Bangalore District Court
Harish Kumar vs Beyond All Reasonable Doubt. ... on 4 February, 2020
1 CC No.506/18
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN MAGISTRATE,
AT BANGALORE.
Dated this the 4th day of February, 2020
Present : Sri.Prakash Channappa Kurubett
B.Sc., LL.B.(Spl).,
IX Addl.C.M.M.Bangalore.
JUDGMENT UNDER SEC.355 OF CR.P.C.
1.C.C.No. 506/2018
2.Date of 09.03.2016
offence
3.Complainant State by Ulsoorgate Police
Station
4.Accused Mahendar Kumar Purohit,
S/o. Bhikaji Purohit,
Aged about 25 years,
R/at. No.1084, PRS Lane,
OTC Road, NT Pet, Bengaluru.
5. Offences U/Sec. 51(B), 63 & 68 of Copy
complained of Right Act.
6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted
8.Date of Order 04/02/2020.
2 CC No.506/18
REASONS
The Police Sub-Inspector of Ulsoorgate Police Station,
Bangalore has filed this charge sheet against the accused persons
for the offences punishable U/Sec.51(B), 63 and 68 of Copy Right
Act.
2. The brief facts of the prosecution case is that on 09/03/2016 at
about 1.00 pm, at No.1074, 3rd floor, PRS Lane, within the limits of
Ulsoorgate Police Station, accused person was selling the duplicate
products of HP Company products i.e. Laptop adopters, chargers
and batteries to the public, without obtaining the valid
permission/license from the copyright owner and infringed the right
of the copyright of the said company. Hence, CW.1- Harish Kumar
lodged first information. The Station House Officer registered a case
in Cr.No.54/2016 for the offences punishable U/Sec.51(B), 63 and
68 of Copy Right Act and submitted First Information Report to this
Court. After investigation, Sub-Inspector of Ulsoorgate Police
Station filed charge sheet for the said offences punishable
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U/Sec.51(B), 63 and 68 of Copy Right Act against the accused
person. Hence, he has committed the alleged offences.
3. Accused person is on bail. On receipt of charge sheet, this
court took the cognizance of the alleged offences and furnished
copy of the prosecution papers to the accused. After hearing on
charge, my Learned Predecessor-in-Office has framed charge for the
offences punishable U/Sec. 51(B), 63 and 68 of Copy Right Act for
which accused pleaded not guilty and claimed to be tried.
4. The prosecution, in order to prove its case, has examined 2
witnesses as PW.1 and PW.2, and documents got marked at Ex.P.1
to Ex.P.5, and material objects at MO.1 and MO.2, and closed the
side of the prosecution evidence, and Statements u/Sec.313 of
Cr.P.C. are recorded, read over and explained in the vernacular
language of the accused, wherein accused has denied the
incriminating circumstances appeared against them as false and
did not choose to lead defence evidence. Hence, defence evidence is
closed. As such, the matter was posted for arguments.
4 CC No.506/18
5. I have heard the arguments on both sides.
6. The PW.1 - Kemparaju Head Constable deposed that on
09/03/2016 at about 10.35 pm, PSI - Kiran took him, and his staff
i.e. Suresh and Yellalinga police constables were went to the house
of the accused at 3rd floor, TRS Lane, NT Pet, OTC Road, along with
complainant - Harish Kumar, and in the said house accused was
was selling the duplicate products of HP Company products i.e.
Laptop adopters, chargers and batteries to the public, without
obtaining the valid permission/license from the copyright owner and
infringed the right of the copyright of the said company by using the
duplicate stickers, logo etc and complainant found that they were
duplicate, and PSI drawn panchanama and seized the same and he
gave statement before the Investigating Officer. But PW.1 has not
subsequently appeared for cross-examination. In spite of sufficient
opportunities, PW.1 did not turn up. At this stage, I rely upon
following decisions:
5 CC No.506/18
(1) The Hon'ble High Court of Karnataka in edition between
Smt.A.B.Neela and Dinesh Reddy (Crl.Revision Petition No.336/2008) held
as under:
"In this regard, the learned counsel for petitioner places reliance
on a decision of this Court by Crl.Revision Petition No.376/2007
dated 25/02/2012. Wherein, this Court, in extensor, considered the
effect of a witness not offering of himself for cross-examination, and
whether the evidence so tendered without offering himself for cross-
examination can be accepted by the Court, and considered as a part
of the record in addressing the matter and has held that the evidence
is not complete, if the witness has not offered himself for cross-
examination, and also observed that in terms of Sec.167 of Evidence
Act 1872, there is no question of placing a ground that there has
been improper of admission or rejection of the evidence, to claim a
new trial or reversal of any decision..............
In view of the matter this bench fully endorses the opinion
expressed by the learned single judge in the above case. With
reference to the several provisions of the Evidence Act, it could not be
said that without witness offering himself for cross-examination, the
evidence tendered by him could not be accepted".
(2) 2009 Cri.L.J. 4452 between the State of Orissa vs Prasanna
Kumar Mohanty. Wherein, the Hon'ble Supreme Court held as under:
9. Section 33 of the Indian Evidence Act, 1872 reads as
under:-
"33. Relevancy of certain evidence for provin, in
subsequent proceeding, the truth of facts therein stated. -
Evidence given by a witness in a judicial proceeding or
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before any person authorised by law to take it, is relevant
for the purpose of proving, in a subsequent judicial
proceeding, or in a later stage of the same judicial
proceeding, the truth of the acts which it states, when the
witness is dead or cannot be found, or is incapable of
giving evidence, or is kept out of the way by the adverse
party, or if his presence cannot be obtained without an
amount of delay or expense which, under the
circumstances of the case, the Court considers
unreasonable:
Provided -
That the proceeding was between the same parties or
their representatives in interest:
That the adverse party in the first proceeding had the
right and opportunity to cross-examine :
That the question in issue were substantially the same
in the first as in the second proceeding."
9A. The said provision therefore, will be applicable
inter alia in a case where either the witness who has been
examined in chief is incapable of giving evidence or is
absent without any amount of delay or expense which the
Court considers unreasonable.
10. The Criminal trial or inquriy shall be deemed to
be a proceeding in terms of the explanation appended to
Section 33 between the prosecution and the accused.
however, in this case, despite the fact that two
opportunities were granted to the defence for cross
7 CC No.506/18
examining the said Investigating Officer but he was, as
noticed herein before, was recalled for cross-examination.
Furthermore, since 2003 to 2006 he did not make himself
available for his cross-examination. In that view of the
matter, we are of the opinion that Section 33 of the
Evidence Act is not applicable to the facts of the present
case."
The evidence of PW.1 is incomplete. In view of above ratios, the
evidence of PW.1 could not be accepted.
7. The PW.2 Kiran.P.B. Police Inspector deposed that on
09/03/2016 at about 10.30 pm, when he was on station duty, one
Harish Kumar, Investigating Officer, EIPR India Limited came to
Police Station and gave written complaint is marked at Ex.P.1
against accused persons, and on the basis of it, he registered a
case in Cr.No.54/16, and submitted FIR is marked at Ex.P.2 to the
Court. He further deposed that himself, complainant and CW.2
and CW.3 went to the said house, and seized laptop chargers and
HP 215 batteries and drawn panchanama at Ex.P.3, and recorded
the voluntary statements of accused, and recorded the statements
8 CC No.506/18
of witnesses, and obtained opinion report and licence are marked at
Ex.P.4 and Ex.P.5, and after completion of investigation filed charge
sheet against accused person Here in this case, the accused
counsel not cross-examined the PW.2.
8. The evidence of PW.1 and 2 clearly establishes that the alleged
seized M.O.1 has not been packed, sealed and pasted with a slip
having the signatures of panch witnesses and Investigating officer.
Hence, there is no clear, cogent and reliable evidence to prove the
guilt of accused as alleged by the prosecution case.
9. The other witnesses, i.e. CW.1 to CW.3 and CW.7 did not turn
up in spite of taking coercive steps and they were dropped by
rejecting the prayer of learned Sr.APP and CW.4 to CW.6 given-up.
The above evidence creates reasonable doubt in the prosecution.
The benefit of doubt always goes to accused. Hence, I am of the
considered opinion that prosecution failed to prove the guilt of
accused beyond all reasonable doubt. Consequently, I proceed to
pass the following:
9 CC No.506/18
ORDER
Acting under Section 248(1) of Cr.P.C., Accused is hereby acquitted for the offences punishable U/Sec. 51(B), 63 and 68 of Copy Right Act.
The bail bond and surety bond of accused stands cancelled.
The property seized in PF No.23/16 shall be confiscated to State, after appeal period is over.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected & then pronounced by me in the Open Court dated this the 4th day of February, 2020.) (P.C.KURUBETT) IX Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
PW.1: Kemparaju
PW.2: Kiran.
10 CC No.506/18
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
PROSECUTION:
Ex.P1 : Complaint
Ex.P1(a): Signature of PW.2 Ex.P2 : FIR Ex.P2(a): Signature of PW.2 Ex.P3 : Panchanama Ex.P3(a) : Signatures of PW.2 Ex.P4 : Panchanama Ex.P4(a) : Signatures of PW.2 Ex.P5 : Licence.
List of material objects marked on behalf of the prosecution:
MO.1 & 2: Batteries, chargers & adopters. List of witnesses examined on behalf of the defence:
NIL.
List of documents and materials marked on behalf of the defence:
NIL.
IX ADDL.C.M.M. Bangalore.