V.D.TULZAPURKAR, J. - (1.) This appeal has been preferred by one Phillip Simon Kallath (original accused) against his conviction under section 420 of the Indian Penal Code and sentence of six month rigorous imprisonment and a fine of Rs. 1,000 imposed by him by the learned Presidency Magistrate, 28th Court, Esplanade, Bombay on 23rd July, 1973 in Criminal Case No. 313/P/72.
(2.) The charge against the appellant---accused was that in the month of May 1970, at Greater Bombay he induced the complainant Rajeshkumar P. Dave to part with a cash of Rs. 98,000 under the false pretext of producing a picture styled as "Asha" and on further representation that actress Saguna and actor Biswajeet were acting in the said film and that the complainant would be taken as an associate producer of the film and thereby the appellant-accused has committed an offence punishable under section 420 of the Indian Penal Code.
(3.) The prosecution was instituted by the complainant by lodging a complaint dated 25th March, 1971 with the Deputy Commissioner of Police, General Branch, C.I.D. Bombay and the complainants case was that prior to May, 1970 he was residing at Vidhyanagar Anand and was carrying on business of palmistry and astrology there. But from the very beginning he was interested in production of movies, particularly producing a Gujarati movies. His case further was that in the first week of May, 1970 after coming to Bombay he contacted one Devendra Prasad Singh whom he knew for the past about 15 years and to whom during the latters visit at Anand he had told about his ambition to produce a Gujarati picture. Devendra Prasad Singh told him that he (Devendra Prasad Singh) was then engaged as a Director of a certain film inoculated Asha produced by one P.S. Kallath (accused under the banner of Vivia Arts (Madras) and that he would introduce him (complainant) to the accused. Accordingly, Devendra Prasad Singh arranged the meeting between the complainant and the accused at the latters residence near Bandstand at Bandra. During this meeting a general talk took place about the movies and production thereof and Devendra Prasad Singh told the accused about his (complainants) desire and ambition to produce Gujarati picture. There were further meetings at the residence of the accused and according to the complainant, the accused suggested to him that if he was really interested in producing a picture with limited finance he (complainant) should join him as an associate producer in the production of his movie initiated Asha whereupon he enquired of the accused as to how much investment would be required. He further told the accused that he had made arrangements for Rs. 30,000/- and could further arrange for a total amount of Rs. 50,000/-. In yet another meeting which took place on 9th May, 1970 according to the complainant the accused made certain representations which were as follows:--- (a) That the accused was producing film initiated Asha under the banner of Vivia Arts (Madras); (b) That in that film the accused had taken Biswajeet as hero, Saguna as heroine, Sagunas sister Rani in a character role along with number of other artists; (c) The accused had taken Shri Jaideo as Music Director and that he had already recorded four songs wherein playback was given by Mohd. Rafi, Lata Mangeshkar and Asha Bhosle; (d) That the shooting of his film had already started and that all arrangements were to be made to complete the film within three months but further progress was held up for want of finance; (e) That the accused had already invested Rs. 3 lacs and that his investment would have been much more but the fact that Saguna being his wife and Rani being sister-in law were to work on credit and that the would be paid only after the release of the said picture; (f) That Biswajeet being his friend had also agreed to work for his film and would receive the balance amount on the release of the picture; (g) That he was in need of Rs.50,000 and he was unable to arrange for further amount himself because he had borrowed enough for the said film; (h) That if the complainant helped him in advancing Rs. 50,000 as loan, the accused would give him the credit of being his associate producer of the film and that the complainant would not only gain experience but would also get name, fame and money by working with the accused. (i) That no sooner Rs. 50,000 were arranged for, the accused would complete the film within three months and would return that amount to the complainant within that period. According to the complainant, Devendra Prasad Singh who was also with him at that time confirmed the aforesaid representations made by the accused and assured him that if the complainant made investment as suggested by the accused not only his money would be safe but he would be making good profit by earning name and fame. According to the complainant further it was on such representations that were made by the accused he was induced to make the investment as suggested by him. It was his case further that the accused even allowed him the use of his Impala car to go to his native place to fetch the finance and initially an agreement of 15th May, 1970 was entered into under which the accused agreed to take him as an associate producer of the film. Certain changes in the terms and conditions of this agreement were affected and thereafter a regular agreement was entered into on 29th May, 1970. It was his case further that on 28th May, 1970 in the morning the accused had gone to his residence along with Devendra Prasad Singh and there in the presence of his wife and Devendra prasad Singh he paid Rs. 50,000 to the accused. On that day the regular agreement dated 29th May, 1970 was executed by the parties and the earlier document namely the agreement dated 15th May, 1970, terms of which were altered to some extent later on was cancelled. The complainants case was that according to this agreement dated 29th May 1970, the accused agreed to take him as his associate producer and to give him due publicity likewise and further agreed to pay him Rs. 50,000 as remuneration being an associate producer on the completion of the picture intituled Asha in addition to the repayment of the loan of Rs. 50,000 advanced by him to the accused which was agreed to be returned within three months. It was also agreed according to the complainant that the accused was to pay him Rs. 1,000/- per month as and by way of his salary. The complainant case further was that in the first week of July, 1970, the accused gave him a cheque of Rs. 2,000 which was presented by him at the bank of 17th July, 1970 but the same was dishonoured; whereupon when he informed the accused about the dishonour of the cheque the accused expressed his regret and told the complainant to wait for sometime. He also enquired of the accused as to what had happened to the amount of Rs. 50,000/- already paid to him, to which the accused replied that he had already paid the same to different artists and was waiting for their suitable dates adding further that the complainant should not worry at all. According to him further in the first week of September, 1970, the accused had gone to his residence and told him that to give final touches to the picture he (the accused) would require further sum of Rs. 50,000/- or so and that if the said further finance was made available to him the complainant would not worry about the repayment thereof as the accused was prepared to offer his two flats in the ownership building known as "Viva" at Vile Parle as and by way of security and would give the charge on those flats in complainantss favour. When he (complainant) expressed his inability to arrange for that amount, the accused told him that if the complainant wanted credit for as an associate producer get name and fame the complainant will have to arrange for the same some how as the accused was in badly need of such finance. The complainants case further was that by about middle of September 1970, he could arrange the amount of Rs. 48,000 from one Savitaben Patel at Anand and immediately after coming to Bombay, he informed the accused on 17th September, 1970 about the arrangement made, and again in the presence of Devendra Prasad Singh, he paid the accused a further sum of Rs. 48,000 in cash. According to the complainant on this occasion, the accused had brought certain typed document with him, one was a promissory note and the other was a letter. The accused executed the promissory note in complainants favour in respect of Rs. 48,000 which the complainant paid to him and by the letter the accused recorded that the said loan of Rs. 48,000 was for the purpose of completing construction of the accuseds building Viva at Vile Parle and that as and by way of additional security for the said amount of Rs. 48,000 he created a charge in complainants favour with respect to the flats being flat Nos. A-5 and A-6 standing in his name in that building. The accused by that letter further agreed and covenanted that till the amount of Rs. 48,000 was repaid in full he shall not deal with or alienate in any manner whatsoever the said two flats. According to the complainant, though these documents mentioned that the amount of Rs. 48,000 was as and by way of construction loan, it really represented the further finance, which the accused wanted for his film. The complainants case further was that thereafter the accused went on making promises that the moneys due under the agreement dated 28th May, 1970 would be paid towards the middle of January 1970 along with remuneration of Rs 50,000 as agreed and the arrears of salary due to him which he was entitled to as an associate producer for his picture intituled Asha. But in spite of waiting for considerable period, the accused did not repay any amount. According to the complainant, sometime in middle of October 1970, he learnt from Devendra Prasad Singh that the accused has started behaving arrogantly, that the accused had cheated him (Devendra Prasad Singh) and other members in the film industry and that the accused also appeared to have cheated the complainant to the tune of Rs 98,000. In October 1970 he was sick and after he felt better some time in first week of January 1971 he contacted the accused at his residence and asked him about the production of film and the progress thereof. But to his surprise the accused behaved arrogantly and his behaviour had totally changed and the accused started giving evasive replies. When moneys were demanded, according to the complainant, the accused got wild and told him that he (accused) had no money and that the complainant was at liberty to do his worse if he could and asked him to get out of his premises. Thus, according to the complainant, the accused had duped him to the tune of Rs 98,000 that all the representations made by him were absolutely false, that not a single days shooting has been done and there were no steps taken in the direction of shooting the film and that not a single song has been recorded as represented.;