Bangalore District Court
And Seizure Mahazar Witness. P.W.2 ... vs Under Trade Marks Act 1999 Instead ... on 18 December, 2015
IN THE COURT OF THE IX ADDL.CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE.
Dated this the 18th 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 22268/2012
2.Date of Offence 19-9-2012
3.Complainant State by Chickapet Police Station
4.Accused Pemmaram
S/o.Megharam, aged 25 years,
No.48/2, Power Comples, Kengeri,
Mysore Road, Bangalore City.
5. Offences complained U/s. 63 and 65 of Copyright Act,
of 1957 and Sec.29, 77, 78, 79 and
81(2) of Trade and Merchandise Act,
1958 and section 420 of IPC.
6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted
8.Date of Order 18-12-2015
REASONS
The Sub Inspector of Police, Chickpet Police Station,
Bangalore has filed this charge sheet against accused for the
offences punishable U/s.63, 65 of Copyright Act, 1957 and
2 C.C.No.22268/2012
section 29, 77, 78, 79 and 81(2) of Trade and Merchandise
Marks Act, 1958 and section 420 of IPC.
2. The brief facts of the prosecution case are that on
19-9-2012 at 3-45 p.m., in Heera marketing shop situated at
V.S.lane, Chickpet within the limits of chickpet Police station,
the accused being the owner of the said shop was found in
possession of counterfeit/duplicate P.V.C. pipes in the brand
name of Universal(S) over which C.W.1 Mahaveer had obtained
trademark and copyright certificates and further the accused
by counterfeiting the name Universal (S) on the duplicate pipes
was selling the same and thereby infringed the copyright and
trademark of complainant company, cheated the complainant
as well as general public and committed aforesaid offences.
3. The accused is on bail. On receipt of charge sheet,
this court took cognizance of the offences and furnished the
copies of prosecution papers to the accused. After hearing on
charges, my learned predecessor in office has framed the
charge for the offences punishable U/s. 63 and 65 of
Copyright Act, 1957 and section 29, 77, 78, 79, 81(2) of Trade
and Merchandise Marks Act 1958 and Sec. 420 of IPC, and
questioned, the accused pleaded not guilty and claimed to try.
4. The prosecution to prove its case got examined two
witnesses as P.Ws.1 and 2 and got marked 6 documents as
3 C.C.No.22268/2012
per Exs.P.1 to Ex.P6 and also marked three material objects
as per M.Os.1 to 3. Since C.Ws.2, 4 and 5 did not turn up
before this court, in the interest of speedy justice to the
accused, by rejecting the prayer of Sr.APP., this court dropped
the examination of said witnesses.
5. Thereafter, this court examined the accused as
required U/s. 313 of Cr.P.C., the accused denied the
incriminating evidence appeared against him and submitted
that he has no defence evidence.
6. I have heard the arguments on both sides.
7. As stated above the prosecution to prove guilt against
accused has examined two witnesses. P.W.1-Mahaveer is the
complainant and seizure mahazar witness. P.W.2 Puneeth is
another seizure mahazar witness. It appears, in spite of giving
sufficient opportunities the prosecution has not examined
other witnesses on record.
8. The testimony of P.W.1 Mahaveer the complainant
indicating that, by obtaining license from the central
government he is manufacturing PVC pipes in the brand name
of Universal(S) in his Micro Plaus pipe industries. On 19-9-
2015, he visited near the shop of accused and found PVC
pipes in his brand name. Since the accused not purchased
4 C.C.No.22268/2012
any pipes from his industry, he lodged complaint to the
Chickpet police station. Intern the Chickpet police visited the
shop of accused, his godown found counterfeit pipes, and
accordingly seized 20 bundles of pipes, 20 bundles of pipe
cream and paints, by preparing the seizure mahazar. Since
P.W.1 not deposed as per the case of the prosecution, the
learned Sr.APP treated this witness as hostile and further
cross-examined. In the cross examination, P.W.1 has admitted
that on 19-9-2012 he lodged complaint to the police and after
lodging the complaint between 4-20 to 5-30 p.m., the police
seized 20 bundles of PVC pipes and screen prints by preparing
the seizure mahazar. P.W.1 though cross-examined by the
learned counsel for the accused but nothing worth elicited
from him to doubt his testimony in the matter of lodging of
complaint by him, preparing of seizure mahazar and seizure of
pipes and other materials by the police.
9. The testimony of P.W.2 Puneeth the son of P.W.1 who
is the seizure mahazar witness indicates that on 19-9-2012,
his father has lodged complaint to the Chickpet police station
about selling and possession of 25 bundles of counterfeit pipes
in the brand name of Universal at Heera Marketing shop
belonged to accused. Accordingly, the police visited said shop
and seized pipes only. Since P.W.2 not deposed as per the
case of the prosecution, the learned Sr.APP., treated this
witness as hostile and further cross examined. In the cross
5 C.C.No.22268/2012
examination of learned Sr.APP, P.W.2 admitted seizer of screen
printing in the brand name of Universal(S), preparing of
mahazar in between 4-20 to 5-00 p.m., and presence of
himself, his father complainant, C.W.2 and 4 at the time of
mahazar. It is to be, noted here that the testimony of P.W.2
not tested by way of cross-examination.
10. As stated above, in spite of giving sufficient
opportunities, the prosecution has not examined other
witnesses on record. In a case like this, the offences has to be
proved in a circumstantial evidence by way of proving the
seizure Mahazar of seized counterfeit pipes, screen-printings
by preparing seizure mahazar. Further, the prosecution has
to prove that the complainant had obtained copyright and
Trademark certificates over the brand name universal(s) and
trademark. Further, the prosecution has to prove that the
seized pipes are counterfeit in the brand name of universal(s)
and the accused is the owner of Heera marketing shop and
godown where seizure conducted.
11. As stated above, the prosecution to prove seizure
mahazar has examined two witnesses. In view of my above
discussion P.Ws.1 and 2 spoken regarding seizer of 20
bundles of pipes, screen-printing by preparing seizure mahzar,
but nothing worth is elicited from them to doubt their
testimony. Moreover, the testimony of P.W.2 not tested by way
6 C.C.No.22268/2012
of cross-examination. Therefore, from the testimony of P.W.1
and 2, it is very much clear that on 19-9-2012 the sub
inspector of Chickpet Police Station visited Heera Marketing
shop and seized 20 bundles of pipes and screen-printing by
preparing seizure mahazar.
12. In my opinion, mere proving of seizure mahazar is
not sufficient to connect the accused Nos.1 and 2 for the
offences alleged against them. In order to connect the accused
persons for the offences alleged, the prosecution has also to
prove that the complainant Company had copyright and
Trademark certificates over the brand name Universal(S) and
trademark, seized pipes are counterfeit and accused is the
owner of Heera Marketing shop.
13. It appears the investigating officer not collected the
copyright certificate of the complainant Company over the
brand name universal(S), however, he collected Trademark
certificate as per Ex.P.3. Moreover, in spite of giving sufficient
opportunities, the prosecution has not examined the
investigating officer to speak regarding non-collection of
Copyright certificate of complainant over the said brand.
Therefore, the prosecution has failed to prove that the
complainant Company had copyright over the brand
Universal(s).
7 C.C.No.22268/2012
14. It appears in this case the investigating officer during
the course of investigation has not at all obtained any report
from expert to confirm that the seized pipes are counterfeit in
the brand name of Universal(S). Probably the investigation
officer believing the words of complainant concluded that the
seized pipes are counterfeit. In my opinion, filing of charge
sheet based upon the say of complainant that seized pipes and
other materials are counterfeit is not in accordance with law.
Admittedly, the complainant i.e., P.W.1 is the owner of the
industries, which company claiming copyright and trademark
over the brand Universal (S). When the complainant is the
owner of some brand, naturally he is interest in his company
and expected to give opinion favoring his company only.
Therefore, the investigation officer ought not to have believed
the words of complainant to conclude that the seized pipes are
counterfeit in the brand name of Universal(S). In my further
opinion in order to confirm the say of complainant, the
investigation officer ought to have obtained report from
independent expert. However, it appears the investigating
officer has not obtained independent expert opinion regarding
seized pipes and other materials. In my opinion, no acceptable
evidence placed before the court to prove that seized pipes and
other materials are counterfeit in the brand name of Universal
(S).
8 C.C.No.22268/2012
15. As stated above the investigation officer has charge
sheeted the accused under Trade and Merchandise Marks Act
1958. Ex.P.3 is the Trademarks certificate of Complainant
Company and issued the same under Trademarks Act 1999.
Admittedly, the investigation officer not charge sheeted the
accused under Trade Marks Act 1999 instead charge sheet
filed under Trade and Merchandise Act, 1958 that Act stands
repealed on 30-12-1999 itself. It appears the investigation
officer even though Trade and Merchandise Marks Act not in
force as on the date of offence i.e., as on 19-9-2012, charge
sheet filed under the said Act which act is abuse of process of
law. Therefore, prima facie, the charge sheet filed against
accused under Trade and Merchandise Marks Act, 1958 is not
in accordance with law. Assuming that some offence taken
place under Trade Mark Act, in view of section 115(4) of the
Trademarks Act, 1999 only the Deputy Superintendent of
police or equivalent rank of police officer only authorized to
investigate the offences under Trade Marks Act 1999 that too
on complaint before the court. In the instant case, the police
sub inspector has investigated the matter and filed the charge
sheet under Trade and Merchandise Marks Act, 1958 which is
against statue. Therefore, the prosecution has failed to make
out any offence under Trade and Merchandise Marks Act,
1958.
9 C.C.No.22268/2012
16. As stated above, the prosecution to prove guilt
against accused though examined two witnesses, the evidence
of said witnesses is insufficient to conclude that the
prosecution has proved its case beyond all reasonable doubt.
Accordingly, 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 offences under section 63, 65 of Copyright Act, 1957, section 29, 77, 78, 79, 81(2) of Trade and Merchandise Marks Act 1958 and Sec. 420 of IPC.
Consequently, acting under section 248(1) of Cr.P.C., accused has been acquitted for the above-referred offences.
His bail bond and surety bond stands cancelled.
M.Os.1 to 3 are being worthless shall be destroyed 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 18th day of December 2015) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE 10 C.C.No.22268/2012 LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1 Mahaveer P.W.2 Puneeth
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.3 Trademark certificate copy Ex.P.4 Company catalogue ExsP.5 and 6 photos
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION:
M.O.1 samples pipes M.O.2 Screen Printing M.O.3 Company pipes LIST OF WITNESSES EXAMINED, DOCUMENTS &
MATERIALS MARKED ON BEHALF OF THE DEFENCE:
NIL IX ADDL.C.M.M. Bangalore.