Delhi District Court
Pankaj Jain vs State on 3 October, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : DJ (COMMERCIAL-11)
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 173/2020
CNR No.: DLCT01-003633-2020
Pankaj Jain
S/o Late M.L. Jain
R/o 21/69, Punjabi Bagh West
New Delhi
..... Petitioner
VERSUS
The State (Govt. of NCT of Delhi)
..... Respondent
Date of Institution : 11.08.2020
Date of Arguments : 24.08.2023
Date of Judgment : 03.10.2023
JUDGMENT
1. The petitioner preferred a criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter 'Cr.P.C.') against order dated 21.12.2019 (Hereinafter 'the impugned order') whereby Ld. ACMM-01 (Central), Tis Hazari Courts, Delhi (Hereinafter 'the trial Court') directed framing of charges under Section 63 of 'The Copyright Act, 1963' and Section 103/104 of 'The Trade Marks Act, 1999' against him in a criminal case arising from FIR No. 31/2016 under Section 63 of 'The Copyright Act, 1963' and Section 103/104 of 'The Trade Marks Act, 1999' registered at PS Kashmere Gate.
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2. Facts leading to institution of the criminal revision petition are that 'M/s. Mobis India Ltd.', through its authorized representative, namely, Mr. Ansar Khan, filed a criminal complaint, vide CC No. 66/M/16, alleging sale of counterfeit auto-mobile parts of Hyundai Motor India Ltd., parent company of the complainant, within jurisdiction of PS Kashmere Gate.
3. Jurisdictional Magistrate, vide order dated 22.12.2015, issued direction to DIU (North) under Section 156 (3) Cr.P.C. to investigate the case and issued search and seizure warrants under Section 93 Cr.P.C.
4. Pursuant thereto, the aforesaid FIR was registered on 18.01.2016 and investigation thereof was assigned to SI Ashish Dahima.
5. The case of the prosecution is that on 18.01.2016, IO SI Ashish Dahima alongwith Mr. Ansar Khan, authorized representative of the complainant conducted a raid at the shop of the petitioner i.e. 'M/s. PEE DEE Automobiles' at Shop No. 191/1, Prem Gali, Punja Sharif, Kashmere Gate, Delhi and searched his godown at 1/213, Prem Gali, Punja Sharif, Kashmere Gate, Delhi. He seized following counterfeit products from the said godown:
(a) 27 pieces of brakeshoe kit Santro;
(b) 6 pieces of pressure clutch plate; and
(c) 16 pieces of clutch plate.
6. IO SI Ashish Dahima kept 15 pieces, 11 pieces and 1 piece of brakeshoe kit Santro in three separate parcels and marked them as Sl. No. 1, 2 and S-1 respectively. He kept five pieces of clutch plate in a parcel and marked it as Sl. No. 3 and 1 piece of clutch in a parcel and marked it as Sl. No. S-2. He marked clutch plates as Sl. No. 4 and S-3 respectively.
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7. IO SI Ashish Dahima sealed aforesaid parcels with his seal having impression 'AD'. He interrogated the petitioner. He prepared site plan of the place of recovery.
8. IO SI Ashish Dahima also conducted raid at Shop No. 754/1/2-E, Ground Floor, Shri Ram Market, Chabi Ganj, Kashmere Gate, Delhi where he found one person, namely, Angad Rai who disclosed the name of owner of the said shop as 'Arvind Gauba'. During search, he recovered 191 pieces of Oil Seals with counterfeit logo of 'M/s. Mobis India Ltd.' (Hyundai). He kept 190 pieces of Oil Seals in a parcel and marked it as Sl. No. 5 and 1 piece of Oil Seal in a separate parcel and marked it as Sl. No. S-4. He sealed the said parcels with his seal having impression 'AD'. He handed over his seal to Mr. Ansar Khan, AR for the complainant. He prepared site plan of the place of recovery. He deposited recovered property in police malkhana. He recorded statement of the witnesses. He submitted a report under Section 64 of 'The Copyright Act, 1963' to the Jurisdictional Magistrate. He produced the case property for inspection before Jurisdictional Magistrate. Thereafter, the case property sealed with the seal of the said Magistrate and it was deposited in police malkhana. He charge-sheeted the petitioner, Mr. Angad Rai and Mr. Arvind Gauba for offences under Section 63 of 'The Copyright Act, 1963' and Section 103/104 of 'The Trade Marks Act, 1999'.
9. The trial Court, vide impugned order dated 21.12.2019, formed a prima facie opinion that the petitioner and Mr. Arvind Gauba committed offences under Section 63 of 'The Copyright Act, 1963' and Section 103/104 of 'The Trade Marks Act, 1999'. However, the trial Court discharged Mr. Angad Rai.
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10. The relevant part of the impugned order is, as under:
"As regards, the proposed accused persons namely Pankaj Jain and Arvind Gauba there are allegations that the said accused persons on their respective shops were selling duplicate products of the complainant company M/s Mobis India Private Limited (Hyundai) and failed to produce any satisfactory documents which show their authority from abovesaid company. The duplicate material was recovered from the possession of both accused persons.
Consequently, a prima facie offence u/s 63 of the Copyright Act and Section 103/104 of Trademarks Act is made out against accused Arvind Gauba and Pankaj Jain and no charge is framed against accused Angad Rai. Accordingly, accused Angad Rai stands discharged in present case. Ordered accordingly. Put up for framing of charge on 18.3.2020."
11. Feeling aggrieved and dissatisfied with the impugned order, the petitioner preferred the criminal revision petition.
12. I have heard Mr. Rikky Gupta, Advocate for the petitioner and Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent and perused the trial Court record.
13. Ld. Counsel for the petitioner contended that the trial Court considered the arguments which were not raised by him. He contended that the trial Court did not consider the arguments addressed by him. He contended that the trial Court passed a 'cut and paste order'. He contended that this fact is evident from perusal of the order regarding observation of the trial Court on application of 'The Designs Act, 2000' and Section 115 (4) of 'The Trade Marks Act, 1999'. He contended that a corporate entity cannot be an owner of a copyright. In that regard, he relied upon judgment in TechPlus Media Pvt. Ltd. vs. Mrs. Jyoti Janda, (2014) 60 PTC 121.
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14. Ld. Counsel for the petitioner contended that the complainant has not placed any document to show that copyright in the said work was assigned to it. He contended that the complaint and FIR do not mention the name of the petitioner. He contended that there is no receipt pertaining to purchase of any counterfeit product from the petitioner. He contended that besides statement of the complainant, there is no material that the recovered material was counterfeit and bearing logo of 'M/s. Mobis India Ltd.' (Hyundai). He contended that there is no expert report that the recovered item is a counterfeit product. He contended that the impugned order is a mechanical order and it was passed without application of mind. He relied upon judgment in Deepak Bhai Jagdish Chandra Patel vs. State of Gujarat & Ors., IV (2019) SLT 537. He contended that the impugned order deserves to be set-aside.
15. Ld. Addl. PP for the State / the respondent contended that there is no infirmity, material illegality or patent error in the impugned order. He contended that counterfeit products were recovered from godown of the petitioner. He contended that Mr. Ansar Khan had necessary expertise to identify the counterfeit products. In that regard, he referred certificate issued in favour of Mr. Ansar Khan by M/s. Mobis India Ltd. that he has requisite knowledge and expertise to distinguish between genuine goods manufactured by M/s. Mobis India Ltd. and counterfeit goods. He contended that the Court cannot conduct mini trial at the stage of framing of charge. He contended that sufficiency of the material cannot be evaluated at this stage. He contended that the trial Court considered the material on record and relevant law and passed the impugned order. He prayed for dismissal of the criminal revision petition.
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16. The scope of interference by a revisional Court at the stage of charge was delineated in the judgment of Amit Kapoor vs. Ramesh Chander and Another, (2012) 9 SCC 460, as under:
"12.....the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
16. The abovestated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution aforenoticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited.
18.....Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.
20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression "prevent abuse of process of any court or otherwise to secure the ends of justice", the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non- compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily....."
17. It would be appropriate to have a glimpse of legal principles governing the issue of charge.
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18. In Union of India vs. Prafulla Kumar Samal, AIR 1979 SC 366, Hon'ble Supreme Court of India enumerated the scope and ambit of Section 227 Cr.P.C., as under:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application.
By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
19. In Vikram Johar vs. State of Uttar Pradesh, (2019) 14 SCC 207, Hon'ble Supreme Court of India emphasized need of application of judicial mind to determine the potentiality of the case for a trial, as under:
"18. It is, thus clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence."
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20. The issue before this Court is whether there is material on record disclosing prima facie commission of offences against the petitioner.
21. On examination of the charge-sheet, recovery memo and relevant statutory provisions, it is evident that the case of the prosecution is that counterfeit products bearing logo of 'M/s. Mobis India Ltd.' (Hyundai), as stated in recovery memo, were recovered from godown of the petitioner.
22. The petitioner is charged for offences under Section 103/104 of 'The Trade Marks Act, 1999' and 63 of 'The Copyright Act, 1963'. The case of the prosecution is that the recovered products were identified by Mr. Ansar Khan, Manager (Operations), C3i, Consultant India Pvt. Ltd. as 'counterfeit products'. In that regard, Mr. Ansar Khan filed a certificate issued by 'M/s. Mobis India Ltd.' that he was imparted requisite knowledge and expertise to distinguish between genuine goods manufactured by 'M/s. Mobis India Ltd.' and counterfeit goods. Investigating Officer has not taken any opinion of the Registrar relating to trade mark, as provided under proviso to sub-section (4) of Section 115 of 'The Trade Marks Act, 1999'. Investigating Officer has not examined any authorized person from 'M/s. Mobis India Ltd.' (Hyundai) pertaining to authorization and expertise of Mr. Ansar Khan. Investigating Officer has not obtained any expert opinion from 'M/s. Mobis India Ltd.' (Hyundai) that the recovered products are counterfeit products. There is no prima facie material that the recovered goods are counterfeit products of 'M/s. Mobis India Ltd.' (Hyundai).
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23. In Shrenik Shantilal Dhandiwal vs. State of Maharashtra, 2018 SCC OnLine Bom 1890, Hon'ble Bombay High Court held, as under:
"11. On perusal of papers of investigation it appears in the present matter that the investigation was carried by Assistant Police Inspector, Local Crime Branch, Ahmednagar. Furthermore, no opinion of the Registrar is taken before carrying the investigation. At the initial stage matter requires to be examined by the expert i.e. the Registrar. Therefore, the investigating officer has to act upon the opinion given by the Registrar. Herein the present case no such opinion of the Registrar was taken by the investigating officer, nor the alleged offence is investigated by the officer not below the rank of Deputy Superintendent of Police. So the above two facts are in contravention of provisions of section 115 subclause 4 and it's proviso clause. So basically the investigating officer was not authorized to carry the investigation and due to such irregularity committed by the investigating officer he was not authorized to investigate the matter and file the chargesheet."
24. In Shantanu Bhowmik vs. State of Tripura, 2014 SCC OnLine Tri 297, Hon'ble Tripura High Court held, as under:
"6. For appreciating the submissions of the learned counsel for the parties, this court has scrutinised the records. It appears that the entire case is based on the search and seizure. Neither from the police report nor from the materials which have formed the part of the final report it is available that the proviso to sub section (4) of Section 115 of the Trade Marks Act, 1999 has been complied with by the police officer while making the search and seizure. The said proviso stipulates as under:
"Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trade mark and shall abide by the opinion so obtained."
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7. In this case no such opinion of the Registrar of Trade Marks is available before causing the search and seizure. As such, the search and seizure are ex facie illegal and no legal action can be taken against the petitioner. Apart that, this court does not find any other material incriminating the petitioner in the offence. Hence, both the impugned judgment and order are set aside. As consequence thereof, the petitioner is discharged from the criminal liability."
25. As regards application of Section 63 of 'The Copyright Act, 1963', there is no deed of assignment of copy right in the impugned logo in favour of 'M/s. Mobis India Ltd.'. In TechPlus Media Pvt. Ltd. vs. Mrs. Jyoti Janda (supra), Hon'ble Supreme Court of India held, as under:
"20.....The plaintiff is a juristic person and is incapable of being the author of any work in which copyright may exist. However the plaintiff can be the owner of a copyright under an agreement with the author of the said work. For the plaintiff to maintain the present suit, it is incumbent upon the plaintiff to disclose the said work and the author thereof and the agreement under which the author has made the plaintiff the owner of the copyright in the said work....."
26. Therefore, the trial Court committed manifest illegality in forming opinion that there is a prima facie case against the petitioner in the absence of any incriminating material against the petitioner disclosing commission of offences under Section under Section 63 of 'The Copyright Act, 1963' and Section 103/104 of 'The Trade Marks Act, 1999' CONCLUSION:
27. Accordingly, the criminal revision petition filed by the petitioner is allowed. The impugned order dated 21.12.2019 is set-aside. The petitioner is discharged from the offences under Section 63 of 'The Copyright Act, 1963' and Section 103/104 of 'The Trade Marks Act, 1999'.
Crl. Rev. No. 173/2020 Pankaj Jain vs. State Page No. 10 of 12 A copy of judgment alongwith trial Court record be sent to the trial Court. The criminal revision file be consigned to record room. Digitally signed by SANJAY SHARMA SANJAY Date:
SHARMA 2023.10.04
10:31:30
+0530
Announced in the open Court SANJAY SHARMA-II
on this 03rd October, 2023 DJ (Commercial-11) (Central)
Tis Hazari Courts, Delhi
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Pankaj Jain vs. State
CNR No.: DLCT01-003633-2020
Crl. Revision No. 173/2020
03.10.2023
Present : The petitioner in person.
Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent.
Vide separate judgment, the criminal revision petition filed by the petitioner is allowed. The impugned order dated 21.12.2019 is set-aside. The petitioner is discharged from the offences under Section 63 of 'The Copyright Act, 1963' and Section 103/104 of 'The Trade Marks Act, 1999'. The petitioner is directed to furnish personal bond in the sum of Rs. 10,000/-, as required under Section 437A Cr.P.C. Personal bond shall remain in operation for a period of six months. The criminal revision file be consigned to record room.
Digitally signedSANJAY by SANJAY SHARMA SHARMA 10:31:50 Date: 2023.10.04 +0530 Sanjay Sharma-II DJ (Commercial-11) Central, THC, Delhi 03.10.2023 Crl. Rev. No. 173/2020 Pankaj Jain vs. State Page No. 12 of 12