Bangalore District Court
P.W.2 Arun.P Is The Seizure Mahazar ... vs Person Is The Owner Of Bhavani Garments ... on 15 December, 2015
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 15th day of December 2015
Present : Sri.J.V.Vijayananda, B.Com., LL.B
IX Addl.C.M.M.Bangalore.
JUDGMENT U/S.355 OF Cr.P.C..
1.CC No 22121/2012
2.Date of Offence 16-7-2012
3.Complainant State by City Market Police Station
4.Accused Sanjay Agarwal
S/o Shyam Sundar Agarwal, aged 43
years, No.147/2, 1st Floor, 6th Cross,
3rd Main Road, Near Edga Field,
Chamrajpet, Bangalore.
5. Offences complained U/s. 51(1), (b) and 63 of Copyright
of Act.
6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted
8.Date of Order 15-12-2015
REASONS
The Sub Inspector of Police, City Market Police Station,
Bengaluru has filed this charge sheet against the accused for
the offences punishable U/s. 51(1), (b) and 63 of Copyright
Act, 1957.
2 C.C.No.22121/2012
2. The brief facts of the prosecution case are that, on
16-7-2012 in Bhavani Garments shop, situated at Lal
building, Mamulpet road, within the limits of City Market
Police Station, the accused being the owner of the said shop
was found in possession and selling of counterfeit/duplicate
readymade T-shirts in the name brand name of US Polo over
which the Polo Lauren company limited had copyright and
thereby infringed copyright of the said company and
committed aforesaid offences.
3. The accused is on bail. On receipt of charge sheet
copies, this court took cognizance of the offence and furnished
the copies of the prosecution papers to the accused. After
hearing on charges, this court framed the charge for the
offences punishable U/s.63 of Copyright Act, 1957 and read
over to the accused in the languages known to him, he
pleaded not guilty and claimed to be tried.
4. The prosecution to prove the guilt against accused
has examined two witnesses as P.Ws.1 and 2 and got marked
8 documents at Exs.P.1 to Ex.P8 and also marked one
material object as per M.O.1.
5. Thereafter, statement of accused as required under
section 313 of Cr.P.C., has been recorded. The accused has
accepted some incriminating evidence appeared against him,
but did not claim to adduce defence evidence.
3 C.C.No.22121/2012
6. I have heard the arguments on both sides.
7. The prosecution to prove guilt against accused has
examined two witnesses. P.W.1 M.V.Suresh Babu is the
complainant. P.W.2 Arun.P is the seizure mahazar witness. It
appears inspite of giving sufficient opportunities the
prosecution has not examined other witnesses on record.
8. The testimony of P.W.1-M.V.Suresh Babu indicating
that on 16-7-2012 he received message about selling of
counterfeit garments in different brand name of Tommy
Hilfiger, calvin cleen, Rolls Florence and US Polo in Surya
Fashions and Bhavani Garments at Mamulpet road, Bangalore
of his representative companies. Accordingly, he visited City
Market Police Station and lodged complaint. Intern the PSI of
said Police Station called two persons as panchas and
thereafter said PSI, himself, his staff and panchas visited
Surya Fashions Shop and found one person. C.W.6 the PSI
introduced himself and made known the purpose of his visit to
the said person. The said person was questioned regarding
possession of counterfeit cloths in different brand names but
the said person has pleaded no. Thereafter, the said PSI asked
the complainant to verify regarding counterfeit cloath and
accordingly he verified but did not found any counterfeit
cloths.
9. Thereafter, he PSI, panchas and other staff of PSI
visited Bhavani garments and found one person. C.W.6
4 C.C.No.22121/2012
introduced himself to the said person and made known
purpose of his visit. The said PSI CW.6 herein asked the said
person to produce counterfeit garments in different brand
names. Accordingly, the said person has produced 150 T-
shirts in the brand name of US polo. C.W.6 has asked the
complainant to explain the differences between counterfeit and
original cloths. Accordingly, the complainant explained the
same to the panchas. Thereafter, C.W.6 has seized 150 t-
shirts by preparing the seizure mahazar and obtained his
signature. It is to be, noted here that, the further examination
of P.W.1 deferred for want of production of some documents.
Subsequently, P.W.1 has not turned up for further
examination.
10. The testimony of P.W.2 Arun.P the seizure mahazar
witness indicating that on 16-7-2012, C.W.6 the PSI of City
Market Police Station called him and C.W.3 to the station as
panchas. When he visited said station, C.W.1 was in the said
station. C.W.1 has informed that he is the representative of
Polo, Calvin cleen, and Tommy Hilfiger companies. C.W.6
requested him to stand as panchas in the raid about
counterfeit cloths. Accordingly, C.W.6 took him another
panchas, C.W.1 and his staff to the Surya Fashion shop
situated at Lal building. They found one person in the said
shop. C.W.6 introduced himself to the said person.
Thereafter, C.W.1 has verified the said shop about any
counterfeit cloth but he did not found.
5 C.C.No.22121/2012
11. Thereafter, they visited shop No.6 Bhavani garments
and found 150 counterfeit t-shirts in the brand name of US
polo. C.W.1 has identified the said cloths as counterfeit.
Thereafter, C.W.6 has seized the same by preparing the
seizure mahazar and he signed the seizure mahazar. Even the
further cross-examination of P.W.2 deferred at the request of
counsel for the accused. Subsequently he has also not turned
up for further examination.
12. As stated above inspite of giving sufficient
opportunities, the prosecution has not examined any other
witness on record. In a case like this, the offence has to be,
proved in a circumstantial evidence by way of proving the
seizure mahazar of 150 t-shirts in the brand name of US Polo
by preparing the seizure mahazar at Ex.P.1. As stated above
the prosecution to prove seizure mahazar has examined two
witnesses. Now the question for consideration before the court
is whether the evidence of above referred witnesses is
sufficient to conclude that the prosecution has proved the
seizure mahazar beyond all reasonable doubt. As stated
above though P.W.1 and 2 have supported the case of the
prosecution in their chief examination, they have not turned
for cross-examination. As per well settled law, if the evidence
of any witness records in part, for some reason the further
evidence of said witness defers, subsequently the said witness
did not turn up before the court, in such circumstances
whatever the evidence of said witness cannot be looked into.
6 C.C.No.22121/2012
In the instant case, P.W.1 has not turned up for further
examination and P.W.2 for cross-examination. Therefore, in
view of above discussed settled position of law the testimony of
P.W.1 and 2 cannot be looked into.
13. Moreover, inspite of giving sufficient opportunities,
the prosecution has not examined another independent
seizure mahazar witness and the Investigating Officer who
conducted the raid i.e., C.W.6 herein to prove the seizure
mahazar. Therefore, the prosecution has failed to prove the
seizure mahazar beyond all reasonable doubt.
14. Apart from proving the seizure mahazar, the
prosecution has also to prove that the seized cloths are
counterfeit in the brand name of US polo. It appears the
investigating officer C.W.6 herein during the course of
investigation has not obtained any report from anybody to
prove that the seized cloths are counterfeit in the brand name
of US polo. Probably C.W.6 the investigation officer has based
the say of P.W.1 at the time of seizure mahzar that the seized
cloths are counterfeit and has concluded that the sized cloths
are counterfeit. In my opinion, the said conclusion is not
correct for the reason that even if P.W.1 identified the seized
cloths as counterfeit, since he is the representative of the
copyright holder company of US Polo, in order to test his say,
it was necessary on the part of investigation officer to obtain
report from independent expert about seized cloths. Moreover,
7 C.C.No.22121/2012
P.W.1 being the representative of the US Polo Company is
interested in favour of his company. Therefore, it is not
correct on the part of C.W.6 the investigation officer to base
the say of P.W.1 that the seized cloths are counterfeit.
Moreover, inspite of giving sufficient opportunities, the
prosecution has not examined the Investigating Officer.
Therefore, the prosecution has failed to prove that the sized
cloths are counterfeit in the brand name of US polo beyond all
reasonable doubt.
15. Further, the prosecution has not examined any
witness and has not marked any documents to prove that Polo
Lauren Company had copyright over US Polo brand cloths.
Therefore, the prosecution has failed to prove that Polo Lauren
Company had copyright over US Polo brand cloths beyond all
reasonable doubt.
16. Further, the prosecution has not examined any
witness and has not marked any documents to prove that
accused person is the owner of Bhavani garments where the
alleged raid conducted.
17. It is to be noted here that the accused at the time of
recording statement under section 313 of CrPC has accepted
some portion of evidence of PW.1 and 2. Now the question for
consideration before the court is whether the said admission
alone is sufficient to connect the accused for the offences
8 C.C.No.22121/2012
alleged against him. In view of my above discussion even
though P.Ws.1 and 2 supported the case of the prosecution
since they not turned for further examination and cross
examination their evidence cannot be looked into. Moreover,
the prosecution has not examined other witness on record to
prove its case. Under these circumstances I am of the
considered opinion that whatever the admission alone cannot
be based to connect the accused for the offence alleged against
him. Moreover, it is no need to say that the initial burden is
on the prosecution to prove the guilt against accused beyond
all reasonable doubt. Therefore, having regard to the facts
and circumstances of the case and the evidence available on
record, I am of the considered opinion that the evidence on
record is insufficient to conclude that the prosecution has
proved its case beyond all reasonable doubt. Accordingly, the
accused is entitled for benefit of doubt. In the result, I proceed
to pass the following:
ORDER
This court did not found guilt of accused for the offence under section 63 of Copyright Act, 1957.
Consequently, acting under section 248(1) of Cr.P.C., accused has been acquitted for the above-referred offence.
His bail bond and surety bond stands cancelled.
9 C.C.No.22121/2012Office to put the M.O.1 into auction by removing US Polo labels, after appeal period is over.
(Dictated to the Stenographer directly on computer and print out taken by her is verified and then pronounced by me in the open court on this the 15th day of December 2015) (J.V.Vijayananda) IX Addl.Chief MetropolitanMagistrate, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1 M.V.Suresh Babu P.W.2 Arun.P
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1 Complaint Ex.P.1(a) Signature of P.W.1 Ex.P.2 Mahazar Ex.P.2(a) Signature Ex.P.2(b) Signature Ex.P.3 to 5 Trademark registration certificate Ex.P.6 to 8 Resolutions
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION :
M.O.1 T-Shirts LIST OF WITNESSES EXAMINED, DOCUMENTS AND
MATERIALS MARKED ON BEHALF OF THE DEFENCE:
NIL IX ADDL.C.M.M. Bangalore.