Bangalore District Court
P.W.2-Janardhan.B.L Is The Police ... vs To The Police Station And Registered ... on 8 December, 2015
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 8th 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.C.C.No 14877/2014
2.Date of Offence 9-10-2013
3.Complainant State by Srirampura Police Station
4.Accused S. Imthiyaz
S/o. Mohammed Siraz, Aged 33
years, No.87, Ramavilla, 4th Cross,
3rd Main Road, Ramachandrapura,
Sriramapura, Bangalore-21.
5. Offences complained U/s.51(1), (b) and 63 (a) of Copyright
of Act, 1957 and section 420 of IPC.
6. Plea Accused pleaded not guilty.
7. Final Order Accused is acquitted
8. Date of Order 8-12-2015
REASONS
The Sub Inspector of Police, Srirampura Police Station,
Bangalore has filed this charge sheet against the accused for
2 C.C.No.14877/2014.
the offences punishable under section 51(1), (b) and 63 (a) of
Copyright Act, 1957 and section 420 of IPC.
2. The brief facts of the prosecution case are that on
9-10-2013 at 5-40 p.m., in Sancos Shop situated at 3rd main,
4th cross, Balaji Complex within the limits of Srirampura Police
Station the accused being the owner of said shop was found in
possession and selling of counterfeit/duplicate shirts in the
brand name of US Polo, jeans pants in the 5 mixed brands, 72
jeans pants in rejected mixed brands, leather pouches in the
brand name of Super dry and yaz, 934, jeans pants in the
brand name of Guess jeans, 495 jeans pants in the brand
name of US Polo, 236 jeans pants in the brand name of C.K,
136 jeans pants in the brand name of Wrangler, 30 jeans
pants in the brand name of Pepe, 320 jeans pants in the
brand name of Tommy Hilfiger, 125 jeans pants in the brand
name of Lee and 200 purses in the brand name of Tommy
Hilfiger without there being any authorisation or written
consent from the copyright holder and thereby infringed the
copyright of the said companies and further the accused was
selling the same to the general public as if the said cloths are
supplied by copyright holder company and thereby cheated
the copyright holder company as well as general public and
committed aforesaid offences.
3 C.C.No.14877/2014.
3. The accused is on bail. On receipt of chargesheet,
this court took cognizance of the offences and furnished the
copies of the prosecution papers to the accused. After hearing
on charges, this court framed the charge for the offences
punishable under section 63 of Copyright Act, 1957 and
section 420 of IPC for which the accused person pleaded not
guilty, and claims to try.
4. The prosecution in order to prove its case got
examined three witnesses as P.Ws.1 to 3 and got marked
seven documents at Exs.P.1 to P.7. Since, C.Ws.2, 3, 5 to 11,
13 and 14 did not turn up before this court, 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. The prosecution to prove the guilt against accused has
examined three witnesses. P.W.1-M.V.Suresh Babu is the
complainant. P.W.2-Janardhan.B.L is the police inspector who
conducted the raid. P.W.3-Shivakumar is the head constable
who said to have participated in the raid. Inspite of giving
4 C.C.No.14877/2014.
sufficient opportunities the prosecution has not examined
other witnesses on record.
8. I have carefully perused the evidence on record and
the documents produced in this case.
9. The testimony of P.W.1 indicating that upon the
credible information of selling of counterfeit cloths in the
brand name of Super Dry, he being the authorized
representative of Super Dry Company working in Anvesh IPR
services visited Yaz Garments situated at 3rd main road,
Srirampura and found leather pouches in the brand name of
Super Dry. Accordingly, he lodged complaint to the
Srirampura Police Station as per Ex.P.1. After lodging of the
complaint the Srirampura police inspector along with his staff
and panchas visited said Yaz Garments and found one person.
The said police inspector P.W.2 herein informed the person
about his visit and asked him to verify the said garments
about counterfeit leather pouches. Accordingly, he verified and
found 3000 spurious leather pouches in the brand name of
Super Dry brand. He also found readymade garments in
different brand names. P.W.2 has asked the said person
about any license to sell, since the said person has pleaded
no, P.W.2 has seized 954 shirts in the brand name of US Polo,
72 pants in different brand names. P.W.2 asked the said
person about his godown and came to know that his godown
is at 4th block, Rajajinagar. Accordingly, he, P.W.2 and others
5 C.C.No.14877/2014.
along with accused visited said godown and found 324 pants
in the brand name of C.K, 320 pants in the brand name of
Tommy Hilfiger, 120 purse in the brand name of Hilfiger, 1800
jeans pants in different brand names. P.W.2 has seized the
same by preparing the seizure mahazar as per Ex.P.2. He
opinioned that since there is differences in pants and since the
original branded cloths are only available in showroom and
there is differences in stitching, accordingly he opinioned that
the seized cloths are counterfeit. P.W.1 has identified the
seized cloths and leather pouches as per M.O.1 to 13.
10. The testimony of P.W.1 the police inspector who
conducted the raid indicating that on 9-10-2013 he received
complaint from P.W.1 about selling of counterfeit leather
pouches, jeans pants and shirts in different brand names and
accordingly he registered the case. Thereafter, he called
C.Ws.2 and 3 as panchas and thereafter he, C.Ws.6 to 14
visited Balaji complex and found one person selling the same
by name Imthiyaz. He asked the said Imthiyaz to produce the
pants and shirts and accordingly he produced the same. P.W.1
has identified them as counterfeit. Thereafter, in between 6 to
8-00 p.m., he seized 5 mixed jeans pants, 930 US Polo shirts,
72 rejected mixed jeans pants, 3000 Super dry leather
pouches, 100 Yaz leather pouches by preparing the seizure
mahazar. On further enquiry of said Imthiyaz, he came to
know that he had a godown at Rajajinagar. Accordingly, he
6 C.C.No.14877/2014.
took the accused along with panchas and others to the said
godown situated at No.23A, 4th block, 7th main road,
Rajajinagar. He verified the godown and found 934 guess
jeans pants, 495 US Polo jeans pants, 336 C.K jeans pants,
136 Wrangler jeans pants, 30 Pepe jeans pants, 320 Hilfiger
jeans pants, 125 Lee jeans pants, 200 Tommy Hilfiger purse
and seized the same by preparing the seizure mahazar.
Thereafter, he brought the seized cloths, leather pouches and
accused to the police station and registered sumoto case. He
arrested the accused and recorded his voluntary statement,
also recorded the statements of witnesses on 21-10-2013,
thereafter he obtained report from complainant regarding
seized jeans pants and shirts and after completion of
investigation filed charge sheet against accused.
11. The testimony of P.W.3-Shivakumar the head
constable indicating that on 9-10-2013 when he was in station
duty, P.W.2 took him, C.Ws.6, 11, 13 and 14 in respect of
complaint of C.W.4 at Yaz shop situated at R.C.Pura, 3rd main,
4th cross. They found one person by name Imthiyaz in the
said shop. C.W.4 has identified leather pouches in the brand
name of super dry, shirts in the brand name of US Polo, jeans
pants in mixed brands, rejected jeans pants and leather
pouches. Accordingly, P.W.2 has seized the same. On further
enquiry, the said person has stated that he had godown in
Rajajinagar. Accordingly, P.W.2 took the said person, his
7 C.C.No.14877/2014.
staff, complainant and panchas to the said godown and found
200 Tommy Hilfiger purse, shirts and pants. P.W.2 has seized
the same by preparing the seizure mahazar.
12. As stated above, inspite of giving sufficient
opportunities, the prosecution has not examined other
witnesses 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 leather pouches, jeans pants and shirts by
preparing the seizure mahazar. Further, the prosecution has
to prove that the seized jeans pants, shirts and leather
pouches are counterfeit in the different brand names over
which EIPR group of companies had copyright. Further, the
prosecution has to prove that the accused is the owner of Yaz
shop.
13. As stated above, the prosecution to prove the seizure
mahazar has examined three witnesses. Ex.P.1 is the seizure
mahazar. P.Ws.1 to 3 have deposed in respect of seizer of
leather pouches, jeans pant, and shirts in different brand
names. Though P.Ws.1 to 3 were subjected to cross
examination but nothing worth is elicited from them in the
matter of seizer of leather pouches, jeans pants and shirts in
different brand names. It appears the prosecution has not
examined independent seizure mahazar witnesses. Moreover,
P.W.3 not signed the seizure mahazar. Admittedly, P.W.1 is
the signatory to the seizure mahazar and P.W.2 is the
8 C.C.No.14877/2014.
Investigating Officer who conducted the seizer. In my opinion,
even though the prosecution has not examined the
independent seizure mahazar witnesses and P.W.3 not signed
the mahazar, I have no reason to disbelieve the testimony of
P.Ws.1 and 2 because nothing doubtful circumstances and
animosity elicited to doubt their testimony in the matter of
seizure mahazar. Therefore, I am of the considered opinion
that the prosecution has proved the seizure mahazar of cloths
and pouches beyond all reasonable doubt.
14. It appears apart from proving the seizure mahazar
the prosecution has also to prove that the seized T-shirts,
jeans pants, leather pouches are counterfeit in the brand
name of super dry, guess jeans, US Polo, CK jeans, Wrangler
jeans, Pepe jeans, Tommy Hilfiger jeans and Lee jeans. It
appears during the course of investigation the Investigating
Officer has obtained report as per Exs.P.3, 4 and 6 the said
reports are given by P.W.1-Suresh Babu who is the
complainant. Prima facie, the report at Exs.P.3, 4 and 6
cannot be, relied upon for the reason that the person who
identifies some products as fake cannot be, called to give
opinion regarding said products. If any person identifies any
products as counterfeit and if it is in question before the court
of law, it has to be, proved by way of obtaining independent
expert. In the instant case, P.W.1 is the interested witness
9 C.C.No.14877/2014.
who is always interest in favour of company and therefore
naturally, he expects to give opinion favoring his company. In
my opinion, investigating officer P.W.2 ought to have obtained
independent report from the independent lab or government-
recognized lab by sending counterfeit cloths along with
original cloths of the copyright holder company. In the instant
case, the Investigating Officer has not taken any steps to
collect the original cloths and pouches from the complainant
or from the copyright Holder Company. On the other hand,
may be in order avoid some risk the Investigating Officer has
obtained report form the complainant who is interested
witness in favour of copyright holder company. Apart from
this PW1 in his cross-examination has stated that he is not
authorised to represent Guess jeans, US Polo, CK jeans,
Wrangler jeans, Pepe jeans, Lee jeans, Tommy Hilfiger jeans.
Therefore, PW1 is not competent person to give opinion
regarding the counterfeit cloths are above named brands.
However, it appears PW1 has stated that he is authoursed
person to identify super dry company. It appears, during the
course of investigation the Investigating Officer has seized 300
pouches in the brand name of super dry. Therefore, if at all
P.W.1 can opinion regarding the leather pouch but not T-
shirts and jeans pants of different companies. It appears, the
Investigating Officer having knowledge that P.W.1 is not
authorised person to identify or give opinion regarding other
products, has obtained report from wrong person and
10 C.C.No.14877/2014.
negligently filed the charge sheet before the court, which act of
the Investigating Officer is not acceptable one. In the further
cross-examination, P.W.1 has admitted that he has not
mentioned the examination of the leather pouches
scientifically. If we carefully perused Exs.P.3, 4 and 6 we
cannot find the procedure adopted by P.W.1 to identify the
seized cloths and leather pouches as counterfeit. Totally, the
report of P.W.1 is un-expectable and it cannot be, relied upon.
Therefore, I am of the considered opinion that the prosecution
has failed to prove that the seized cloths and leather pouches
are counterfeit in different brand names.
15. It appears during the course of investigation, the
Investigating Officer has not collected copyright certificate of
any company to prove that any company had copyright over
Us Polo, Tommy Hilfiger, super dry, Guess jeans, Ck jeans,
wrangler jeans, Pepe jeans and Lee jeans. Therefore, the
prosecution has filed to prove that some company had
copyright over above named brands.
16. It appears the Investigating Officer has collected
xerox copy of lease agreement said to be, taken place between
accused and one Priya Kishor. However, the Investigating
Officer has not examined the lessor/owner of the shop where
the accused running the garment name of yaz and godown at
Rajajinagar. Moreover, the document produced before the
court not marked in evidence. Therefore, the prosecution has
11 C.C.No.14877/2014.
failed to prove that the accused is the owner of the Yaz exports
garments. Hence, looking from any angle, I am of the
considered opinion that the evidence on record is in sufficient
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 offences punishable U/s. 63 of Copyright Act and section 420 of IPC.
Consequently, acting under section 248(1) of Cr.P.C., accused person has been acquitted for the above-referred offences.
His bail bond and surety bond stands cancelled.
The property M.Os.1 to 13 confiscated to government after appeal period is over. Office to put the auction of seized shirts, jeans pants and leather pouches after removing the labels.
(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 8th day of December 2015) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
12 C.C.No.14877/2014.ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1 M.V.Sureshbabu P.W.2 Janardhan.B.L P.W.3 Shivakumar
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION: NIL Ex.P.1 Complaint Ex.P.1(a) Signature Ex.P.1(b) Signature Ex.P.2 Mahazar Ex.P.2(a) Signature Ex.P.2(b) Signature Exs.P.3 and 4 Report Exs.P.3 and 4 Signature Ex.P.5 Complaint Ex.P.5(a) Signature Ex.P.6 Report Ex.P.7 FIR Ex.P.7(a) Signature LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION:
M.O.1 U.S. Polo brand two shirts M.O.2 Super dry brand fifty leather patches M.O.3 YAZ brand 17 leather patches M.O.4 Livis stars brand four jeans pants M.O.5 Tommy Hilfiger brand two jeans pants M.O.6 Lee brand two jeans pants M.O.7 calvin Cleen brand two jeans pants M.O.8 U.S.Polo brand two jeans pants M.O.9 Guess brand two jeans pants M.O.10 Tommy Hilfiger brand two purses 13 C.C.No.14877/2014. M.O.11 Pepe jeans brand two pants M.O.12 Wrangler brand two jeans pants M.O.13 Mixed brand four pants.
LIST OF WITNESSES EXAMINED, DOCUMENTS AND MATERIALS MARKED ON BEHALF OF THE DEFENCE: NIL IX ADDL.C.M.M. Bangalore.14 C.C.No.14877/2014.
ORDER This court did not found guilt of accused for the offences punishable U/s. 63 of Copyright Act and section 420 of IPC.
Consequently, acting under section 248(1) of Cr.P.C., accused person has been acquitted for the above-referred offences.
His bail bond and surety bond stands cancelled.
The property M.Os.1 to 13 confiscated to government after appeal period is over. Office to put the auction of seized shirts, jeans pants and leather pouches after removing the labels.
IX ADDL.C.M.M. Bangalore.