 7

8 that KEPL had in themselves the exclusive, unencumbered and effective rights of the said film and a declaration to the effect that they had not created any charge, lien, mortgage or any other encumbrance on the said rights of the said film amongst other representations. 4. The Petitioners state that somewhere in the month of April 2018, the Petitioners witnessed a publication in a local newspaper by virtue of which it appeared that various other persons were involved in the making of the film and such persons had a claim in respect of the said film. Not believing the publication, the Petitioners addressed a letter to the so called prospective new right holder under cover of the letter dated 13 th April, 2018 which when received, the new claimed purchaser addressed a letter through his Advocates dated 18 th April, 2018 which inter alia informed the Petitioners that by a Deed of Settlement dated 5 th April, 2018 entered into between KEPL and GSP and Super Cassettes Industries Ltd., the parties mutually terminated all contractual relations with regard to the film and pursuant to such Settlement Deed all rights of KEPL in the said film were assigned to GSP absolutely 8

9 free of all encumbrances and that KEPL does not have any rights with regard to the said film. 5. Based on the above mentioned, the Petitioners had no other efficacious remedy but baffled with the situation whereby representations and covenants were made to the Petitioners, inducing the Petitioners to part with a huge sum of Rs. 15,00,00,000/- (Rupees Fifteen Crores Only) and under the guise of certain underhand dealings and using of documents to camouflage the dealings, it was categorically cleared by the receipt of the Advocates letter that KEPL had assigned its rights to GSP who originally was the co-owner and now having the entire right, title and interest along with Super Cassettes Pvt. Ltd. in respect of the said film. This event not only diluted the right of the Petitioners but also led to a quandary with regard to the amount so invested by the Petitioners in the said film. It is pertinent to note that not only was the amount advanced with a view of investment, but the right of preemption which was solely the right of the Petitioners had been negated with such action on part of KEPL which in itself demonstrates the factum of wrongful gain caused by KEPL and others and a wrongful loss to the Petitioners. 9

10 6. In view of the above, the Petitioners sought the remedy of bringing to book the persons who perpetrated fraud and cheated the Petitioners by addressing a letter being a Complaint dated 22 nd June, 2018 which in spite of receipt the Respondents have not acted upon or taken any steps in adherence to the Complaint. Leave alone begin the investigation in respect of the instant cause. Pertinent would it be to state here that amongst the 12 Accused made in the written Complaint, it would appear that well known film personalities such as Abhishek Kapoor and Ronnie Screwvala and such other personalities are appended thereto on the basis of conspiracy and cheating, which could be one of the reasons for the non-perseverance of the written Complaint by the Petitioners. 7. The Petitioners state that the Petitioners thereafter visited the office of the Respondents on 27 th July, 2018 and 11 th August, 2018 upon which false assurances were given to the Petitioners. The Petitioners therefore through their Advocates addressed a letter dated 3 rd September, 2018 to the Respondents reminding the Respondents of the said Complaint and complaining to the Respondents that in the event of non cognizance of the said Complaint, the Petitioners would be approaching the Hon ble Bombay High Court. This 10

11 letter of the Advocates dated 3 rd September, 2018 is hereto annexed and marked as EXHIBIT B. 8. In view of the above and in view of the inaction on part of the Respondents and in view of the settled proposition of law as is decided by the Constitution Bench of the Hon ble Supreme Court of India in the matter of Lalita Kumari v. Government of Uttar Pradesh & Ors., the Respondents are approaching this Hon ble Court for reliefs as more particularly prayed for in the said Petition. GROUNDS A. The Respondents are duty bound to register the FIR on the Complaint of the Petitioners which discloses cognizable offences and to carry out investigation of the complaint against the Accused persons. B. In the facts and circumstances of the Complaint, the investigation through police agency is required. 11

12 C. The action, inaction, reluctance and refusal of the Respondents to act on the complaint of the Petitioners and to investigate the complaint against the Accused persons. D. The Respondents have acted in an unfair and unjust manner and have acted under pressure, clout and influence of the Accused persons and have not registered the FIR and have not started investigation. E. It is the duty of the Respondents to register the FIR and to carry out investigation without being influenced by any person however influential, powerful and connected. F. The Respondents have failed to fulfill the constitutional mandate and statutory duty to enforce law. G. The action, omission and refusal of the Respondents to register an FIR and carry out investigation is in violation of 12

13 Articles 14 and 21 of Constitution of India. H. It is a mandatory duty of the police if the information discloses commission of offence to register an FIR and to investigate the complaint and the police officer cannot avoid the duty to register an FIR for a cognizable offence. I. Action must be taken against erring Police Officers who do not register FIR on information received by him disclosing cognizable offence. J. The Complaint filed almost three months ago discloses cognizable offence and the grievance has gone unattended. K. The police officers are either acting under pressure, clout and influence or are afraid or reluctant to register FIR and carry out investigation in a fair and impartial manner against the Accused persons. 13

14 L. The conduct of the Respondents is in gross disregard of the mandate of law as laid down in the judgment of the Hon ble Supreme Court in Lalita Kumari v. Govt. of UP reported in (2014) 2 SCC In the premises aforesaid, the Petitioners are entitled to, and this Hon ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction under Articles 226 and 227 of Constitution of India directing the Respondents and their subordinates to register First Information Report (FIR) against the Accused persons on the Complaint dated and take action in accordance with law. 10. The Petitioners crave leave to add, alter, amend and delete any of the grounds aforesaid. 11. The Petitioners have no other alternative or efficacious remedy other than to approach this Hon ble Court for reliefs sought herein and the relief prayed for in this Petition if granted will be complete. 14

15 12. The Petitioners have not filed any other Writ Petition either in this Hon ble Court or in the Hon ble Supreme Court of India in respect of the subject matter of this petition. 13. The entire cause of action has arisen in Mumbai. The office of the Petitioners is at Mumbai and the office of Respondents is at Mumbai and the offence has been committed at Mumbai. Therefore, this Hon ble Court has jurisdiction to entertain, try and dispose of this petition. 14. The Petition is verified and declared by MR. NAGESH VAIDIKAR, the Constituted Attorney of the Petitioners who is well conversant with the facts of the case. 15. There is no delay/latches in filling this Petition. 16. The Petitioners have paid the necessary Court fees of Rs. / The Petitioners will rely on documents, a list whereof is annexed hereto. THE PETITIONERS THEREFORE PRAY:- 15

16 a) That this Hon ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction under Articles 226 of Constitution of India directing the Respondents and their subordinates to register First Information Report (FIR) against the Accused persons on the Complaint dated and take action in accordance with law; b) That this Hon ble Court be pleased to direct the Respondents to conduct an expeditious investigation after registration of the FIR in a time bound manner; c) For cost of the Petition; d) For such further and other reliefs as the nature and circumstances of the case may require. Dated this day of September,

17 ADVOCATES FOR THE PETITIONERS PETITIONERS VERIFICATION I, NAGESH VAIDIKAR, Adult of Mumbai Indian Inhabitant, the Constituted Attorney of Mr. Vashu Bhagnani, Sole Proprietor of Petitioner No. 1 & Managing Director of Petitioner No. 2, having its address as given in the cause title do hereby declare that the contents of paras 1 to 4 are true to my own knowledge and what is stated in paras 5 to 13 are on the basis of information and are in the nature of legal submission and I believe the same to be true. Solemnly declared at Mumbai ) This day of September, 2018 ) Before, ADVOCATES FOR THE PETITIONERS 17