Bangalore District Court
Had Submitted The Seizure Mahazar Along vs No.2 on 10 April, 2015
IN THE COURT OF THE I ADDL.CMM: BANGALORE
Dated this the 10th day of April 2015.
Present: Sri Krishna Prasad Rao Kalmady,
B.A.,LL.B.,
I Addl.C.M.M.,Bangalore.
JUDGMENT U/s.355 Cr.P.C.
Case No. : CC No.42270/2010
Date of Offence : 19/03/2010
Name of complainant : State by Upparpet PS
(CCB (F&M Squad) )
Name of Accused : 1.Syed Rizwan @ Rizwan,
S/o.Late Syed Siraz,
25 Yrs, No.13, Bar Line
Masjid Compound, Mysore
Road, Bengaluru.
2.C.S.Mahendra Kumar,
S/o.Subbaiah,
23 Yrs, Flat No.F8,
Kenopi Apartment,
Cools Road, Frazer Town,
Bengaluru.
3.Bilal, S/o.K.B.Abdul,
20 Yrs, r/o.Infront of
Malabar Hotel, Balepet,
Bengaluru.
2 CC NO.42270/2010
4.Niyaz, S/o.Mohiddin,
32 Yrs, R/o.Jayanth's
House, 6th Main,
Ramachandrapura,
Srirampura, Bengaluru.
5.Jaisaram Jayaropaji
Solanki, S/o.Jai Ropa
Ram, R/o.Ayyappa's
House, 5th Cross,
Prakash Nagar,
Bengaluru.
Offence complained : U/s.486,487 & 420 of IPC.
Plea of Accused : Pleaded not guilty
Final Order : As per final Order
Date of Order : 10/04/2015.
- - -
JUDGMENT
1. The Police Inspector, CCB (F&M Squad), Bangalore has filed the charge sheet against the accused persons alleging that, they had committed the offences punishable under Sections 486, 487 and 420 of IPC.
3 CC NO.42270/2010
2. The case of the prosecution in brief is that on 19/03/2010 in Digital Zone shop bearing No.52, Old Hong Kong Bazaar, Opposite: Tribhuvan Talkies, Gandhingar within the limits of Upparpet Police Station, Bengaluru, accused No.1 without obtaining any licence or permission from the said Company, was found having used the counterfeit sign of M/s.Nokia India Private Limited like NOKIA, Eseries, Nseries, Xpress music, connecting people different model numbers, phone shapes, designs and the songs heard while the mobile phone starts, shaking hands, Nokia ring tone etc, and model No.6230, 6233, E71, N86, N5800, N95, BH 168, BH 880I, HS 23, HS 28, HS 47, AD41, AD57 in the products and were unauthorisedly in possession of low quality duplicate mobile phones and spare parts and kept the same in duplicate packing box and sold the same to the public using the trade mark of M/s.Nokia India Private Limited stating that they were original Nokia mobile phones and cheated the 4 CC NO.42270/2010 public and Company and illegally earned money.
Hence, the accusation. 3. Cognizance of the offence was taken and the presence of the accused was secured and
subsequently they were released on bail.
4. Copies of the prosecution papers were furnished to the accused persons as contemplated u/Sec.207 of Cr.P.C. Charge was framed for the said offences, which was read over and explained to accused. Accused persons had denied the charge levelled against them and claimed to be tried.
5. To bring home the guilt of the accused persons, the prosecution had examined two witnesses as Pws.1 and 2 and got marked documents Ex.P1 to Ex.P18 and MOs.1 to 11 and closed its side. Thereafter, the statement of the accused persons u/Sec.313 of Cr.P.C. was recorded. On behalf of the accused no witness was examined and no document was marked.
6. I have heard the arguments of both sides and perused the records.
5 CC NO.42270/2010
7. The following points arise for my consideration are:-
1. Whether the prosecution proves beyond all reasonable doubt that, the accused have committed the offences punishable under Section.486, 487 & 420 of IPC ?
2. What Order ?
8. My findings to the above Points are as follows:-
Point No.1:- In the Negative.
Point No.2:- As per the final order:
for the following:-
REASONS Point No.1:-
9. In order to establish its case, the prosecution had examined in all 2 witnesses as Pws.1 and 2 and got marked 18 documents as Ex.P1 to Ex.P18 and MOs.1 to 11 during the trial.
6 CC NO.42270/2010
10. Pw.1 was working as PSI in Upparpet Police Station had deposed that on 19/03/2010 when he was Station House Officer at 11.45 pm complainant lodged the complaint as per Ex.P1 and he registered the case and sent FIR to the Court. The complainant had submitted the Seizure Mahazar along with complaint and records. Complainant had produced 77 Nokia mobile phones belonging to different companies. Pw.1 had identified 5 mobile phones as per MOs.1 to 5 and other aspects, one blue tooth machine as per MO.6, one ear phone as per MO.7, mobile phone covers as per MO.8, four batteries as per MO.9 and mobile phone hand set cover as per MO.10.
It is elicited in the cross-examination of Pw.1 that "¦üAiÀiÁð¢AiÀÄ eÉÆvÉUÉ ¦üAiÀiÁðzÀÄzÁgÀgÀÄ AiÀiÁªÁåªÀ zÁR¯ÉUÀ¼À£ÀÄß ¸À°è¹zÀgÀÄ JAzÀÄ £À£UÀ É UÉÆwÛgÀĪÀÅ¢®è. ªÉÄÃ¯É ºÉýzÀ AiÀiÁªÀÅzÉà ªÀÄÄzÉÝ ªÀiÁ®ÄUÀ¼À ªÉÄÃ¯É CªÀÅU¼À £À ÀÄß ¥ÀqÉzÀÄPÉÆAqÀ §UÉÎ £Á£ÀÄ ¸À»AiÀÄ£ÀÄß ªÀiÁrgÀĪÀÅ¢®è".
7 CC NO.42270/2010
11. Pw.2 is the Police Inspector who is the 1st informant had deposed that on receipt of written information from ACP which was submitted to him by Cw.2 on 19/03/2010, he along with staff Cw.2 and his team members conducted a raid on shop No.52 belonging to accused No.1, shop No.53 belonging to accused No.2, shop No.25 belonging to accused No.3, shop No.40 belonging to accused No.4 and shop No.58 belonging to accused No.5. He found many mobile phones with Nokia brand name and accessories and Cw.2 had identified those mobiles as duplicate ones. He seized around 24 different models of Nokia mobiles. Accused Nos.1 to 5 failed to produce valid bills for possessing the above articles. Cws.2, 5, 7 and 8 are the persons who identified the mobile phones and accessories as counterfeit items. All the articles were seized under the Mahazar as per Ex.P3 in the presence of panchas. At the time of raid Cws.2, 5, 7 and 8 had 8 CC NO.42270/2010 brought original Nokia products with them for comparison with the counterfeit items.
12. Pw.2 had deposed in detail the role played by him during the investigation and after conducting the investigation Pw.2 had filed the charge sheet against the accused.
It is elicited in the cross-examination of Pw.2 that "¦üAiÀiÁð¢zÁgÀgÀÄ DgÉÆævÀgÀ CAUÀrAiÀÄ°è £ÉÆÃQAiÀiÁ ªÉƨÉʯïìUÉ ¸ÀA§AzÀs¥ÀlÖAvÉ £ÉÆÃQAiÀiÁ ªÀiÁqɯïì, DPÉì¸ÀjÃ¸ï ºÁUÀÆ ZÁdðgïUÀ¼£À ÀÄß ªÀÄvÀÄÛ qÀƦèPÉÃmï ¨ÁPïì£À°è £ÉÆÃQAiÀiÁ ªÉƨÉʯïUÀ¼À£ÀÄß ©¯ï E®èzÃÉ ªÀiÁgÁl ªÀiÁqÀÄwÛzÀÝÁgÉ J£ÀÄߪÀ §UÉÎ ©¯ï C£ÀÄß ºÁdgÀÄ¥Àr¹gÀĪÀÅ¢®è".
"¸ÀzÀj CAUÀrUÉ zsÁ½ ªÀiÁqÀĪÀ ªÉÆzÀ®Ä D CAUÀrAiÀÄ°è qÀÀƦèPÉÃmï ªÉÄÁ¨Éʯï C£ÀÄß ªÀiÁgÁl ªÀiÁqÀÄwÛzÀÝÁgÉ J£ÀÄߪÀ §UÉÎ CzÀ£ÀÄß Rjâ¹ CzÀPÉÌ ¸ÀA§AzÀs¥l À ÖAvÉ ©¯ï C£ÀÄß ¥ÀqÉzÀÄPÉƼÀî®Ä £À£UÀ É C¨ÀsåAvÀgÀ EgÀ°®è".
"D ¢£À CAUÀr £ÀAB 52 ªÀÄvÀÄÛ EvÀgÀÉ CAUÀrUÀ¼° À è CªÀiÁ£ÀvÀÄÛ¥Àr¹PÉÆAqÀ ªÉƨÉʯïUÀ¼À ªÉÄÃ¯É £À£Àß ¸À»AiÀÄ£ÀÄß ªÀiÁrgÀĪÀÅ¢®è. D ¢£À zsÁ½ ªÀiÁrzÀ J¯Áè 5 CAUÀrAiÀÄ°è ©®è£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ ªÉƨÉʯï C£ÀÄß Rjâ ªÀiÁqÀ®Ä £À£UÀ É C¨ÀsåAvÀgÀ EgÀ°®è".
"D ¢£À £Á£ÀÄ CªÀiÁ£ÀvÀÄÛ¥Àr¹PÉÆAqÀ ªÉƨÉʯïUÀ¼ÀÄ qÀƦèPÉÃmï J£ÀÄߪÀ §UÉÎ CzÀ£ÀÄß ºÉÆðPÉ ªÀiÁqÀ®Ä £ÉÆÃQAiÀÄÁ PÀA¥À¤AiÀĪÀgÀÄ Mjf£À¯ï ªÉƨÉʯï C£ÀÄß £À£UÀ É PÉÆnÖgÀĪÀÅ¢®è. ¸ÁQë ªÀÄÄAzÀĪÀjzÀÄ CªÀgÀÄ £ÉÊd ªÀ¸ÀÄÛ«£À PÁål¯ÁUï C£ÀÄß PÉÆnÖgÀÄvÁÛgÉ JAzÀÄ ºÉüÀÄvÁÛgÉ. EzÀÄ 9 CC NO.42270/2010 Mjf£À¯ï ªÉƨÉÊ¯ï ªÀÄvÀÄÛ qÀƦèPÉÃmï ªÉƨÉʯï JAzÀÄ ºÉüÀĪÀ §UÉÎ £Á£ÀÄ JPïì¥Àm s ïð DVgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. £ÉÆÃQAiÀiÁ PÀA¥À¤AiÀĪÀgÀÄ ªÉƨÉʯï qÀƦèPÉÃmï JAzÀÄ ºÉýzÀ PÁgÀt ªÀÄvÀÄÛ CªÀgÀÄ zÁR¯ÉAiÀÄ£ÀÄß PÉÆlÖ PÁgÀt £Á£ÀÄ F PÉøÀ£ÀÄß ªÀiÁrgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj".
"£Á£ÀÄ £ÀªÀÄä r¥ÁmïðªÉÄAmï ªÀÄÆ®PÀ F PÉù£À ¦üAiÀiÁð¢zÁgÀgÀÄ £ÉÆÃQAiÀÄÁ PÀA¥À¤AiÀÄ°è PÉ®¸À ªÀiÁqÀÄwÛzÁÝgÉ ªÀÄvÀÄÛ CªÀgÀÄ JPïì¥Àl s ïð DVgÀÄvÁÛgÉ JA§ §UÉÎ £ÉÆÃQAiÀÄÁ PÀA¥À¤¬ÄAzÀ £Á£ÀÄ C©ü¥ÁæAiÀĪÀ£ÀÄß vÀj¹PÉÆArgÀĪÀÅ¢®è".
"AiÀiÁªÀÅzÉà UÁæºÀPÀgÀÄ DgÉÆæAiÀÄ CAUÀr¬ÄAzÀ £ÉÆÃQAiÀiÁ ªÉƨÉʯï C£ÀÄß Rjâ ªÀiÁr ªÀAZÀ£ÉUÉƼÀ¥l À Ö §UÉÎ AiÀiÁªÀÅzÉà zÀÆgÀ£ÀÄß PÉÆnÖgÀĪÀÅ¢®è".
"£Á£ÀÄ ºÉüÀĪÀ £ÀP° À £ÉÆÃQAiÀÆ ªÉƨÉʯï C£ÀÄß vÀAiÀiÁgÀÄ ªÀiÁqÀĪÀªÀgÀÄ ªÀÄvÀÄÛ «vÀgÀuÉ ªÀiÁqÀĪÀªÀgÀÄ AiÀiÁgÀÆ ¥ÀvÉÛAiÀiÁVgÀĪÀÅ¢®è".
13. The question that arises for consideration is whether the evidence on record is sufficient to bring home the guilt of the accused persons.
14. The case of the prosecution suffers from inherent infirmities. Cws.2, 5, 7 and 8 of M/s.Nokia India Private Limited who are alleged to have examined the seized Nokia mobiles and accessories and certified that the seized Nokia 10 CC NO.42270/2010 mobiles and accessories are counterfeit ones, have not been examined by the prosecution.
15. It is the case of the prosecution that Cws.2, 5, 7 and 8 were present at the time of raid and they had brought the original Nokia mobiles and accessories with them and they compared the counterfeit Nokia mobiles and accessories with the original and came to conclusion that the accused were selling duplicate Nokia mobiles and accessories to the public. No Certificate regarding the comparison of original with the duplicate Nokia mobiles and accessories and the basis for Cws.2, 5, 7 and 8 to come to the conclusion that they were duplicate Nokia mobiles and accessories is produced by the prosecution. There is no evidence before the Court that Cws.2, 5, 7 and 8 had compared the counterfeit Nokia mobiles and accessories with the original ones. There is no evidence that Cws.2, 5, 7 and 8 have done analysis of comparing with the original 11 CC NO.42270/2010 counterfeit Nokia mobiles and accessories and their opinion report. In the absence of any analysis and report by Cws.2, 5, 7 and 8 for having compared the original with the duplicate Nokia mobile phones and accessories, it is not possible to hold that the accused were selling counterfeit mobile phones and accessories.
16. It is pertinent to note that the Investigating Officer had not sent the so called seized counterfeit Nokia mobiles and accessories to an expert to examine them and submit the report. Pw.2 had not produced any documents to show that Cws.2, 5, 7 and 8 had obtained training in Nokia Company, and are competent to examine the original Nokia mobiles and accessories and counterfeit ones. There is no evidence that Cws.2, 5, 7 and 8 are experts in comparing the original and counterfeit Nokia mobile phones and accessories. Pw.2 says that he is not an expert in comparing the original Nokia mobile phones with the duplicate mobiles and 12 CC NO.42270/2010 accessories. Admittedly, Pw.2 is not an expert in that field. Hence, the evidence of Pw.2 that since the accused have failed to give satisfactory answers for possessing the seized articles and relevant bills, he came to the conclusion that the accused had committed various offences as mentioned in the charge sheet, looks unnatural and cannot be accepted. In the absence of the expert opinion, the mere evidence of Pws.1 and 2 are not sufficient and does not inspire the confidence of the Court. The Nokia mobiles and accessories seized are not compared by the authorized competent persons of the Nokia Company so as to come to the conclusion that the said Nokia mobiles are counterfeit ones.
17. No eye witnesses are examined by the prosecution. Cws.3 and 4 who are the attesting witnesses to Seizure Panchanama Ex.P3, have not been examined. The Seizure Panchanama is not proved.
13 CC NO.42270/2010
18. There is absolutely no evidence to establish that the accused persons were selling counterfeit Nokia mobiles and accessories in the respective shops to the public. There is no document, not even a Certificate to show that the seized articles are counterfeit ones. It appears that nobody is interested to support the case of the prosecution. Further the prosecution has not produced any documents to show that whether accused Nos.1 to 5 are the owners or workers or manufacturers in the respective shops in the M/s.New Hong Kong Bazaar. The link between the accused persons and the alleged crime is missing. On the basis of the evidence of police officers only, it is not possible to prove the case of the prosecution. The learned Counsel for accused vehemently argued that the complainant police had deliberately registered the case against the accused persons who are only workers in the said shop and no case is registered against the owners of the said shops or the 14 CC NO.42270/2010 manufacturers. Except Cw.2, none of the competent persons of the respective real manufacturing companies have complained that their trade names are misused while manufacturing such counterfeit Nokia mobiles and accessories. Not much of discussion is necessary since there is no incriminating evidence against the accused persons. The evidence on record is insufficient to prove the case of the prosecution. The prosecution has failed to prove that the accused persons had committed the alleged offences. Accordingly, Point No.1 is answered in the Negative.
19. Point No.2:-
In the result, I proceed to pass the
following:
O R D E R
Acting U/s.248(1) Cr.P.C. I hold that, accused Nos.1 to 5 are not found guilty of having committed the offences punishable under Sections 486, 487 and 420 of IPC.
15 CC NO.42270/2010Accused Nos.1 to 5 are hereby acquitted of the offences alleged against them and they are set at liberty forthwith.
The bail bonds executed by the accused Nos.1 to 5 and their surety stand cancelled.
(Dictated to the stenographer, transcript thereof, computerized revised and then corrected by me and then pronounced in open court on this the 10th day of April 2015).
(Krishna Prasad Rao Kalmady) I Addl.CMM, Bangalore.
ANNEXURE List of witnesses on behalf of prosecution:
PW.1 C.Narayanaswamy Pw.2 G.V.Udaya Bhaskar
List of documents on behalf of prosecution:
Ex.P1 Complaint
Ex.P1(a&b) Signatures of Pws.1&2
Ex.P2 FIR
Ex.P2(a) Signature of Pw.1
Ex.P3 Seizure Mahazar
Ex.P3(a) Signature of Pw.2
Ex.P 4 Complaint/information given by Cw.2
to ACP.
Ex.P4(a&b) Signatures of Pw.2 & ACP 16 CC NO.42270/2010 Ex.P5 to 16 Annexure 1 to 12 Ex.P16(b) Annexure 12(b) Ex.P17 Data sheet Ex.P18 Documents from page Nos.86 to 156 Material Objects Produced:-
MOs.1 to 5 Mobiles
MO.6 Bluetooth
MO.7 Earphone
MO.8 Mobile covers
MO.9 Batteries
MO.10 Handset cover
MO.11 Mobile tags
Witnesses examined on behalf of the defence,
documents marked:- NIL.
I Addl.CMM, Bangalore.
17 CC NO.42270/2010
10/04/15
State by Sr.APP
Accused Nos.1 to 5 C/B
For orders
(Judgment pronounced in the Open Court, vide separate order) O R D E R Acting U/s.248(1) Cr.P.C. I hold that, accused Nos.1 to 5 are not found guilty of having committed the offences punishable under Sections 486, 487 and 420 of IPC.
Accused Nos.1 to 5 are hereby acquitted of the offences alleged against them and they are set at liberty forthwith.
The bail bonds executed by the accused Nos.1 to 5 and their surety stand cancelled.
I Addl.CMM, Bangalore.
18 CC NO.42270/201019 CC NO.42270/2010 Accused Nos.1 and 2 along with others in furtherance of common intention to cheat the customers of ICICI Bank falsely fabricated a template of ICICI Bank with an intention to send phishing mails to obtain login details. Cw.2 is having his Bank account in ICICI Bank NRI Account No.0002010814477 at M.G.Road Branch, Bengaluru. Accused No.1 a Professional Cyber Criminal has sent a phishing e-mail inducing the complainant for providing login particulars by personating the Bank under the pretext of updating the account. Being induced by the phishing e-mail sent by the accused 20 CC NO.42270/2010 No.1, Cw.2 has furnished the login particulars of his above said bank account. Accused No.2 had hacked into the said NRI account of the complainant by using the login particulars furnished by Cw.2 and got transferred Rs.4 Lakhs illegally, of which Rs.2 Lakhs was given credit to the account No.627701511410 of accused No.4 in ICICI Bank, Vivekananda Road Branch, Kolkata and rest of Rs.2 Lakhs to the account No.054001501701 of accused No.5 maintained at ICICI Bank, Prince Anwar Shah Road Branch, Kolkata. Accused No.3 has arranged to withdraw the said amount through accused Nos.4 and 5 and shared the amount amongest the accused persons and caused wrongful loss to Cw.2 and thereby committed the offences punishable u/Sec.66(C) and 66(D) of the Information Technology Act 2008 and Section 417 r/w 34 of IPC.