Delhi District Court
State vs . Kailash Chand on 6 March, 2014
IN THE COURT OF SH. VINOD KUMAR GAUTAM
ACMM-02 (CENTRAL) : DELHI
State Vs. Kailash Chand
FIR No. : 261/2000
PS : Lohori Gate
U/s : 63 C. R. Act
& 79 Trademark Act
Date of Institution : 07/12/2000
Date of reserve of order : 22/02/2014
Date of announcement : 06/03/2014
Unique I. D. No. : 02401R0473802003
JUDGMENT
1. Serial No. of the case : 122/CB/09
2. Name of the Complainant : Sh. Krishan Gopal Sharma
3. Date of incident : 24/06/2000
4. Name of accused persons : Kailash Chand S/o Sh. Jai Prakash
House No. 317, Kucha Sanjogi Ram,
Naya Bans Khari Bawli, Delhi.
5. Offence complained of : U/s 63 C.R. Act & 79 T.M. Act.
6. Plea of accused : Pleaded not guilty
7. Final Order : Acquitted
8. Date of such Order : 06/03/2014
BRIEF REASONS FOR SUCH DECISION:
1. The case of the prosecution against the accused is that on 24.06.2000 a complaint was received from Sh. Krishan Gopal Sharma FIR No. 261/2000 Page no. 1 of 13 constituted attorney. Sh. Bal Kishan Gupta is engaged in the business of manufacturing, marketing and selling of Pan Masala, mouth freshner, gutka, Zarda etc. and he is the true owner of trade mark of Chutki under the trade and merchandise marks act and he has also owner of copyright design etc. and is selling the said goods under the trademark and pouch chutki and that same in sample trader has started selling spurious and sub-standard Pan Masala packed in the pouches identical or deceptively similar design, colour etc. with the same name CHUTKI. A complaint was received to SHO PS Lohori Gate from Sh. Krishan Gopal Sharma on which a raiding party was constituted and on 24.06.2000 at about 5.55 P.M, a raid was conducted at shop no. 6017, Gali Arya Samaj, Naya Bans within the jurisdiction of police station Lahori Gate and accused was found in possession of 127 packets of Chutki Mouth Freshener containing 60 pouches in each packet and 260 loose pouches, 48 packets of Dilbagh Gutka each packet contains 54 pouches and 48 packets of Dilbagh Gutka each packet containing 54 pouches and 48 packets of Raj Darbar Gutka each packet containing 54 pouches were found from the shop of the accused for the purpose of selling and infringes the copyright of the complaint which is also appears the false trademarks FIR No. 261/2000 Page no. 2 of 13 thereby the accused committed offence punishable under section 63 Copyright Act, 1957 and under section 79 of Trademark Act.
2. On completion of investigation, chargesheet was filed against the accused. After supply of documents to the accused, charge under Section 63 Copyright Act, 1957 and 79 Trade Mark Act was framed against the accused on 21.04.2004, to which he pleaded not guilty and claimed trial.
3. To prove its case, the prosecution has examined six witnesses i.e PW-1 Krishan Gopal Sharma, PW-2 ASI Sakhawat Khan PW-3 SI Shiv Singh, PW4 SI Jai Kumar, PW-5 Sh. Kishan Gupta and PW-6 Sh. Vipin Kumar. Thereafter, further prosecution evidence was closed. PW Rajesh Sharma and PW Purna Ram Sarang were not examined as the summons sent to these witnesses on more than one occasions received back with the report that these witnesses are not traceable at the given address.
4. On 27/01/2014, statement of the accused was recorded under Section 313 Cr.P.C. wherein the accused has stated that no FIR No. 261/2000 Page no. 3 of 13 recovery was done from him or from his shop and he was forced to sign on blank papers in the police station and he had never sold any material of the complainant because of low profit margin therefore question of selling duplicate products never arose and no raid was conducted at his shop and he has been falsely implicated in the present case at the instance of the complainant. However, the accused has not led any evidence in his defence.
5. I have heard the arguments advanced by the learned APP for the State and the learned defence counsel and have gone through the entire record.
6. Learned counsel for the accused has contended that the accused has been falsely implicated in the present case and the investigating officer has not done the compliance of Section 64 of the Copyrights Act in the present case. It is further contended that the complainant has not produced himself in the court for his cross examination to avoid the questions pertaining to the evading of the excise duty as it is a general practice in the market that some of the goods are sold genuinely and some are sold otherwise to avoid FIR No. 261/2000 Page no. 4 of 13 payment of the excise duty. It is further contended that the investigating officer has also not been examined in the present case and his non-examination calls for drawing an adverse inference qua the case of the prosecution. It is further contended that as per the record, the raid was conducted by the police on the basis of Daily Dairy entry and not on the basis of the F.I.R. as alleged to the contrary by the prosecution.
7. Learned counsel for the accused has further contented that the seizure memo has not been proved in the present case as the investigating officer has not been examined and the complainant has not turned up for his cross examination. He has further contended that the PW-2 has admitted that the F.I.R. number was later on written on the seizure memo which is not permissible and that at the time of the arrest of the accused, no F.I.R. was registered in the present case and the police has conducted the alleged raid on the basis of the Daily Dairy entry and not on the basis of the F.I.R.
8. Section 16 of the Copyright Act, 1957 (herein after referred as 'Act') stipulates that no person shall be entitled to copyright or any FIR No. 261/2000 Page no. 5 of 13 similar right in any work, whether published or unpublished otherwise than under and in accordance with the provisions of the Act or of any other law for the time being in force.
9. Chapter 10 of the Act deals with registration of copyright.
Section 44 contained in the said chapter provides for keeping of a resister in the prescribed form at the Copyright office to be called as the Register of Copyright. Section 45 deals with entries to be made in that register when necessary application in the prescribed form alongwith the prescribed fee is made to the Registrar of Copyrights. Section 47 is the provision which makes the Register of Copyrights and indexes thereof open for inspection. Section 48 is the provision which says that the Register of Copyrights is the prima facie evidence of the particulars entered therein. Therefore, to have a Copyright in any work, an application must have to be made for getting the same registered with the Registrar of Copyrights in accordance with the provisions of Chapter 10 of the Act.
10. Section 78 of the Trademarks and Merchandise Marks Act 1958 ( herein after referred as 'Act') is the penal provision for applying FIR No. 261/2000 Page no. 6 of 13 false trademarks and Section 79 is penal provision for selling goods to which a false trademark of false trade description is applied. Chapter 2 of the Act deals with the Register and conditions for registration and Chapter 3 of the Act deals with procedure for registration and duration of registration. Section 29 of the Act defines what is an infringement of the Trademarks and section 31 is the provision which says that registration is the prima facie evidence of a valid trademark. Therefore the complainant who complains of infringement of his trade mark in respect of any article by some body else must first establish that he has a registered trade mark with the Registrar of the Trade Marks. It has not been proved on record that the complainant company was having a registered trademark with the Registrar of Trade Marks which is a necessary pre-condition which would attract the provisions of Sections 78 & 79 of the Act.
11. The contention of the learned counsel for the accused is that all the proceedings were done while sitting in the police station and no raid was conducted as alleged by the prosecution. As per the case of the prosecution, all the members of the raiding party were either police officials or representative of the complainant. There is no independent FIR No. 261/2000 Page no. 7 of 13 public persons from the vicinity have been joined in the investigation or been made a witness in conducting a raid. Though, as per the prosecution the raid was conducted at about 5.55 pm at the shop situated at Arya Samaj Road which is a busy commercial place. Therefore, it cannot be said that there was no availability of the public witness at the spot as besides the passersby the persons present at nearby shops would have been easily made a witness to the alleged raid. There is no evidence as to whether any efforts have been made by the police officials to join the independent public witness from the nearby shops in the raid or during the investigation of the case. Therefore, non-joining of the independent public persons in the raid or during the investigation also raises a doubt on the story of the prosecution. In a case title AIR 1956 Cr. L.J. 1234, it was held that, "In the event of any doubt as to the guilt of accused, the benefit will go to the accused".
12. In case titled as Anoop Joshi Vs. State" reported in 1992(2) C.C. Cases 314(HC), the Hon'ble High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it FIR No. 261/2000 Page no. 8 of 13 should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
13. In case titled as Roop Chand Vs. The State of Haryana reported in 1999 (1) C.L.R. 69, the Punjab & Haryana High Court had held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that FIR No. 261/2000 Page no. 9 of 13 the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public, the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded FIR No. 261/2000 Page no. 10 of 13 against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
14. The prosecution has failed to prove that the PW Sh. Krishan Gopal Sharma was authorised to file the complaint on behalf of the complainant Sh. Bal Kishan Gupta or he has ever authorised Sh. Krishan Gopal Sharma to file the complaint on his behalf. There is no evidence on record to prove that the articles recovered from the possession of the accused were counterfeit articles. The investigating officer has not been examined to prove that he has taken any original products from Krishan Gopal Sharma before conducting the raid to compare the same with the duplicate or pirated products. There is also no evidence on record to prove that there was any material before the investigating officer to differentiate the spurious articles from the genuine articles of the complainant company. Even there is no evidence on record to prove that the PW-1 was having some technical qualification to identify the counterfeit products from the genuine FIR No. 261/2000 Page no. 11 of 13 products. There is also no evidence that the investigating officer has sent the seized articles to any agency or has obtained the report from any expert agency with regard to taking its opinion regarding the piracy of the articles recovered from the possession of the accused. The prosecution has failed to prove that the goods recovered from the possession of the accused were spurious or he has infringed the copy right of the complainant in respect of the seized articles.
15. Learned counsel for the complainant has contended that the investigating officer has not produced the alleged infringed goods or articles before the Magistrate after alleged seizure of the same and has not complied the mandatory provision of section 64 of Copy Right Act and even there is no evidence that the investigating officer has handed over the seal to the complainant after the seizure and sealing of the goods. There is merits in the contention of the learned counsel for the accused as there is no evidence on record that the alleged seized property was produced by the investigating officer before the Magistrate in compliance of the Section 64 of the Copy Right Act which also creates a doubt on the story of the prosecution.
FIR No. 261/2000 Page no. 12 of 13
16. In the present case, the PW-1 who is the complainant and attorney of Sh. Bal Kishan Gupta has not produced himself in the court for his cross examination. There is also merit in the contention of learned defence counsel that the PW-1 has not produced himself for his cross examination so as to not face the questions regarding evading the payment of the excise duty. Even otherwise, the incomplete testimony of the PW-1 cannot be relied upon. The prosecution has failed to prove that the complainant was the owner of the copyright in respect of the alleged infringed articles recovered from the accused. The testimonies of the prosecution witnesses, who are examined in the present case are either the official or formal witnesses and their testimonies are not sufficient to connect the accused with the charged offences.
17. In view of the above discussions, I am of the considered view that the prosecution has failed to prove on record the guilt of accused beyond reasonable doubt. Hence, the accused is held not guilty and is acquitted. File be consigned to record room.
Announced in the open court (V. K. GAUTAM)
on 06/03/2014 ACMM-02/CENTRAL
DELHI
FIR No. 261/2000 Page no. 13 of 13