Delhi District Court
State (Govt. Nct Of Delhi) vs Sh. Sunil Bhambri on 2 January, 2016
Unique ID No. 02401R0643912015
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
Criminal Revision No. 57/2015
Unique ID No. 02401R0643912015
State (Govt. NCT of Delhi)
Through Public Prosecutor (Central) Delhi .....Petitioner
Versus
Sh. Sunil Bhambri
S/o Sh. K.L. Bhambri,
R/o Silver Oak Apartment, Flat No. C-12,
Plot No.109, I.P. Extension, Delhi ..... Respondent
Instituted on : 28th November 2015
Argued on : 2nd January 2016
Decided on : 2nd January 2016
ORDER
1. This revision U/S 397 of the Code of Criminal Procedure (Cr.P.C.) is preferred against the order dated 26th September 2015, passed by the Court of Sh. V.K. Gautam, Ld Additional Chief Metropolitan Magistrate, Central District, Tis Hazari Courts, Delhi, whereby accused had been discharged.
2. In brief, facts leading to the filing of this revision petition are as under:
Case of the prosecution is that on 26th April 2011, Sh. Arif Ali, AR of the M/s Hindustan Liver Ltd and M/s Nivea India Pvt. Ltd. lodged a complaint with the DCP alleging that spurious goods having the copy right of the company are being sold by some persons in violation of the copy rights and making whose profits by selling the same. It was alleged that M/s Hindustan Liver and M/s Nivea India Pvt. Ltd. were owner of trade mark of various articles/products named Nivea, Ponds, Sunsilk, Lakme and Axe. Pursuant to premises of the accused Sunil Bhambri situated at E-2/253, First Floor, Main Road, Shastri Nagar, Delhi, was raided and from where 124 cartons having 1993 Crl.L.j.232C.R. No. 57/15 State Vs. Sunil Bhambri 1 Unique ID No. 02401R0643912015 864 pieces each of Nivea Lip Care and 231 cartons having 600 Ponds 50 ml were recovered. Total 355 cartons were recovered and seized vide seizure memo in the presence of complainant Arif Ali, HC Surender and HC Rajender by the IO Si Darshan Lal whereupon FIR No. 133/2011, PS Sarai Rohilla was registered vide entry no. 21A.
On conclusion of investigation, charge sheet was filed in the trial court on 14 th December 2011. Accused was charge sheeted for commission of offence U/S 63 of Copy Rights Act and 420 IPC. Ld trial court took cognizance and summoned the accused. On 18th December 2012, an application U/S 239/245 Cr.P.C. seeking discharge of the accused filed by the accused. Arguments on the said application and on charge were heard and vide impugned order dated 26 th September 2015, Ld trial court discharged the accused observing that no prima facie case U/S 63 of the Copy Rights Act and 420 IPC was made out in the present case.
3. Shri G.S. Guraya, Learned Additional PP for State (petitioner herein) submitted that spurious goods belonging to the complainant company were seized by the police on 23rd February, 2010 and accused persons were not having any authorization to possess and to sell or purchase the goods regarding which the complainant company was having Copy Right and trade mark. It is submitted that possession of huge quantity of spurious goods indicates that it was for sale and thus, accused caused huge loss to the complainant company and committed violation of copyright act and committed cheating. As regards the question that Section 420 IPC is attracted in the case, Learned APP submitted that accused was found in possession of the goods having label and logo of the complainant companies. It is submitted that since the goods recovered are in huge quantity therefore presumption should be raisedthat accused had stored them for selling without any authority, permission or invoices from 1993 Crl.L.j.232C.R. No. 57/15 State Vs. Sunil Bhambri 2 Unique ID No. 02401R0643912015 M/s Hindustan Lever.
4. Per contra, Sh.Neeraj Grover, ld.Counsel for the respondent argued that entire charge sheet even if taken as a gospel truth, does not disclose any offence under Section 63 of Copyright Act, 1963 and/or Section 420 IPC been committed by the respondent/accused. Neither the accused has been connected in any manner with the alleged recovery nor the goods have been conclusively found to be counterfeit/duplicate. It is submitted that there is no allegation of any inducement or delivery of any property and as such the essential ingredients of cheating punishable under Section 420 IPC are not made out and no case for charge is made out and the accused are liable to be discharged and there is no infirmity in the discharge order passed by the Ld. ACMM. Without prejudice to the factual submissions, it is argued that no case was made against the respondents even on legal grounds as the respondents could not be convicted of the offences alleged to have been committed by him due to legal bar of prosecution under the provisions for which the respondents were charge- sheeted.
5. Ld. Counsel further argued that no offence under the provisions of Copyright Act, 1957 was made out against the respondents as no copyright can subsist in respect of the subject matter of case in view of the legal bar and admittedly, packaging(s) of the goods alleged to be recovered from the respondent/accused, the alleged artwork is mechanically/industrially reproduced and such packaging(s) used to sell goods are obviously commercial arte-facts. Background, the bar contained in Section 15(2) comes into play as such art work is capable of being registered under the Designs Act, 2000 and no registration was claimed. Reliance is placed by ld. counsel on a case reported 1993 Crl.L.j.232C.R. No. 57/15 State Vs. Sunil Bhambri 3 Unique ID No. 02401R0643912015 as Anil Kumar v/s State of Punjab 1 wherein it was held that as the labels on the goods ceased were mechanically reproduced no offence under the Copyright Act, 1963 was made out and the criminal proceedings were quashed. Ld. Counsel also placed reliance on the law laid down by the Hon'ble High Court of Delhi in a matter titled Microfibres Inc. Vs. Girdhar & Co. & Anr 2, wherein it has been held that by virtue of operation of the provision of sec. 15(2) of the Copyright Act, no copyright shall be available in respect of any work mechanically reproduced more than 50 times. It has further been held that in terms of the legislative intent, no protection under the provision of copyright act is available to the works which are commercial in nature. Ld. counsel relied upon Syed Kaleem v/s Mysore Lakshmi Beedi 3, wherein it is held that where the offences alleged were primarily under the Trade & Merchandise Marks Act, 1958, the charge under Section 420 was wholly inapt. Reliance has also been placed on Mustan patel v/s State of West Bengal4, Zahir Ahmed v/s Azam Khan5, Piyara Singh V/s State of Punjab6 and Gurmukh Singh v/s State of Punjab7.
6. It is submitted that in Zahir Ahmed Vs. Azam Khan8 it was held that:
"Sadly for the opposite parties, there is not the merest and faintest whisper about any of the aforesaid. ingredients within the four corners of the F.I.R. The F.I.R. being, what it is, no case for an offence punishable u/s 420, I.P.C. could be said to have been made out as such. And, as held by a learned single Judge of Karnataka High Court in Syed Kaleem v. Mysore Lakshmi Beedi Works, 1993 Cri LJ 232, In view of Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 providing penalty for applying false trade descriptions etc. and selling goods to which a false trade mark or false trade description is applied, as alleged in the relevant case before us, a charge u/s 420, I.P.C. becomes wholly inapt, I fully 1 2012(51)PTC159 2 2009 (4) PTC 519 3 1993 Cr.L.J 232 4 2002 (25) PTC 451 5 1996 Cri.L.J 290 6 2002 (3) RCR (Cri) 290 7 2012 (51) PTC 164 8 1996 Crl. L.J. 290 1993 Crl.L.j.232C.R. No. 57/15 State Vs. Sunil Bhambri 4 Unique ID No. 02401R0643912015 concur with the said view."
7. In "State of Bihar Vs. Ramesh Singh9", it was observed that if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In exercising his jurisdiction under Section 227 of the Code the Court 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.
8. Section 14 of Copyright Act explains meaning of copyright, which means the exclusive right subject to the provisions of Act to do or authorize of doing of the acts mentioned therein in respect of work or any substantial part there of. Section 15 Special provides about copyright of designs registered or capable of being registered under the Design Act, 1911. Section 17 of the Act provides that author of the work shall be the owner of the copy right therein subject to the provisions of Act and Section 51 of the Act says when copy right is infringed. Copy right in a work shall be deemed to be infringed-
"when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the condition of a licence so granted or of any condition imposed by a competent authority under this Act (I) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright or...." It specifies when copyright is infringed. As per Section 63 of Copyrights Act, any person who knowingly infringes or abets the infringement of copyright in a
9. AIR 1977 Supreme Court 2013 1993 Crl.L.j.232C.R. No. 57/15 State Vs. Sunil Bhambri 5 Unique ID No. 02401R0643912015 work or any other right conferred by the act is punishable.
9. As per Section 2 (d) of Design Act, "design" means only the features of shape, configuration, pattern, ornament or composition of lines of colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode of principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in Section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of Section 2 of the Copyright Act, 1957.
1. In Microfibres Inc. Vs. Girdhar & Co. & Anr 10, legal position was summarized which is as under:
a. The definition of 'artistic work' has a very wide connotation as it is not circumscribed by any limitation of the work possessing any artistic quality. Even an abstract work, such as a few lines or curves arbitrarily drawn would qualify as an artistic work. It may be two dimensional or three dimensional. The artistic work may or may not have visual appeal.
b. The rights to which a holder of an original artistic work is entitled are enumerated in Section 14(c) of the Copyright act.
c. It is the exclusive right of the holder of a Copyright in an original artistic work to reproduce the work in any material form. For example, a drawing of an imaginary futuristic automobile, which is an original artistic work, may be reproduced in the three-dimensional material form using an element, such as a metal sheet. d. The design protection in case of registered works under the Designs Act cannot be extended to include the copyright protection to the works which were industrially produced.
e. A perusal of the Copyright Act and the Designs Act and indeed the Preamble and the Statement of Objects and Reasons of the Designs Act makes it clear that the legislative intent was to grant a higher protection to pure original artistic works such as paintings, sculptures etc and lesser protection to design activity which is 10 2009 (4) PTC 519 1993 Crl.L.j.232C.R. No. 57/15 State Vs. Sunil Bhambri 6 Unique ID No. 02401R0643912015 commercial in nature. The legislative intent is, thus, clear that the protection accorded to a work which is commercial in nature is lesser than and not to be equated with the protection granted to a work of pure art.
f. The original paintings/artistic works which may be used to industrially produce the designed article would continue to fall within the meaning of the artistic work defined under Section 2(c) of the Copyright Act, 1957 and would be entitled to the full period of copyright protection as evident from the definition of the design under Section 2(d) of the Designs Act. However, the intention of producing the artistic work is not relevant. g. This is precisely why the legislature not only limited the protection by mandating that the copyright shall cease under the Copyright Act in a registered design but in addition, also deprived copyright protection to designs capable of being registered under the Designs Act, but not so registered, as soon as the concerned design had been applied more than 50 times by industrial process by the owner of the copyright or his licensee. h. In the original work of art, copyright would exist and the author/holder would continue enjoying the longer protection granted under the Copyright Act in respect of the original artistic work per se.
If the design is registered under the Designs Act, the Design would lose its copyright protection under the Copyright Act. If it is a design registrable under the Designs Act but has not so been registered, the Design would continue to enjoy copyright protection under the Act so long as the threshold limit of its application on an article by an industrial process for more than 50 times is reached. But once that limit is crossed, it would lose its copyright protection under the Copyright Act. This interpretation would harmonize the Copyright and the Designs Act in accordance with the legislative intent."
10. Allegations in the present case are that brand name and logo of M/s Hindustan Lever and M/s Nivew India Pvt. Ltd having popular brand Nivea, Clinic Plus, Ponds, Sunsilk, Dove, Lakme, Axe etc embossed on product and printed on the label/packing of the product were recovered from the premises of accused. Logo/brand on the product as well as label was registrable as design under the design and thus it came within the purview of Section 15 (2) of the Copy Right Act 1957. Admittedly, goods alleged to be recovered from the permission of respondents/accused persons, alleged logo of the products is mechanically/industrially reproduced/printed/embossed and such goods are commercial arte-facts. In view of the fact that logo/ brand was capable of being registered under the Designs Act, 2000 and no registration was claimed. Thus, 1993 Crl.L.j.232C.R. No. 57/15 State Vs. Sunil Bhambri 7 Unique ID No. 02401R0643912015 no offence under the provisions of Copyright Act, 1957 is made out against the respondents/accused persons as no copyright can subsist in respect of the subject matter of case in view of the legal bar contained in Section 15(2) of the Copyright Act, 1957.
11. Ingredients required to constitute an offence of cheating are that these should be fraudulent or dishonest inducement of a person by deceiving him and the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property or the person so deceived should be intentionally induced to do or omit if he were not so deceived. Admittedly there is no complaint from any person or consumer that they have been cheated for purchase of any article belonging to the complainant. Admittedly, in the present case there is no allegation that any customer who had purchased or was purchasing the goods belonging to M/s Hindustan Lever and Nivea India Pvt. Ltd. was mis represented or cheated by the accused persons by selling the products as genuine one. Admittedly it is not the case of prosecution that any decoy customer was sent or to whom the product to be sold. There is nothing in the charge-sheet to show that any person who was cheated or dis- honestly induced by the accused persons to deliver spurious products belonging to M/s Hindustan Lever and Nivea India Pvt. Ltd. This court finds that in the present case, factual matrix does not make out the alleged offence punishable u/s 420, I.P.C., against the accused persons and furthermore, the allegations in the charge-sheet neither make out an offence punishable u/s 420/511 I.P.C.
12. To conclude, this court finds prima facie case for charging accused Sunil Bhambri for the alleged offences is not made out & thus, there is no illegality, procedural irregularity or impropriety in the impugned order passed by Learned Trial 1993 Crl.L.j.232C.R. No. 57/15 State Vs. Sunil Bhambri 8 Unique ID No. 02401R0643912015 Court. No interference in the impugned order is therefore, called for. In the result, revision petition is dismissed.
13. TCR be sent back along with a copy of this order. Revision file be consigned to Record Room. Dasti.
announced in the open court VINAY KUMAR KHANNA
on 2nd January, 2016 Special Judge-CBI (PC Act)-06
THC/Delhi
1993 Crl.L.j.232C.R. No. 57/15 State Vs. Sunil Bhambri 9