Bangalore District Court
For The Commission Of The Offence And The vs Is The Owner Of Supra Digital Company. ... on 23 July, 2015
IN THE COURT OF THE IX ADDL.CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE.
Dated this the 23rd day of July 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 5269/2013
2.Date of Offence 7-11-2012
3.Complainant State by Subramanyapura Police
Station
4.Accused Deepakmagar, S/o.K.P.R.Magar,
aged 46 years, No.10/B, 15th Main
Road, 19th Cross,
Padmanabhanagara, Bangalore.
5. Offences complained U/s. 63, 63(b), 64 and 65 of
of Copyright Act, 1957 and Sec. 420 of
IPC
6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted
8.Date of Order 23/07/15
REASONS
The Sub Inspector of Police, Subramanyapura Police
Station, Bangalore has filed this charge sheet against the
2 C.C.No.5269/2013
accused for the offences punishable U/s.63, 63(b), 64 and 65
of Copyright Act, 1957 and Sec. 420 of IPC.
2. The brief facts of the prosecution case are that on
7-11-2012 at 3-00 p.m., in Supra Digital Company, situated at
No.7/2, behind Bharath Petroleum Bunk, on Utharahalli main
road at Balajinagar within the limits of Subramanyapura
Police station, the accused being the owner of said company
knowingly using software over which M/s Adobe System
incorporate USA and Adobe Systems India Ltd., had copyright
which software being used to prepare flex, advertisement,
banner and photos without obtaining any license or
permission from the said copyright holder companies and was
in possession of said software in his computer system and by
utilizing the same prepared the flex, advertisement, banner
and photos and were selling the same as if the said flex,
advertisement, banner and photos prepared are prepared by
using the software with the permission of the copyright holder
companies and thereby cheated copyright holder companies as
well as the 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 the prosecution papers to the accused. After hearing
on charges, this court framed the charge for the offences
punishable U/s. 63, 63(b), 64 and 65 of Copyright Act, 1957
3 C.C.No.5269/2013
and Sec. 420 of IPC, for which the accused person pleaded not
guilty and claimed to be tried.
4. The prosecution in order to prove its case got
examined six witnesses as P.Ws.1 to 6 and got marked 18
documents at Exs.P.1 to Ex.P18 and also marked one material
object as per M.O.1. Since C.Ws.1 to 7 and 11 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. The prosecution to prove guilt against accused has
examined six witnesses. P.W.1-Annaiah @ Honnaiah is the
worker, P.W.2 Tulasi is the assistant, P.W.3 Jabir Mahaboob
Sharif is the printing worker, P.W.4 Thippeswamy is the
assistant, P.W.5 Mallikarjun is the assistant in Supra Digital
Company, said to be eyewitnesses for storing and using of
software over which M/s. Adobe System in Corporate USA and
Adobe System Pvt., India Ltd., Companies had copyright and
4 C.C.No.5269/2013
seizure mahazar witnesses. P.W.4 Shivanna is the
investigation officer. As stated above, in spite of giving
sufficient opportunities, the prosecution has not examined
other witnesses on record.
8. The testimony of P.W.4 Shivanna the PSI indicating
that on 7-11-2012 at 10-00 p.m., he received complaint from
C.N.Janardhan the police inspector of CCB F and M and
registered the case. He also received the seizure Mahazar,
seized materials and reported the seized materials to the court
under P.F.No.277/2012. He also received the accused,
enquired him and recorded his voluntary statement.
Thereafter, he recorded the statements of C.Ws.2 to 7 the
eyewitnesses. Further, he received documents from C.W.4 the
original complainant pertaining to this case. On 8-11-2012,
he visited the company of accused and recorded the statement
of C.Ws.8 to 13. On the same day, he sent the accused to the
judicial custody. After completion of other formalities of
investigation, he filed charge sheet against accused. As stated
above, in spite of giving sufficient opportunities the
prosecution has not examined the police inspector who
conducted the raid and one Mr.Rajesh Mishra the actual
complainant for the commission of the offence and the
independent seizure Mahazar witnesses. As stated above,
C.Ws.1 to 5 are the workers in Supra Digital Company in
which the accused is the owner. As per the case of the
5 C.C.No.5269/2013
prosecution, P.Ws.1 to 5 had knowledge of using of software
belonged to M/S Adobe System Incorporated USA and Adobe
Systems India Private Limited without obtaining any
permission or written consent from the said Copyright Holder
Company by the accused. But they have totally turned
hostile. The learned Sr.APP., treated these five witnesses as
hostile and further cross examined them, but nothing worth is
elicited from them.
9. In a case like this, the offences have to be proved in a
circumstantial evidence by way of proving the seizure Mahazar
of seized CPU, which said to have contained the software of
above said Copyright holder companies beyond all reasonable
doubt. It appears in this case though the prosecution has
examined five independent seizure Mahazar witnesses, but
none has supported the case of the prosecution. It appears
P.Ws.1 to 5 are workers in the accused company where the
offence taken place. Since they are workers of accused, in
order to support him have not deposed in favour of the
prosecution. Moreover, the prosecution to prove seizure
mahazar has not examined other witnesses to the seizure
Mahazar i.e., the inspector who conducted the seizer and
independent seizure Mahazar witnesses. Therefore, the
prosecution has failed to prove the seizure Mahazar of CPU
beyond all reasonable doubt.
6 C.C.No.5269/2013
10. In my opinion, apart from proving the seizure
Mahazar the prosecution has also to prove that the seized CPU
contains the software of M/s Adobe System Incorporated USA
and Adobe Systems India Private Limited. It appears, P.W.6
the Investigating Officer has not obtained any expert opinion
to know the contents of seized CPU more particularly to
confirm whether the said CPU contains the software of above
said copyright holder companies. In my opinion, mere saying
by the actual complainant i.e., C.W.4 herein, the police officer
who conducted the seizer i.e., C.W.1 herein and the
independent seizure mahazar witnesses that seized CPU
contain software of copyright holder companies, it cannot be
said that the accused by storing the software of above named
companies in his CPU was using the same. In my opinion, in
order to confirm whether the seized CPU contains software of
above said companies and said software used without the
permission or license from the copyright holder company the
investigation officer ought to have obtained the expert opinion.
Unfortunately, the Investigating Officer has not obtained any
report from the computer expert. Therefore, the prosecution
has failed to prove that the seized CPU contains the software
of above referred copyright holder companies.
11. Further, the prosecution has not examined the
original complainant and has not been marked any documents
to show that M/s Adobe System Incorporated USA and Adobe
7 C.C.No.5269/2013
Systems India Private Limited companies had copyright over
the software used to prepare flex, banner, advertisement, and
photos. Therefore, the prosecution has failed to prove that the
above said companies had copyright over the alleged software
used by the accused.
12. It appears the prosecution has not examined any
witnesses and has not marked any documents to show that
the accused is the owner of Supra Digital Company. However,
from the testimony P.Ws.1 to 5 no doubt it is true that the
accused is the owner of Supra Digital Company. Moreover,
the testimony of P.Ws.1 to 5 that the accused is the owner of
Supra Digital Company is not challenged by the accused.
Therefore, the prosecution has successfully proved that the
accused is the owner of Supra Digital Company. In my
opinion, mere proving that the accused is the owner of above
referred Supra Digital Company is not sufficient to connect
him for the offences alleged against him unless the
prosecution proves the seizure mahazar of seized CPC beyond
all reasonable doubt. In the instant case, the prosecution has
not proved the seizure mahazar. Moreover, the prosecution
has not proved that the accused without obtaining any license
or consent from the copyright holder companies had stored
the software and using the same without obtaining license or
permission. Therefore, having regard to the facts and
circumstances of the case and the evidence available on
8 C.C.No.5269/2013
record, I am of the considered opinion that the prosecution
has failed to prove 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 under section 63(B), 65 of Copyright Act, 1957 and Section 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.O.1 the property seized under PF.No.277/12 one Computer CPU confiscated to Government 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 23rd day of July 2015) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
9 C.C.No.5269/2013P.W.1 Annaiah Honnaiah P.W.2 Tulasi P.W.3 Jabir Mehaboob Sharaiff P.W.4 Thippeswamy P.W.5 Mallikarjuna P.W.6 Shivanna LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1 Mahazar Ex.P.1(a) Signature of P.W.1 Ex.P.1(b) Signature of witness Ex.P.1(c) Signature of witness Ex.P.1.(d) Signature of witness Ex.P.1(e) Signature of witness Ex.P.2 to 5 Statement Ex.P.6 Complaint Ex.P.6(a) Signature of P.W.6 Ex.P.7 Complaint of C.W.4 Ex.P.7(a) Signature Ex.P.8 FIR Ex.P.8(a) Signature of P.W.6 Ex.P.9 to 18 Documents
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION :
M.O.1 Seized materials LIST OF WITNESSES EXAMINED, DOCUMENTS & MATERIALS MARKED ON BEHALF OF THE DEFENCE: NIL IX ADDL.C.M.M. Bangalore.10 C.C.No.5269/2013
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