Delhi District Court
State vs . Vijay Etc. on 28 September, 2011
1
IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Vijay etc.
FIR No. 108/93
PS: Keshav Puram
U/s 63/64/65 Copyright Act
& 78/79 TMM Act & 420/468/471/120B IPC
Case ID No. 2404R0026301994
JUDGEMENT
A) Sl. No. of the case : 13/3
B) The date of commission : 04.06.1993
of offence
C) The name of the complainant : Sh. Arvind Tah
General Manager (A&R)
Super Cassettes Industries
Ltd.
A289, Okhla Industrial Area,
PhaseI, New Delhi
D) The name & address of accused : 1. Vijay
s/o Sh. Narain Singh
r/o C1/12A, Lawrence Road,
PS Keshav Puram, Delhi
2. Dalip Malik
s/o Sh. Som Dutt Malik
r/o 88 Shakti Vihar, Pitampura,
PS Saraswati Vihar, Delhi
E) Offence complained of : U/s 63/64/65 Copy Right Act, U/s
78/79 Trade Mark Act and U/s
FIR No. 108/93 Page no.1/22
2
420/468/471/120B IPC
F) The plea of accused : Pleaded not guilty
G) Final order : Acquitted
H) The date of such order : 28.09.2011
Date of Institution : 22.03.1994
Judgment reserved on : 28.09.2011
Judgment announced on: 28.09.2011
THE BRIEF REASONS FOR THE JUDGEMENT:
The case of prosecution as per charge sheet is that on 04.6.93, the complainant namely Sh Arvind Tah gave written complaint dt. 4.6.93 in the office of Crime Branch to the effect that M/s Super Cassettes Industries Ltd is the copy right owner in respect of artistic work, literal, musical and dramatic works, etc. in respect of movies ' Ashiqui', ' Aayee Milan Ki Raat', Dil Hai Ke Manta Nahin' ,'Meera Ka Mohan', 'Naagmani',' Aashiyaan', 'Junoon', ' Bahaar Aane Tak', ' Maina', ' Sangeet', and ' Jeena Marna Tere Sang', etc. as mentioned in the said written complaint besides owner of trade marks such as ' TSeries',' SCI Logo', TSeries Logo', ' Super S Logo' and photograph of Mata Vaishno Devi in a circle, etc. vide registration no. 452033, 452036 in class 9 under the provisions of Trade & Merchandise Marks Act, 1958 and the Artistic Works are registered under the provisions of Copy Right Act. It was further mentioned in the said complaint that no person without written permission of said company, can reproduce and/or deal with the recorded musical and other works, trade marks, logo and artistic works, etc. but large FIR No. 108/93 Page no.2/22 3 number of persons in and around Delhi are involved in the acts of piracy and have been reproducing its musical and artistic works thereby infringing its copy right and trade marks. The said complaint was marked to SI Parveen Kumar of Crime Branch who alongwith Ct. Kanwal Singh, Ct Ram Kumar, complainant namely Sh Arvind Tah and other staff conducted raid at premises no. C4/38A, Keshav Puram on 4.6.93 where accused Vijay was found present alongwith large quantity of inlay cards. On search of said premises, large stock of infringed inlay cards of Super Cassettes Industries Ltd. as well as of other musical companies were found in the room. Those inlay cards were put in 66 gunny bags and were sealed by SI Pawan Kumar with the seal of SSS. On measurement at Ram Dharm Kanta, those inlay cards were found to be weighing about 1640 kg. On interrogation, accused Vijay Kumar disclosed that said premises belongs to accused Dalip and one another person namely Anup @ Arun @ Kala. He disclosed that said inlay cards were used for packing pirated audio cassettes which are recorded at separate place. Accordingly, FIR in respect of offence U/s 63/64 C.R Act read with section 78/79 of Trade Mark Act was got registered. Subsequently, raid was conducted at premises no. 20, Gali no. L2, Shastri Nagar, Delhi where pirated cassettes of different musical companies were seized besides the apparatus used for manufacturing of those duplicate cassettes on which accused Dalip Malik was also arrested in this case.
After completion of investigation, charge sheet U/s 63/64/65 Copy Right Act, U/s 78/79 Trade Mark Act and U/s 420/468/471/120B IPC was prepared against the accused persons. Complete copies of the charge sheet and documents were supplied to both the accused and after complying with the provisions of Section 207 Cr.P.C, arguments on charge were heard. Vide order dated 05.01.2001, charge was framed against both the FIR No. 108/93 Page no.3/22 4 accused for the offences under section 63/65 Copy Right Act and 78/79 of Trade Mark Act to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution has examined 12 witnesses i.e PW1 HC Duli Chand, PW2 Ct. Jacob Paul, PW3 Ct. Ram Kumar, PW4 Sh. Ved Prakash Chandna, PW5 Sh. Krishan Gopal, PW6 Inspector D.P.Joshi, PW7 Inspector Satyavir Singh, PW8 Smt. Monica Padhal, PW9 Sh. Mukesh Bhatt, PW10 Sh. Kirti Kumar, PW11 Sh. Ramu Sippi and PW12 Sh. Ashok Thakeria.
Thereafter, the statements of both the accused namely Vijay and Dalip were recorded under section 313 Cr.P.C in which the stand of the accused is of general denial. Accused Vijay and Dalip Malik stated that they are innocent and have been falsely implicated in the present case. Accused Dalip Malik further stated that he was running a legal unit of recording the Bhojpuri and religious songs. The complainant party approached him to sell their cassettes but he refused on which they threatened that they will falsely implicate him in case he refuses to sell their cassettes and ultimately, they falsely implicated him in the present case. Although both the accused opted to lead DE in this case but accused no. 1 Vijay has not examined any witness towards DE whereas accused Dalip Malik has examined only one witness i.e DW1 Sh Ramesh Azmani whose statement was recorded on 14.7.09.
DW1 Ramesh Ajmani deposed that he is doing the business of music industry since 1985 in regional and religious audio cassettes and now in CDs/VCDs/DVDs/MP3. He further deposed that he is having approximately 1000 titles in his copyright list for which he is preparing the recorded music both audio and visual. He deposed that Dalip Malik worked with them from the year 1989 to 2001 but even now if they require some urgent FIR No. 108/93 Page no.4/22 5 orders, they get the job work done from Mr. Dalip Malik. He also produced cassettes, masters to show that they are in the business of regional and religious music since 1986 onwards. He also produced certain inlay cards proved as Ex.PW1/A1 to Ex.PW1/A12. The said witness has been cross examined by Ld. APP for the state during which he deposed that he has not brought any document to show that he was having copy rights of any musical work. He denied the suggestion that inlay cards produced by him in the Court were fake and fabricated. He admitted that he did not lodge any complaint case against T Series as TSeries is a big company. He admitted that raid in this case was not conducted in his presence and he was not aware about other work of accused persons except the job work which they used to give to the accused.
I have heard the arguments of Ld. APP for state and Ld. Counsels on behalf of accused. I have also perused the record carefully.
PW1 namely HC Duli Chand is the formal witness i.e DO who has simply proved copy of FIR no. 108/93 as PW1/A and his endorsement Ex PW1/B on rukka. During his cross examination on behalf of both the accused, he denied the suggestion that SI Pawan Kumar alongwith case property came to PS and handed over him rukka on which he had registered the FIR. He further denied the suggestion that Ct. Kanwal Singh never handed over any rukka to him for registration of FIR and the entire proceedings took place in the PS. PW2 Ct. Jacob Paul is also a formal witness who deposed that on 05.6.93, specimen signatures of both the accused were obtained on sheets Ex PW2/A to PW2/D in his presence. During the cross examination, he deposed that he did not have any FIR No. 108/93 Page no.5/22 6 knowledge as to whether the signatures of accused were sent to any technical or hand writing expert or not. he also could not tell as to for what purpose the signatures of the accused were obtained.
PW6 is another formal witness who deposed that on 07.9.93, investigation of this case was marked to him but no material investigation was conducted by him in this case as investigation was transferred to SI Satbir Singh on 01.11.93. He has not been cross examined by both the accused despite grant of opportunity.
PW8 namely Smt. Monica Padhal deposed that she was the producer of film ' Pardeshi'. By virtue of agreement dt. 09.8.90, music rights of the said movie were assigned to M/s Super Cassettes Industries Ltd but original of said agreement was destroyed in the flood/rain on 26.7.05. Copy of said agreement has been exhibited as PW8/A. The said PW also exhibited copy of assignment deed dt. 10.7.90 in respect of video rights of the said movie in favour of Super Cassettes Industries Ltd. as PW8/B. PW9 Sh Mukesh Bhatt deposed that he was Executive Producer of film ' Aashiqui' and music rights of the said movie were assigned to super cassettes industries on 01.1.90 vide agreement original of which was lost and copy thereof has been exhibited as PW9/A. He also deposed that separate agreements were entered into with super cassettes industries in respect of other movies namely ' Dil Hai Ke Manta Nahi', ' Junoon' and 'Sadak' vide agreements exhibited PW9/B to PW9/D. During his cross examination, he stated that he did not obtain necessary registration from Registrar of Copy Rights. He denied the suggestion that such certificate was mandatory as per Section 52A of Copy Right Act.
PW10 Sh. Kirti Kumar deposed that he was producer/Director of film ' Radha Ka FIR No. 108/93 Page no.6/22 7 Sangam' and music rights in respect of said film were assigned to M/s. Super Cassettes Industries on 6.4.90 original of which had been destroyed due to heavy rain and photocopy thereof has been exhibited as PW10/A. Said witness has not been cross examined by the accused despite grant of opportunity.
PW11 Sh. Ramu Sippi deposed that he was attorney of the producer of M/s. Shiva Arts International and copy right in respect of audio cassette of movie ' Thanedar' and all the rights were given to TSeries company vide agreement dt. 12.5.88, copy of which has been exhibited as PW11/A. He has also not been cross examined by the accused despite grant of opportunity.
PW12 Sh Ashok Thakeria deposed that he was a partner in Maruti International which produced the movies namely ' Dil ' and 'Beta'. The copy rights in respect of said movies were given to Super Cassettes Industries vide original agreements dt. 06.10.89 and 18.11.89 copies of which have been proved as PW12/A and PW12/B respectively. During cross examination, he deposed that the agreement with Super Cassettes Industries in respect of copy right of said movies is perpetual and exclusive musical rights of said movies were assigned to Super Cassettes Industries Limited.
PW3 HC Ram Kumar( the then Ct.) deposed that on 04.06.93, he joined the investigation of this case alongwith Kanwal Singh and Arvind Tah of Super Cassettes Industries. At about 2.00 pm, he went to H.No. C4/38A, Lawrence Road belonging to accused Vijay Kumar. On checking, huge quantity of inlay cards of different companies were found lying on the floor. Sh Arvind Tah also verified different titles of Super Cassette Industries in respect of those inlay cards which were put in 66 gunny bags and were FIR No. 108/93 Page no.7/22 8 sealed with the seal of SSS. The said accused was arrested vide personal search memo Ex.PW3/A and his disclosure statement Ex.PW3/C was also recorded. He also proved disclosure statement of accused Dalip as PW3/D and the seizure memo as PW3/E. However, the said PW could not identify accused Vijay Kumar during trial.
During his cross examination, he could not tell as to whether site plan was prepared by IO or not and also as to whether site plan was prepared in his presence or not. He stated that he had gone to only one place where from accused Vijay Kumar was arrested. He had signed seizure memo regarding seizure of case property but when confronted with seizure memo of case property seized from house no. C4/38A, Lawrence Road, Delhi, he admitted that same did not bear his signatures. He also could not tell the time when arrest memo of accused Vijay was prepared or about the time when disclosure statement of said accused was recorded. He also could not tell DD entry number regarding their departure from office of Crime Branch to the house of accused Vijay. He admitted that house no. C4/38A mentioned supra was situated in residential locality. However, he denied the suggestion that he was not part of raiding party or that entire proceedings including seal of gunny bags took place in PS Keshav Puram itself.
PW4 Sh. Ved Prakash Chandna, Director Super Cassettes Industries Ltd. deposed that on 04.06.93, he had joined the investigation of this case and went to Keshav Puram at the premises of accused Vijay where huge quantity of inlay cards of T. Series were present which were put into gunny bags and were seized. However, seizure memo Ex PW3/E did not bear his signatures. During his cross examination, he deposed that inlay cards were not counted and their weight was ascertained after putting them into gunny bags. However, he could not tell the weight of those gunny bags. He testified that his statement was not FIR No. 108/93 Page no.8/22 9 recorded by police but the statement of Arvind Tah was recorded in his presence. He did not sign arrest memo or personal search memo of the accused and site plan was not prepared in his presence. He categorically stated that no case of piracy is pending against his company. He did not sign disclosure statement of accused Dalip as well as the seizure memo in respect of alleged recovery from the possession of said accused. He alongwith other members of raiding party remained together at the spot up to 4.40 P.M. The weight of inlay cards put in the gunny bags was taken after 7.30 P.M when he had left the spot. He further deposed that the writing work was not done in his presence but volunteered that the documents were signed by him. He deposed that the seizure memo regarding alleged recovery from accused Vijay was signed by him but admitted that seizure memo Ex PW4/DA(it is the seizure memo in respect of alleged recovery from accused Vijay) does not bear his signature. He denied the suggestion that no raid was conducted in his presence and no search took place in his presence.
PW5 Krishan Gopal deposed that on 04.06.93, he had joined the investigation alongwith Ved Chandna and Arvind Tah. Raid was conducted at premises no. C4/38A Keshav Puram, Delhi where one person namely Vijay Kumar was present and huge quantity of pirated inlay cards were recovered. Besides pirated inlay cards of T.Series, inlay cards of HMV and Tips also found. All the said inlay cards were put into 66 gunny bags which were weighed at Ram Dharmkanta and came out to be 1640 kg. All the bags were seized vide seizure memo Ex.PW4/DA. Thereafter, accused Vijay led the police officials to H.No. 20, Gali No.2 Shastri Nagar, Delhi from where they got recovered 449 blank audio cassettes and 515 pirated audio cassettes. One speaker and duplicate machines were also recovered in the presence of employees, accused Dalip, etc. He proved samples of FIR No. 108/93 Page no.9/22 10 pirated audio cassettes as Ex.P1 collectively, 66 gunny bags having pirated inlay cards as Ex.P2 collectively, 499 blank cassettes as Ex.P3 collectively, 515 pirated audio cassettes as Ex.P4 collectively, four duplicating machines as Ex.P5 collectively and one speaker as Ex.P6.
During his cross examination, he could not tell as to whether the statement of owner of Dharam Kanta was recorded or not. He also could not tell the name of owner of said Dharam Kanta. He deposed that Sh Ved Chandna(PW4) was not present at Dharam Kanta. He could not tell the amount/charges paid at Dharam Kanta and also could not tell the registration number of the tempo wherein those gunny bags were loaded for being taken to PS Keshav Puram. He admitted that he has no technical degree or diploma. He did not know as to whether any identification mark was put on those 50 gunny bags which were containing inlay cards of TSeries company or not. He had told specific reasons as to why and how those inlay cards were duplicate to the IO but on being confronted with his statement U/s 161 Cr.PC, he admitted that no such reason is mentioned in the said statement. Specific question was put to this witness during cross examination on behalf of accused Dalip as to how many loose inlay cards were recovered from house no. 20, Gali no. 2, Shastri Nagar, Delhi(belonging to accused Dalip) on which he deposed that inlay cards were recovered from the spot and have been duly mentioned in the seizure memo. He further reiterated that those recovered inlay cards from said premises must be in thousands. He did not take any document regarding ownership of the premises where from case property was recovered. He admitted that two/three criminal cases have been recently registered against complainant company. He also admitted that the place of recovery was congested area but he did not remember as to whether IO requested any FIR No. 108/93 Page no.10/22 11 public person from the locality to join the investigation or not. He further admitted that he was not having any diploma or degree to find out as to whether any inlay card is original or pirated one. He also could not tell as to whether the employees of accused Dalip who were allegedly present at the time of recovery, were sikh or non sikh. The said witness was also reexamined by Ld APP for the State with the permission of the Court during which he identified the signatures of Sh Arvind Tah on complaint dt. 04.6.93 Ex PW5/A. During cross examination, he stated that said complaint was got typed in his presence but he did not know as to who got the said complaint typed or the place where it was got typed. He volunteered that they had gone to PS Keshav Puram for making the complaint and complainant Arvind Tah had put his signatures on the said complaint in his presence in PS Keshav Puram.
PW7 Inspector Satyavir Singh deposed that on 01.11.93, investigation of the case was marked to him. He recorded the statements of some of the witnesses. He served the notice u/s 91 Cr.P.C upon Sh. Ved Chandna pursuant to which he had handed over the assignment deeds of movies namely Beta, Yajoon, Hangama etc to him through his salesman Mr. Rajesh Dutta. Mr. Arvind Tah, the General Manger of Super Cassettes had given him two original cassettes of 'Radha Ka Sangam' and 'Beta' and a resolution of the Super Cassettes dt. 15.04.91 in favour of Mr. Arvind Tah and copy of certificate of incorporation of Super Cassettes Industries Ltd. He also obtained the copies of agreements mark B, mark C and mark D, assignment deed mark E and other documents which were seized. He proved the original samples of the cassettes as Ex.P1 collectively.
During his cross examination, he admitted that he had not seen original assignment deeds and he also did not examine the producers of those films. He further admitted that FIR No. 108/93 Page no.11/22 12 no original sample was available when raid was conducted. He did not know the qualifications of complainant and could not tell as to whether complainant Arvind Tah was technical expert or not. He also admitted that no certificate regarding samples was produced from any expert and he did not sent those samples and recovered samples for expert opinion. He did not know that spectographic test is performed for identifying and ascertaining the fact as to whether the voice was from same sound track and has been copied as a version or not. He admitted that no such test in respect of those samples was got performed. He did not ascertain as to which part of infringed material was belonging to Super Cassettes.
Now, the question arises as to whether in view of the above evidence led by the prosecution, the prosecution can be said to have proved its case beyond reasonable doubt. We may remind ourselves here that in a criminal trial, it is the prosecution which has to prove its case beyond reasonable doubt and it is not the accused to prove its defence. The case of prosecution should stand on its own legs and the prosecution cannot take advantage of non explanation of the accused regarding motive for false implication. Ld. APP for the State argued that the accused have not come up with any reason as to why they have been falsely implicated but then on this ground, a conviction cannot be based if the prosecution is otherwise not able to prove its case beyond reasonable doubt.
In Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116 at 184: (AIR 1984 SC 1622) (at pages 165556) it was observed that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence and that it is not the law that where there is any infirmity or lacuna in the FIR No. 108/93 Page no.12/22 13 prosecution case, the same could be cured or supplied by a faIse defence or a plea which is not accepted by a Court.
PW5 namely Kishan Gopal in the cross examination stated that complainant Arvind Tah had signed complaint dt. 4.6.93 Ex PW5/A in PS Keshav Puram where they had gone for making the complaint. The said portion of his testimony is entirely contradictory to the case of prosecution as well as to the testimonies of other prosecution witnesses. The prosecution story is that written complaint Ex PW5/A was lodged in the office of Crime Branch and the matter was investigated by police officials of Crime Branch whereas local police of PS Keshav Puram never came to picture. PW4 namely Ved Parkash Chandna has also deposed during cross examination that he had gone to office of Crime Branch on 4.6.93 for lodging the complaint.
PW4 deposed during cross examination that gunny bags containing inlay cards were got weighed at Dharam Kanta after 7.30 P.M when he had left the spot. However, the perusal of rukka Ex PW1/B shows that it was prepared at 7.25 P.M on 4.6.93 and FIR had been registered at 7.35 P.M meaning thereby that FIR had already been registered by the time when gunny bags were got weighed in case the testimony of PW4 is to be believed. Thus, either the story of prosecution is incorrect or the presence of PW4 at the spot is doubtful. Moreover, there is an overwriting/cutting in rukka Ex.PW1/B at the place where the time of sending the rukka has been mentioned as the initial time of sending the rukka mentioned therein is 6.50 P.M. No explanation whatsoever has been furnished on behalf of the prosecution in this regard. Non examination of IO in the aforesaid background is, therefore, fatal to the case of prosecution.
PW3 HC Ram Kumar admitted that near the premises from where recovery was FIR No. 108/93 Page no.13/22 14 effected from the possession of accused Vijay, there were other houses also as it was a residential locality. Similarly, it has been admitted by PW5 namely Krishan Gopal that the place of recovery in respect of accused Dalip was a congested area and he did not remember as to whether IO had requested any public person from the locality to join the investigation or not. It is the admitted case of prosecution that no witness from the locality was joined in this raid. Section 100(4) of Cr.P.C specifically provides that before making a search, the officer about to make search shall call upon two or more independent and respective inhabitant of the locality in which, the place is to be searched, is situated or, of any other locality, if no such inhabitant of the locality to be searched is available or willing to be a witness to the search. This section also provides that officer making search may issue an order in writing to such persons. In the present case admittedly there is no respectable independent witness of the locality of search is joined by the investigating agency. No name or address of those persons, from the same locality, who were so requested but they refused to join, is even mentioned. Non joining of witnesses from same locality particularly in view of above discussion is again a serious lapse by the prosecution.
It is interesting to note that PW5 Kishan Gopal testified during cross examination that he had told specific reasons to the IO disclosing the grounds on the basis of which, inlay cards recovered from accused Vijay Kumar were found to be duplicate. However, it is an undisputed fact that no such reason whatsoever has been mentioned either in statement U/s 161 Cr.PC of said witness nor specified either in the charge sheet or even in the case diary. It is also not explained as to when Sh Ved Parkash Chandna(PW4) had handed over assignment deeds of certain movies to Inspector Satyavir Singh(PW7) FIR No. 108/93 Page no.14/22 15 then why those documents were not seized through separate seizure memo as no seizure memo in respect of said documents, has been proved on record. Not only this, Sh Rajesh Dutta through whom those documents had been handed over to PW7, has also not been cited as prosecution witness for the reasons best known to the investigating agency. Further more, most of the documents proved by PW8 to PW12 have been simply exhibited without being proved in accordance with law. It is well settled law that mere exhibiting of a document does not dispense with its proof and document is still required to be proved in accordance with law of evidence. The documents which have been exhibited during the testimonies of PW8 to PW10 are merely photocopies and originals thereof have never seen the light of the day. In the absence of originals of those documents, being produced before the Court, their photocopies cannot be said to have been proved in accordance with law. For this reason, said documents cannot be read into evidence.
It has come on record during cross examination of PW5 that he did not have any diploma or degree to find out as to whether any inlay card is original or pirated one. It is an admitted case of the prosecution that inlay cards allegedly recovered from accused Vijay and audio cassettes allegedly recovered from accused Dalip, were never sent to any FSL for obtaining expert opinion that they were pirated one. In this regard, PW7 Inspector Satyavir Singh has admitted that he did not send the samples and alleged recovered samples for expert opinion. IO SI Pawan Kumar who could have thrown some light on this aspect, has not been examined during trial due to which, Court is of the view that it has not been proved beyond doubt that those inlay cards and audio cassettes were pirated or infringed material within the meaning of Section 2(m) of Copy Right Act. FIR No. 108/93 Page no.15/22 16 Likewise, there is no iota of evidence available on record which may conclusively prove that machines Ex P5 and speaker Ex P6 were 'duplicating equipment' within the meaning of Section 2(hh) of the said Act.
It is an admitted case of the prosecution that none of the cassettes was played either at the place of recovery or at the police headquarter to check its contents. SI Pawan Kumar as well as complainant namely Sh Arvind Tah, who were also present in the raid and were vital to the case of prosecution, have not been examined in this case.
The Court finds considerable force in the submission made on behalf of accused that the presence of PW5 at the spot seems to be doubtful. He even could not tell the name of police official who had received the complaint and deposed that case property was weighed only once despite the fact that recovery was effected two times from two different places at two different points of time and two separate seizure memos have been prepared in this regard. This is more so when PW5 could not give any satisfactory reply/answer to most of the questions put to him during cross examination and he avoided to give any specific reply by claiming that he did not remember about those facts. Seizure memo Ex PW4/DA also does not bear his signature. Had PW5 been present at the spot at the time of alleged recovery then there was no reason as to why he was not made an attesting witness on the said seizure memo. Moreover, the statement of PW5 that inlay cards in thousands of quantity were recovered from house no. 20, Gali no. 2, Shastri Nagar clearly shows that he is a planted witness as it is nowhere the case of prosecution that any inlay card was recovered from the said premises. Rather the case of prosecution is that audio cassettes, duplicating machines and speaker alone were recovered from the said premises. It has been admitted by FIR No. 108/93 Page no.16/22 17 PW5 that he was an employee of Super Cassettes Industries and therefore, PW5 seems to be an interesting witness due to which reason, not much reliance can be placed by the Court.
The presence of PW4 namely Sh Ved Parkash Chandna at the spot also appears to be doubtful for the simple reason that he could not tell either the address of the premises where from alleged recovery was effected nor he could give any description of said place. He further admitted during his cross examination that he had left the spot at 7.30 P.M whereas the prosecution story is that FIR was got registered only at about 7.35 P.M and the said witness remained present during investigation after registration of FIR during which his statement as well as the statements of other witnesses were recorded. However, PW4 stated during cross examination that police did not record his statement at all. His testimony to the extent whereby he deposed that no case of piracy was pending against his company, also stood contradicted by the testimony of PW5 wherein he admitted that 23 criminal cases had been registered against the complainant company. PW4 has admitted during cross examination that he did not go to the place where from recovery was allegedly effected from the possession of accused Dalip. Again, seizure memos Ex PW3/E and PW4/DA do not bear signature of PW4. The Court fails to make out as to when the aforesaid two officials of complainant company were present at the time of alleged recovery then why they were not made attesting witnesses to the seizure memos. No explanation whatsoever has been furnished in this regard which creates sufficient doubt regarding the presence of those officials at the time of alleged recovery.
Moreover, PW4 nowhere deposed during his entire chief examination that he had FIR No. 108/93 Page no.17/22 18 also accompanied the raiding party to the second place where from recovery has been allegedly effected from accused Dalip. Rather, he has categorically stated during cross examination that he had gone only to one place where from accused Vijay Kumar was arrested. As already stated above, none of the documents prepared in respect of alleged recovery from accused Vijay Kumar, bears the signature of said witness. PW5 Kishan Gopal has specifically deposed during cross examination that PW4 was not present at the time when those inlay cards were got weighed at Dharam Kanta. The Court fails to understand that in case PW4 was present at the spot then what was the reason for not recording his statement U/s 161 Cr.PC.
As per prosecution story, specimen signature of both the accused were obtained during investigation. PW2 has also proved sheets containing specimen signature of said accused as PW2/A to PW2/D but it has nowhere been explained as to why and for what purpose, those specimen signature were obtained as it is nowhere the case of prosecution that those signatures were sent to any authority or that there was any dispute regarding signatures of accused appearing on some documents.
No departure entry or arrival entry by the police to the place of recovery has been proved which could have lend some credence to the case of prosecution particularly when the investigating agency claims that the raiding party on the date of recovery specifically departed to the premises of accused from the Crime Branch office. In such circumstances, DD entry register which records the departure and arrival of police officials on duty ought to have been proved, which is not proved. There is no mention about the departure entry even in the rukka prepared by IO SI Pawan Kr.
Even otherwise strictly speaking, the offence of infringement not made out in the FIR No. 108/93 Page no.18/22 19 present case for the simple reason that the necessary ingredients of offence of infringement are not fulfilled in the present case. It is nobody's case that the audio cassettes which were allegedly recovered were displayed for sale/hire in the shop of the accused nor it is the case of prosecution that the accused offered them for sale or hire to anybody.
Infringement is defined in Section 51 of Copyright Act and it states that Copyright in a work shall be deemed to be infringed when any person, without a licence granted by the owner of the copyright or, by Registrar of Copyrights does anything, the exclusive rights to do which is by the Act conferred upon the owner of the copyright of the said Act. It further provides that copyright shall be deemed to be infringed if any person makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire any infringing copies of the work. It also provides that when any person distributes for the purposes of trade any infringing copies, it shall be deemed infringement. Admittedly, Clause (a) Section 51 and sub clause (iii) and (iv) of Clause (b) of section 51 are not applicable in this case.
What are the exclusive rights of a copyright holder, is defined in Section 14 (1)
(d), in the case of cinematograph film, and it says that copyright in a cinematograph film means, exclusive rights to make copy of film including the photographs of an image; to sell or give on hire or offer for sale or hire any copy of the film; and to communicate the film to the public. Similarly, section 14 (1) (e) provides the exclusive rights given to a copyright holder, in case of sound recording.
FIR No. 108/93 Page no.19/22 20
Therefore, in order to prove infringement it was incumbent on the prosecution to show that accused did anything, the exclusive rights to which vested with the copyright holder, or, the prosecution ought to have proved that accused sold or gave on hire or by way of trade displayed or offered for sale or hire the infringing copies. There is no evidence on record to show that Copy Right existed in favour of complainant in respect of inlay cards or audio cassettes allegedly recovered from the possession of accused.
Section 63 of the Copyright Act, 1957 makes punishable an offence of infringement when a person knowingly infringes the copyright in a work. The word 'knowing infringes' is of great significance, which requires active mens rea present.
In the case of 1994 CRI. L. J. 2469 in the case of A. K. Mukherjee v. State Hon'ble DELHI HIGH COURT held as follows;
" 8. A bare perusal of the provision would go to show that emphasis is on the words "knowingly infringes.... the Copyrights in a work." These words clearly postulate a knowledge on the part of the accused that he was infringing the Copyright in a work. Mere possibility of his having known it would not suffice. There has to be clear and conclusive proof of the requisite knowledge. Even the existence of reasonable means of knowing would not be enough. In short thus the use of the work "knowingly" in the provision results in requiring "mens rea in the full sense" [See Prof. J.C. Smity, "The Guilty Mind in the Criminal Law" 1960 Law Quarterly Review Vo. 76,p. 79]. This in short being the legal requirement under Section 63 of the Copyright Board, evidence shall have to be led to bring home the required guilty knowledge."
Lastly, the provisions of section 64 of the Copyright Act, 1957 have not been FIR No. 108/93 Page no.20/22 21 complied with. Section 64 of the Copyright Act, 1957 provides that any police official, if he is satisfied that an offence u/s.63 of Copyright Act in any work has been, is being or is likely to be committed, seize without want of such copies of infringed work and plates used in making the infringed copies of the work wherever found. It further provides that all such copies and plates so seized shall, as soon as possible, be produced before a Magistrate.
In the present matter, the case property was not produced before a Magistrate in compliance of section 64 of the Copyright Act, 1957, and which again creates suspicion on the alleged recovery.
Law is well settled that suspicion however strong cannot take place of proof. However strong suspicion may be it cannot take the place of proof. It cannot be the basis for conviction of an accused. ( so held in Parkash Chander vs. State 1994 JCC Delhi:
State (N. C. T. of Delhi) v. Navjot Sandhu AIR 2005 SUPREME COURT 3820 : R. Sai Bharathi v. J. Jayalalitha AIR 2004 SUPREME COURT 692).
In view of the above discussion, the prosecution has failed to prove its case beyond reasonable doubt and benefit of the same ought to go to the accused. Accordingly, both the accused are acquitted of the charges. Their personal bonds, if any stand cancelled. Original documents, if any be returned after cancellation of endorsement if any. File be consigned to Record Room.
Announced in open Court (VIDYA PRAKASH)
Dated: 28.09.2011 Addl. Chief Metropolitan Magistrate1
Rohini, Delhi
FIR No. 108/93 Page no.21/22