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Subhodaya Digital Entertainment Private Limited v/s The State of Telanagana, rep. by Public Prosecutor & Another

    Criminal Petition No.1225 of 2018

    Decided On, 11 April 2018

    At, High Court of Andhra Pradesh


    For the Petitioner: Mummaneni Srinivasa Rao, Advocate. For the Respondents: R1, Public Prosecutor (TS), R3, S. Niranjan Reddy, Sr. counsel for Thoom Srinivas, Advocate.

Judgment Text

1. This Criminal Petition, under Section 482 of Cr.P.C., is filed by the petitioner-accused seeking to quash the proceedings in Crime No.46 of 2018 of Pet Basheerabad Police Station, Cyberabad, registered for the offences under Sections 403, 420 I.P.C. and Sections 69 and 63 r/w 65 of the Copyright Act, 1957.

2. Heard Sri Mummaneni Srinivasa Rao, learned counsel for the petitioner-accused, learned Public Prosecutor appearing for respondent No.1-State and Sri S. Niranjan Reddy, learned senior counsel representing Sri Thoom Srinivas, learned counsel for the 3rd respondent, apart from perusing the material available on record.

3. The learned counsel for the petitioner would submit that a false report is lodged by the 2nd respondent-de facto complainant who has no authority to do so. Basing on that, the impugned crime is registered and under investigation. As per the Copyright Act, the original owner has to give a complaint to the competent authority not to the police. The police has no power or authority to register the crime at the instance of the unauthorized person. The said fact is also proved based on the report dated 30.11.2015 submitted by the Deputy Superintendent of Police, Toopran Sub Division. As per the said report and the Act, any party aggrieved by any dispute in respect of broadcasting of cable network, ought to have filed complaint before the Telecom Distributor Settlement and Appellate Tribunal, New Delhi (TDSAT). As per Section 11 of the Cable Television Networks (Regulation) Act, 1995, the competent authority is the Commissioner of Police. The de facto complainant is not the aggrieved person and the original owner of the network is Star India, so it cannot be looked into. The petitioner is running a cable network having licence granted by Star India and the licence is valid upto 30.06.2018. Ultimately, the petitioner prayed to quash the impugned proceedings.

4. The contentions made on behalf of the 3rd respondent are as follows: The 3rd respondent is a broadcaster, whose broadcasting and reproduction rights are infringed by the petitioner. The 2nd respondent is the authorized representative of the 3rd respondent. The 2nd respondent filed criminal complaint against the petitioner in the subject crime and there is no infirmity in filing the criminal complaint by the 2nd respondent. As an abundant caution, the 3rd respondent filed an application in I.A. No.4 of 2018 to implead it in the Criminal Petition. It is contended that the Star India Private Limited is a company incorporated under the provisions of the Companies Act, 1956, and it has registered office in Mumbai. The 3rd respondent is engaged in the business of broadcasting satellite television channels of various genres. The 3rd respondent owns the right, title, interest, etc., including broadcasting and reproduction right for the Star pay channels. The 3rd respondent has the requisite licence to do so, obtained from the Ministry of Information and Broadcasting. The business is being carried as per the Regulations of the Telecom Regulatory Authority of India Act, 1997. The petitioner-accused representing itself to be a Multi System Operator involved in the business of retransmission of signals of cable television channels through its network, approached the 3rd respondent-company seeking supply of Star pay channels for retransmitting them over its network and offered to pay the subscription fees to the 3rd respondent-company. The petitioner had fallen due huge amount. So a payment plan was given by the 3rd respondent to clear the outstanding amount pertaining to past period. The petitioner also executed a Memorandum of Understanding (MoU) in September, 2017, for high definition channels, wherein the petitioner agreed to pay fixed licence fee of Rs.0.50 lakhs per month for high definition channels. As expressly mentioned in the agreement, the 3rd respondent agreed to grant the petitioner the “Non-exclusive right to re-broadcast and re-transmit the channels during the Term via the Distribution System for Re-transmission to Subscribers within the Territory”, subject to the petitioner scrupulously complying with the terms of the agreement including the clause pertaining to payment of applicable fixed licence fee of Rs.41.50 lakhs per month. The conditions of agreement are in tune with DAS Regulations. The rights granted to the petitioner are from 01.07.2017 to 30.06.2018. The petitioner committed default in making regular payment as agreed to the 3rd respondent. As per the terms and conditions of the agreement, the 3rd respondent had suspended the operation of the broadcasting rights of the petitioner after due notice in accordance with the Regulations after following due procedure. Thereafter the petitioner could not have lawfully transmitted/retransmitted the broadcasting signals with effect from 15.01.2018. In spite of notice of suspension of rights, the petitioner is indulging in transmission of the signals even after 15.01.2018 resorting to dishonest means. Having noticed the same and captured the signals, an authorization was given to the de facto complainant to lodge the report. The submissions made on behalf of the petitioner are unsustainable. The proceedings cannot be quashed as there is a prima facie case for the offences alleged and prayed to dismiss the petition.

5. In view of the contentions putforth by both sides, the point for determination is, whether the request of the petitioner can be acceded to?

6. The 2nd respondent-de facto complainant filed a report dated 20.01.2018 before the police stating that the local cable operator- Subhodaya Digital Entertainment Private Limited, Jeedimetla, Hyderabad (the petitioner herein), having their viewers base in Hyderabad and elsewhere, has been illegally retransmitting and broadcasting Star Channel without any licence or authorization from the 3rd respondent through DTH STB’s from his control room in Hyderabad city. Its constituted attorney nanavati and company advocates deputed an antipiracy consultant-Mr. Sarfaraz Sayyed (de facto complainant), who reached the location, captured and recorded the illegal broadcasting of Star channels over the local network by the petitioner. In the recording, contained in the disc produced along with the report, Star Plus channel is visible along with Finger print No.00111ECA. Thus, the petitioner indulged in transmitting/retransmitting signals of Star pay channels by illegally demodulating signals from Direct to Home (DTH) Set Top Boxes (STB) and stealing the signals belonging to the 3rd respondent-company. The finger print number clearly shows that the local operators are stealing the signals provided by the 3rd respondent. Basing on the report, a case in Crime No.46 of 2018 was registered by Pet Basheerabad Police Station, Cyberabad, for the offences under Sections 403, 420 I.P.C. and Sections 69 and 63 r/w 65 of the Copyright Act.

7. As per the material placed before this Court, the petitioner committed default in making stipulated payment of Rs.41.50 lakhs per month to the 3rd respondent. The petitioner committed default in making payment of the stipulated licence fee of Rs.0.50 lakhs as per the MoU. There is record to show that the petitioner paid an amount of Rs.77,06,000/- as against the demand of Rs.3,64,05,119/-. As per the record, the agreement between the parties contains the method of payment and it elaborately spells out the consequences of non-payment of licence fee. Clause 19 of the Agreement provides that if the MSO defaults in payment of any fixed monthly licence fee on the due date, the broadcaster shall have the right to suspend delivery to MSO of all the channels after giving notice in accordance with law. It is not in dispute that the petitioner is not the licensee of the 3rd respondent. Further, there is no much dispute with regard to the agreement as well as the MoU entered into between the parties to the litigation. There is a procedure under Clauses 6.1 and 6.5 of the DAS Regulations to be followed by broadcaster for deactivating the supply of signals on failure of the Multi System Operator to make payment of the fixed monthly licence fee on the due date. The DAS Regulations further mandate publication of such notice in two leading local newspapers of the State in which the service provider is providing the services, out of which one notice shall be published in the newspaper in local language.

8. In the instant case, the petitioner committed default on multiple occasions in making payment of fixed licence fee on the due date. The 3rd respondent issued a notice to the petitioner on 12.12.2017 informing about the default of payment of monthly licence fee and the consequences. There is also record to show that the notice was published in the local newspaper and the deactivation and discontinuation of the signals was effected from 15.01.2018. There is also record to show that in spite of discontinuation of signals as stated supra, the petitioner resorted to alleged dishonest means of procuring and providing signals belonging to 3rd respondent to its subscribers and thereupon the impugned written report was lodged with the police. On that, the police concerned registered the subject crime. The 2nd respondent, who is the authorized agent of the 3rd respondent, has right to lodge a report to the police and no infirmity can be found therein. As per the record, the 3rd respondent is the proper party to the proceedings. The implead application filed by the 3rd respondent is allowed today vide order inI.A. No.4 of 2018. 9. It is apt to refer the decision of the Hon’ble Supreme Court in Inder Mohan Goswami and another v. State of Uttaranchal and others (2007) 12 SCC 1), wherein it is observed that the power under Section 482 Cr.P.C. is required to be exercised sparingly, carefully and with great caution to prevent abuse of process of the Court or otherwise to secure the ends of justice. While exercising the power, the Court has to ensure that the criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. The power should not be exercised to stifle a legitimate prosecution.

10. As per the records placed before this Court, the submission of the report dated 30.11.2015 by the Deputy Superintendent of Police, Toopran Sub Division, has no bearing over the facts and circumstances of the instant case. The allegation is that the petitioner has been dishonestly indulging in broadcasting of channels of the 3rd respondent, even after the discontinuation of signals with effect from 15.01.2018. There is no authority for the petitioner to do

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so. Such acts can be construed as infringement of copyrights of the 3rd respondent. It amounts to conversion of movable property belonging to respondent No.3 fraudulently with unlawful measures by the petitioner. The impugned criminal proceedings are not invoked as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. The continuation of proceedings is not abuse of process of law. Further, in view of the circumstances of the case, it cannot be held that there are no sufficient grounds to register the impugned crime and proceed with the investigation of the case. The report lodged by the 2nd respondent reveals prima facie commission of a cognizable offence, for which the impugned crime is registered. Continuation of the impugned proceedings is not abuse of process of law. All the contentions raised on behalf of the petitioner do fail. The petition is devoid of merit and it is liable to be dismissed. 11. Accordingly, the Criminal Petition is dismissed. The interim stay granted on 08.02.2018 in I.A. No.2 of 2018 stands vacated. Miscellaneous petitions, if any pending in this Criminal Petition, shall stand closed.