Delhi District Court
Sunnawar Ali vs The State on 5 September, 2022
IN THE COURT OF SH REETESH SINGH: ADDITIONAL SESSIONS
JUDGE-2 (EAST), KARKARDOOMA COURTS, DELHI
Crl. Appeal No. 301/2016
IN THE MATTER OF :-
Sunnawar Ali
S/o Sh. Aasiqsh Hussain
R/o H.No. D-142, Gali no. 2,
Chand Bagh, Delhi-110094
Mobile No. 9990451674 .....Appellant
Vs.
The State ..... Respondent
Date of institution : 15.10.2016
Final arguments : 23.08.2022
Date of order : 05.09.2022
ORDER
1. This appeal has been filed against the impugned order dated 26.09.2016 by which the appellant Sunnawar Ali was convicted for the offences under section 63 of the Copyright Act and section 420 of the IPC as well as against the subsequent order on sentence dated 30.09.2016 by which the appellant was sentenced to undergo simple imprisonment for a period of five years and imposed fine of Rs. 5,000/- for the offence under section 420 of the IPC. In default of payment of fine, appellant was liable to undergo further simple imprisonment for a period of one month. For the offence under section 63 of the Copyright Act, appellant was sentenced to undergo simple imprisonment for a term of three years and imposed fine of Rs. 1,00,000/-. In default of payment of fine, appellant is CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 liable to undergo further simple imprisonment for a period of one year. Both the sentences were directed to run consecutively i.e. one after the other.
2. Brief facts leading to the filing of the present appeal are that FIR No. 136/2004 of PS Farsh Bazaar was registered on the basis of a complaint dated 13.04.2004 of Sh. Satish Chandra, Authorized Representative of M/s Pearl Drinks Ltd. addressed to DCP Economic Offences Wing, Delhi. In the said complaint, it was alleged that a complaint had been received by the said company from Vijay Singh with the allegations that he had purchased two Pepsi 300 ml bottles in the area of Vishwas Nagar. The taste of the drink in one bottle was unpleasant and thus Vijay Singh gave the other bottle to the said company for analysis. Chemical analysis of the bottle submitted by Vijay Singh was conducted by the company in their laboratory as per which it was found that the bottle had been manufactured locally, crown had been closed manually. The phiso-chemical parameters of the liquid did not conform to the norms of the company and as prescribed under the Prevention of Food Adulteration Act. Allegation made in the complaint of the said company was that some people were involved in illegal removal of the Pepsi bottles of the company from the market which were being reused with spurious drinks. Copy of the complaint of Vijay Singh was also enclosed with the complaint dated 13.04.2004 of M/s Pearl Drinks Ltd.
3. Investigation of the FIR was assigned to SI K.B. Jha who conducted the investigation of this case. As per the charge-sheet, Satish Chandra, AR of the complainant company informed SI K.B. Jha that the appellant Sunnawar Ali was involved in manufacturing of spurious Pepsi, Mirinda etc from premises 618/5/3- A, Balram Gali, Vishwas Nagar, Shahdara, Delhi. Raid was conducted by a police team led by SI K.B. Jha along with the complainant on 15.04.2004 at the premises 618/5/3-A, Balram Gali, Vishwas Nagar, Shahdara, Delhi. The appellant Sunnawar CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 Ali was found present at the said premises who disclosed that he was the owner of the unit where a bottling plant was found under operation. During search a large number of empty bottles of Pepsi, Limca, Thums-Up, Coke were found. Huge number of crowns (caps) of soft drink bottles and chemicals / flavouring liquids were also found. Charge-sheet further states that several crates of filled bottles of soft drinks of the above mentioned make were also found. Also found were certain machines including Co2 cylinders used in the bottling plant. The same were seized after taking of photographs and then sealed. SI K.B. Jha took out one crate as samples of different brands of filled up bottles. Sunnawar Ali was unable to produce any authority/ license to manufacture soft drinks of the said make and description.
4. Charge-sheet further states that during investigation accused Sunnawar Ali was arrested. Rent Deed of the premises 618/5/3-A, Balram Gali, Vishwas Nagar, Shahdara, Delhi were collected as per which Ashiq Hussain, father of Sunnawar Ali was the tenant of the said premises of which Ashok Kumar Sharma was the landlord. Charge-sheet states that communications were sent to PFA Department, Government of NCT of Delhi to test the samples lifted from the premises of the appellant but the said authority by letter dated 29.11.2004 refused to test the samples stating that they analyze samples which are lifted under the provision of the Prevention of Food Adulteration Act and not otherwise. Charge- sheet thus states that the samples lifted from the premises of the appellant could not be tested.
5. By order dated 06.07.2007, charge for the offences under section 63 of the Copyright Act and section 420 of the IPC were framed against the appellant Sunnawar Ali to which he pleaded not guilty and claimed trial. During the course CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 of trial, the prosecution has examined ten witnesses to prove the charges against the appellant. The details of the witnesses examined are tabulated as under:-
PW No. Name Relevance
1 HC Hari Kishan He was the Duty Officer of PS Farsh
Bazaara who registered the FIR as
Ex.PW1/A on the basis of rukka sent
by IO/SI K.B. Jha through Ct.
Bachchu Singh.
1 Satish Chandra He is the Authorized Representative of
M/s Pearl Drinks Ltd. on whose
complaint the FIR was registered.
2 Ashok Kumar He is the owner of the premises
Sharma 618/5/3-A, Balram Gali, Vishwas
Nagar, Shahdara, Delhi from where
the appellant Sunnawar Ali was
running his bottling plant. He had
rented out the premises to Ashiq
Hussain, father of the appellant.
3 HC Bachchu Singh He had taken the rukka prepared by SI
K.B. Jha and got the FIR registered.
4 Vijay Singh He had purchased two bottles of Pepsi
and had made a complaint to M/s Pearl
Drinks Ltd.
5 Inspector Balram He was the IO of the case on
03.09.2005 and had collected Rent
Deed of the property 618/5/3-A,
Balram Gali, Vishwas Nagar,
Shahdara, Delhi from landlord Ashok
CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20
Kumar Sharma.
6 Jai Prakash Saini He had taken photographs of the
bottling plant of the appellant on
15.04.2004 during the raid on the
direction of the IO.
7 Narender Kumar He was a Government Stamp Agent
Madan who had issued non-judicial stamp to
Ashiq Hussain which were used on the
Rent Deed of the premises 618/5/3-A,
Balram Gali, Vishwas Nagar,
Shahdara, Delhi.
8 G.C. Sharma He produced the records of electricity
connection at the premises 618/5/3-A,
Balram Gali, Vishwas Nagar,
Shahdara, Delhi which was in the
name of Ashok Kumar Sharma
9 Ankit Garg He produced the records relating to
trade marks of products issued by the
Trade Mark Registry
10 SI K.B. Jha He is the first IO of the case.
6. Prosecution evidence was closed on 24.05.2016. Statement of the appellant Sunnawar Ali was recorded under section 313 of the Cr.P.C. on 27.07.2016. He admitted that empty bottles of various brands were found from his premises but denied that any of them were filled. He admitted that the rent agreement in respect of the premises 618/5/3-A, Balram Gali, Vishwas Nagar, Shahdara, Delhi were in the name of his father Ashiq Hussain. He denied the rest of incriminating evidence put to him. Appellant desired to lead evidence in his CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 defence. Matter was fixed for recording of defence evidence. However, on 09.08.2016 appellant stated that he did not wish to lead any defence evidence.
7. After considering the submissions of the Ld. Counsel for the appellant and perusing the evidence on record, the Ld. Trial Court convicted and sentenced the appellant in the manner as recorded above.
8. Sh. S.K. Ahluwalia and Sh. Anurag Ahluwalia, Ld. Counsels for the appellant have argued that the charge for the offence under section 63 of the Copyrights Act was not duly proved. He submitted that PW-1 Satish Chandra did not place on record any document to show that he was working with M/s Pearl Drinks Limited. Original record pertaining to Copyright and Trade Mark in favour of M/s Pearl Drinks Limited were not produced during the trial. He submitted that PW-1 Ankit Garg, Data Entry Operator produced trade marks registered in the name of M/s Pepsi Cola and M/s Pepsico Inc. but no official from the said companies were examined as witnesses to prove the charge of the infringement of copyright. He further submitted that the offence under section 420 of the IPC was also not proved. It was submitted that as per the case of the prosecution Vijay Singh PW-4 had purchased spurious cold drinks from Vishwas Nagar and had handed over one such bottle to M/s Pearl Drinks Limited. However, PW-4 did not give any address from where he had purchased the said bottles. PW-4 in evidence has deposed that he purchased the Pepsi bottles from one rehdi/ theli and also denied having given the bottles to M/s Pearl Drinks Limited. No such bottle was produced during the trial.
9. Sh. S.K. Ahluwalia and Sh. Anurag Ahluwalia, Ld. Counsels for the appellant have further argued that there was no evidence to prove that the contents of the bottles purchased by PW-4 Vijay Singh were spurious as the same were never sent for analysis to any laboratory. There is no evidence to prove that it was CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 the appellant who had sold any bottles to PW-4 Vijay Singh. It was submitted that rent agreement of the premises from where alleged recovery of bottles were made reflected that the same were under the tenancy of Ashiq Hussain and not the appellant. Ashiq Hussain was kept in column no. 12 of the charge-sheet and not made an accused. The landlord PW-2 Ashok Kumar Sharma in cross-examination has deposed that he did not know the name of the accused but deposed that it was the son of Ashiq Hussain. PW-2 has deposed that Ashiq Hussain was also using the premises but did not know what activity was being carried out. It was submitted that as per PW-8 G.C. Sharma, electricity connection was in the name of PW-2 Ashok Kumar Sharma at premises H.No. 618/3-A, Shankar Gali, Vishwas Nagar while the godown has address 618/5/3, Balram Gali and thus ownership of the godown in favour of PW-2 was not proved. It was submitted that it was not the case of the prosecution that the appellant was manufacturing drinks at the time of the raid. As per the evidence of the relevant witnesses, the appellant was sitting in the rented premises of his father. It was submitted that the godown where raid was conducted, was situated in a thickly populated area but no public witnesses or neighbours were joined in the investigation. Prosecution witnesses have failed to reveal the address of the premises where raid was conducted. It was submitted that as per PW-1, 25 photographs were taken during the raid but PW-6 Jai Prakash Saini did not prove the negatives. Reliance has been placed by the Ld. Counsels for the appellant on the following case laws:-
(i) (2015) 2 Supreme Court Cases 501
(ii) AIR 2020 Supreme Court 3544
(iii) Criminal Appeal o. 5086 of 2005 Pawan Singh Vs State of UP
(iv) High Court of Karnataka at Bangaluru Dated 10.03.2021
(v) 2022 Live Law (SC) 510 CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20
10. Sh. IUH Siddique, Ld. Addl. PP for the State has submitted that there was sufficient evidence on the record on the basis of which charges have been proved against the appellant. He submitted that the appellant in his statement recorded under section 313 of the Cr.P.C. himself admitted recovery of large number of empty bottles of cold drinks of the complainant. He submitted that the rent agreement of the premises from where the recovery was made proves association of the appellant with the same as it was his father who was the tenant as per the rent agreement. He submitted that there is no explanation regarding recovery of bottling / filling material / machines at the said premises and devices used for affixing crowns on soft drink bottles of the complainant. He submitted that chemicals and flavouring material were found at the premises which reflect that soft drink bottles of the complainant were being filled with spurious drinks and were being sold to the public at large thereby committing the offences of cheating punishable under section 420 of the IPC and infringement of copyright under section 63 of the Copyrights Act.
11. I have heard the Ld. Counsel for the appellant and Ld. Addl. PP for the State. Written submissions have been filed on behalf of the appellant which have been carefully perused by me. I have gone through the record of the Trial Court.
12. Trial Court record reveals that charges were framed against the appellant on 06.07.2007. In respect of the offence under section 420 of the IPC, it is alleged that the appellant was found manufacturing or selling spurious drinks with labels Pepsi, Mirinda, Thums Up, Limca etc knowing that the same had not been manufactured by the said entities and that he had exposed the same for sale in the market and had thus cheated the public for his wrongful gain. As per the charge-sheet, Vijay Singh PW-1 had made a complaint to the Manager of M/s Pearl CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 Drinks Limited mainly Satish Chandra PW-2 that duplicate Pepsi bottles were being sold openly in Vishwas Nagar area of Shahdara and that he had purchased two bottles of Pepsi. After drinking from one bottle, he found that the taste was very unpleasant and thus he went and gave the other empty bottle purchased by him to the Manager of M/s Pearl Drinks Limited.
13. Vijay Singh PW-4 in his evidence before the Ld. Trial Court has deposed in his examination in chief that on 05.04.2004, he purchased a Pepsi bottle 300 ml from a rehdi/ theli and after drinking it, he felt that the taste was bad and he complained to the company. He did not depose anything else. At that stage, the Ld. APP for the State was granted permission to cross-examine PW-4 Vijay Singh on the ground that he had resiled from his previous statement. In cross-examination conducted by Ld. APP for the State, PW-4 Vijay Singh deposed that he did not remember whether he had sent one bottle of Pepsi to the Manager Pearl Drinks Limited. He stated as correct that he had tried to look for the rehdi/ theli with the police.
14. Neither in the complaint dated 05.04.2004 nor in his evidence in Court did PW-4 Vijay Singh state that he had purchased the Pepsi bottle from the appellant. PW-4 Vijay Singh did not depose in the Court that it was the appellant Sunnawar Ali who had sold spurious Pepsi bottles to him.
15. Ex.PW1/A is the complaint of M/s Pearl Drinks Limited to the EOW dated 13.04.2004 given by PW-1 Satish Chandra, Authorized Representative of M/s Pearl Drinks Limited. As per the said complaint, the bottle of Pepsi which was received by them from Vijay Singh PW-4 had been chemically analyzed in their laboratory and the phiso-chemical parameters did not conform to their norms as well as norms prescribed under the Prevention of Food Adulteration Act.
CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20
16. Satish Chandra was examined as PW-1. In his examination in chief, PW-1 in respect of the above has deposed that the bottle received from customer Vijay Singh had been chemically analyzed which revealed that its contents was spurious. However, the chemical analysis report referred to by PW-1 Satish Chandra in his examination in chief and in his complaint Ex.PW1/A was not placed on record. In cross-examination PW-1 Satish Chandra has deposed that the bottle produced by Vijay Singh was photographed in the laboratory of their company. He could not remember whether the negatives of the photographs were given to the police. He could not remember name of the shop from where Vijay Singh had purchased the same. He deposed that he had only given a complaint in writing to the police.
17. From the evidence of PW-1 Satish Chandra, it is clear that the bottle purchased by PW-4 Vijay Singh was not produced in the Court. Chemical analysis report which has been referred to by PW-1 Satish Chandra was not produced in the Court. There is nothing in the evidence of PW-1 Satish Chandra from which it can be inferred that it was the appellant Sunnawar Ali from whom PW-4 Vijay Singh had purchased the bottle which is stated to have been given by Vijay Singh to M/s Pearl Drinks Limited along with his complaint dated 05.04.2004.
18. The charge-sheet states that on 15.04.2004 raiding team of the police had gone to the premises of the appellant and had recovered large number of filled bottles of soft drinks of various brands. It is stated in the charge-sheet that the bottles recovered from the premises of the appellant could not be sent for chemical analysis to the PFA Department of Government of NCT of Delhi as the said department refused to conduct any such analysis on the ground that they analyze only those samples lifted under PFA Act and not samples received from other agencies. Thus, even in respect to the soft drink bottles recovered from the CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 premises of the appellant, there is no report from any laboratory or organization that their contents were spurious. PW-10 is SI K.B. Jha who had carried out the raid at the premises of the appellant on 15.04.2004. There is nothing in his evidence to suggest that the contents of the bottles seized from the premises of the appellant were tested in any laboratory.
19. The offence punishable under section 420 of the IPC is defined under section 415. In respect of the said offence, in the case of MNG Bharateesh Reddy V/s Ramesh Ranganathan & Anr. reported in 2022 SCC OnLine SC 1061 the Hon'ble Supreme Court was pleased to hold as under: -
"13. The ingredients of the offence of cheating are spelt out in Section 415 of the IPC. Section 415 is extracted below:
"415. Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation - A dishonest concealment of facts is a deception within the meaning of this section."
14. The ingredients of the offence under Section 415 emerge from a textual reading. Firstly, to constitute cheating, a person must deceive another. Secondly, by doing so the former must induce the person so deceived to (i) deliver any property to any person; or (ii) to consent that any person shall retain any property; or (iii) intentionally induce the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and such an act or omission must cause or be likely to cause damage or harm to that person in body, mind, reputation or property."
20. As held by the Hon'ble Supreme Court in the case of MNG Bharateesh Reddy V/s Ramesh Ranganathan & Anr (supra), for the offence of cheating to take place, "a person must deceive another". The prosecution thus had CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 to establish that the appellant had deceived some person. In the present case the alleged two bottles purchased by PW-4 Vijay Singh were not produced in the Court. It is not in the evidence of PW-4 Vijay Singh that he had purchased these two bottles from the appellant. PW-1 Satish Chandra has also not stated that the said bottles were purchased by Vijay Singh from the appellant. The said two bottles were not produced in the Court. There is no report of any laboratory on the record of the Ld. Trial Court as per which the contents of the bottles purchased by Vijay Singh were spurious. The contents of the bottles recovered from the premises of the appellant on 15.04.2004 have also not been sent for testing in any laboratory. Thus, there is no evidence on the record of the Ld. Trial Court to prove that the contents of the bottles purchased by Vijay Singh or the contents of the bottles recovered from the premises of the appellant were spurious. It is also not the case of the prosecution that when the appellant was found at his premises with numerous filled and empty bottles, he was selling any of the same to any person. In these facts and circumstances, as there is no person who stood cheated or deceived by the appellant, the offence of cheating as defined under section 415 of the IPC and in the manner explained by the Hon'ble Supreme Court in the case of MNG Bharateesh Reddy V/s Ramesh Ranganathan & Anr (supra) is not made out.
21. In respect of the charge under section 63 of the Copyright Act, the allegations against the appellant was that he was found manufacturing spurious drinks using the labels Pepsi, Mirinda, Thums Up, Limca etc without any license / right and he thus infringed the copyright of M/s Pearl Drinks Limited. Raid conducted on 15.04.2004 at the premises of the appellant, both PW-1 Satish Chandra and the IO PW-10 SI K.B. Jha deposed that they conducted a raid at the premises 618/5/3-A, Balram Gali, Vishwas Nagar, Shahdara, Delhi where the appellant Sunnwar Ali was found to be present. Sunnawar Ali was identified in the CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 Court by both PW-1 and PW-10. They found his premises with equipment / machinery for manufacture of soft drinks of brands Pepsi, Limca, Coke, Mirinda etc. As per their evidence, 2,188 empty bottles capacity 300 ml and 200 ml with these brands were found at the premises of the appellant. 43 kg of caps/ crowns of different brands like Pepsi, Limca, Coke etc were also found. This case property was kept in gunny bag and sealed. The details of the seized bottles are mentioned Ex.PW1/B is the search cum seizure memo which lists the recovered empty bottles and crowns with the above mentioned brands printed on them. The same bears the signatures of PW-1 Satish Chandra at point A and of PW-10 SI K.B. Jha at point B. It also bears the signature of the appellant.
22. Although submissions had been made on behalf of the appellant in this appeal that the recovery was doubtful, the above evidence regarding the said recovery was put to the appellant at the stage of recording of his statement under section 313 of the Cr.P.C. Question 12 pertained to the case property which was recovered from his premises. In the answer to question no. 12, appellant had stated as under:-
"Ans. It is correct that empty bottles were found from shop but it is wrong that the above said filled up bottles were found."
23. Further, in response to question No. 29 regarding whether the appellant/ accused wanted to state anything else, the appellant/ accused stated as under:-
"A: It is incorrect that the above said bottles were superior or manipulated. I used to work as a supplier of the said cold drinks. I am innocent and falsely implicated in this case."
24. As such, there is no dispute that empty bottles of the above mentioned brands were found from the premises of the appellant. What were also found were certain machinery, carbon dioxide cylinder, crowning machine etc. The evidence of PW-1 and PW-10 thus revealed that the appellant was using bottles containing the CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 logo / marks of M/s Pepsi Cola Company and M/s Pepsico Inc records relating to which were produced by PW-9.
25. The complaint Ex.PW1/A of PW-1 Satish Chandra states that M/s Pearl Drinks Limited had been granted a license to manufacture and sell Pepsi bottles in Delhi. PW-1 Satish Chandra was examined in chief in part on 07.04.2008 which was deferred for production of original documents regarding trademark and copyright. His examination in chief resumed on 01.09.2014 and in the meantime PW-9 Ankit Garg, Data Entry Operator of Trademark Registry, Dwarka had produced the certified copies of trademarks in favour of Pepsi Cola-Ex.PA, PB and PC and Pepsico Inc-Ex.PD, PE, PF and PG. PW-9 was not subjected to any cross- examination. There is no cross-examination of PW-1 Satish Chandra regarding the aspect that M/s Pearl Drinks Limited had the license to manufacture and sell Pepsi in Delhi. It is not the case of the appellant that he himself had been given the license to manufacture soft drinks Pepsi, Limca, Thums Up, Coke, Mirinda.
26. I may note at this stage that the records produced by PW-9 Ankit Garg, Data Entry Operator of Trademark Registry, Dwarka were in respect of Trademarks and not Copyright. However, the fact that copyright in the three field device mark vests with M/s Pepsi Cola and Pepsico Inc is well established. Reference in this regard can me made to the judgment of the Hon'ble High Court of Delhi in the case of Pepsico, Inc. Vs. M/s. Savior Paper and Polymer Pvt. Ltd in CS(COMM) 491/2018 decided on 13.09.2018.
27. On the other hand, admittedly, the appellant does not hold any license to use or manufacture any article including soft drink of brands owned by M/s Pepsi Cola Company and M/s Pepsico Inc. The evidence on record i.e. the bottles and crowns recovered from the premises of the appellant and the machinery installed reveal that the appellant was using, without any license or authority, the CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 bottles of by M/s Pearl Drinks Limited, licensee of M/s Pepsi Cola Company and M/s Pepsico Inc. As recorded above, in response to question No. 29, the appellant in his statement under section 313 of the Cr.P.C. has stated that he was working as a supplier of the said cold drinks of the said brands. In these facts and circumstances, onus was upon the appellant to establish, even at the touchstone of preponderance of probabilities, that he had some authority or legal sanction to use the said bottles of the said brands. Although, the appellant stated that he wanted to lead evidence in defence, the appellant did not do so. The appellant did not bring on record any material to even remotely suggest that he had any authority to use the said bottles.
28. The offence under section 63 of the Copyright Act 1957, is of knowingly infringing copyright in a work or any other right conferred by the Copyright Act. In the present case, the appellant has admitted recovery of the soft drink bottles of brands owned by M/s Pepsi Cola Company and M/s Pepsico Inc. from his premises. He claimed that he was working as a supplier but no material in this regard was brought on record by the appellant. Appellant thus clearly infringed the copyright of M/s Pepsi Cola Company and M/s Pepsico Inc. by re-using soft drink bottles of brands owned by M/s Pepsi Cola Company and M/s Pepsico Inc. The offence under section 63 of the Copyright Act is thus clearly made out.
29. The evidence on the record of the Trial Court proves that the appellant was using bottles of soft drink of brands owned by M/s Pepsi Cola Company and M/s Pepsico Inc. without any authority or legal sanction. In the raid at the premises of the appellant, what were also found were large number of crowns of bottles, certain machinery, carbon dioxide cylinder, crowning machine etc. This leads to the inescapable conclusion that the appellant, without any authority or license, was re-using the bottles of soft drink of brands owned by M/s Pepsi Cola Company and CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 M/s Pepsico Inc. Question which arises is as to for what purpose he was using the bottles. In response to question No. 29, the appellant in his statement under section 313 of the Cr.P.C. has stated that he was working as a supplier of the said cold drinks. Thus, it is obvious that the appellant was offering to the public, cold drinks, in the bottles of soft drinks of brands owned by M/s Pepsi Cola Company and M/s Pepsico Inc. without any licence or sanction. This is nothing but deception of the public.
30. Although, this Court has held that the offence under section 415/420 of the IPC was not made out against the appellant, as technically no particular individual has been cheated by him, the evidence on the record clearly establishes commission of the offence of attempt to cheat which is punishable under section 511 of the IPC read with section 420. I may in this regard refer to certain case law. In the case of Abhayanand Mishra v. State of Bihar, (1962) 2 SCR 241 the Hon'ble Supreme Court was pleased to hold as under: -
"11. Another contention for the appellant is that the facts proved do not go beyond the stage of preparation for the commission of the offence of cheating, and do not make out the offence of attempting to cheat. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression attempt to commit an offence and is exactly what the provisions of Section 511 IPC, require. The relevant portion of Section 511 IPC, is:
"Whoever attempts to commit an offence punishable by this Code ... or to cause such a offence to be committed and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished...."
These provisions require that it is only when one, firstly, attempts to commit an offence and, secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for that attempt to commit the offence. It follows, CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 therefore, that the act which would make the culprit's attempt to commit an offence punishable, must be an act which, by itself or in combination with other acts, leads to the commission of the offence. The first step in the commission of the offence of cheating, therefore, must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence, as contemplated by Section 511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence."
31. The Hon'ble Supreme Court in the case of Abhayanand Mishra v. State of Bihar (supra) was pleased to further hold as under: -
"24. We may summarise our views about the construction of Section 511 IPC, thus: A person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence."
32. As held by the Hon'ble Supreme Court in the case of Abhayanand Mishra v. State of Bihar (supra), that in order to attract the offence of attempt to commit cheating, the act committed by the person accused need not be penultimate act towards the commission of that offence but must be an act during the course of committing that offence. In the present case, the evidence on the record reveals that the appellant had set up a factory for re-using soft drink bottles of brands owned by M/s Pepsi Cola Company and M/s Pepsico Inc. for filling material for their re-use. The intention was clear. Intention was to deceive a consumer into believing that what the appellant was offering was manufactured by M/s Pepsi Cola Company and M/s Pepsico Inc. Appellant therefore committed the offence of attempt to cheat punishable under section 511 of the IPC read with section 420 IPC.
33. In the present case, charge was framed against the appellant for the offence under section 420 of the IPC and not for the offence under section 511 read CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 with section 420 of the IPC. Section 222 (2) of the Cr.P.C. provides that when a person is charged with an offence and the facts have proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. In this regard, the Hon'ble Supreme Court in the case of Pandharinath v. State of Maharashtra, reported in (2009) 14 SCC has been pleased to hold as under:-
"19. This Court in Shamnsaheb M. Multtani v. State of Karnataka3 had an occasion to deal with Section 222 CrPC. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The Court observed as follows in the relevant para: (SCC p. 584, para 16) "16. What is meant by 'a minor offence' for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence."
20. So, if it appears to the court that Section 376 IPC is not applicable but a lesser offence under Section 376 read with Section 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511."
34. As provided for under section 222 (2) of the Cr.P.C. and held by the Hon'ble Supreme Court in the case of Pandharinath v. State of Maharashtra, this Court is empowered to convict the appellant for the lesser offence of attempt to cheat i.e. under section 511 of the IPC read with section 420 IPC. Thus, in view of the evidence on the record, the appellant is convicted for the offence of attempt to cheat under section 511 of the IPC read with section 420 IPC.
35. Now comes the question regarding sentence to be imposed upon the appellant for the offence for which he stands convicted, i.e. under section 511 of the IPC read with section 420 IPC and the sentence originally imposed upon him by the Ld. Trial Court for the offence under section 63 of the Copyright Act, 1957 which is simple imprisonment for a term of three years and fine of Rs.1,00,000/-.
CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 In default of payment of fine, appellant was liable to undergo further simple imprisonment for a period of one year.
36. As per section 511 of the IPC, the person who attempts to commit an offence under the Code, shall where no express provision is made by the Code, be punished with imprisonment of either description provided for the offence for a term which may extend to one half of the imprisonment of the longest term of imprisonment provided for that offence or with such fine as is provided for the offence or with both. The offence of cheating and dishonestly inducing delivery of property is punishable under section 420 of the IPC which attracts punishment of imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
37. Keeping in view the evidence on record i.e. the appellant was found operating a unit for re-using soft drink bottles without any license or authority fully equipped for re-filling with crowning machinery and carbon dioxide cylinders, I impose sentence of rigorous imprisonment of three years upon the appellant for the offence under section 511 of the IPC read with section 420 of the IPC. He is also imposed fine of Rs. 25,000/-. In default of payment of fine, the appellant shall undergo further simple imprisonment of six months.
38. For the offence under section 63 of the Copyright Act, 1957 the Ld. Trial Court had imposed upon the appellant the punishment of simple imprisonment for a term of three years and fine of Rs.1,00,000/-. In default of payment of fine, appellant was liable to undergo further simple imprisonment for a period of one year. In view of the evidence on the record, this Court is not inclined to interfere with the substantive sentence of simple imprisonment for a term of three years. However, the fine imposed i.e. of Rs.1,00,000/- and default sentence of CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20 imprisonment of one year is excessive. Fine of Rs. 50,000/- and default sentence of six months will be sufficient, in the opinion of this Court.
CONCLUSION
39. The net result of the above discussion is as under:-
(i) The impugned order dated 26.09.2016 convicting the appellant for the offence under section 420 of the IPC and the impugned order dated 30.09.2016 sentencing the appellant for the offence under section 420 of the IPC is set aside. The appellant is acquitted of the charge for the offence under section 420 of the IPC;
(ii) The appellant is convicted for the offence under section 511 of the IPC read with section 420 of the IPC and is sentenced to undergo rigorous imprisonment for a term of three years. Appellant is also imposed fine of Rs. 25,000/-. In default of payment of fine, the appellant shall undergo further simple imprisonment of six months;
(iii) The conviction of the appellant for the offence under section 63 of the Copyright Act, 1957 is upheld. However, the sentence imposed upon the appellant for the said offence is modified. For the offence under section 63 of the Copyright Act, the appellant shall undergo simple imprisonment for a term of three years. He is imposed fine of Rs. 50,000/-. In default of payment of fine, the appellant shall undergo further simple imprisonment for a term of six months;
(iv) Both the sentences i.e. for the offence under section 511 of the IPC read with section 420 IPC and for the offence under section 63 of the Copyright Act shall run concurrently. The appellant shall have benefit of 428 of the Cr.P.C. and the period of detention already undergone by him shall be set of against the said sentences of imprisonment.
40. The appeal stands disposed off in the above terms.
Digitally signed by (Reetesh Singh) REETESH SINGH REETESH Location: Karkardooma SINGH Court Date: 2022.09.08 15:59:26 +0530 ASJ-2/KKD/East/05.09.2022. Announced in open court on 05.09.2022 CA No. 301/2016 Sunnawar Ali Vs. State . Page No.19 of 20