Bangalore District Court
State By Shivajinagar Police Station vs Has Examined Four Witnesses. P.W.1 Anil ... on 5 May, 2016
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 5th day of May 2016
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 23581/2014
2.Date of Offence 28-08-2013
3.Complainant State by Shivajinagar Police Station
4.Accused Shakil
S/o Syed Ismail, aged 33 years,
Residing at No.15, B-Street, Old
Koracharapalya, Shivajinagar,
Bangalore.
5. Offences complained U/s. 51(1) and 63 of Copyright Act,
of 1957.
6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted
8.Date of Order 05-05-2016
REASONS
The Sub Inspector of police, Shivajinagar Police Station,
Bengaluru has filed this charge sheet against accused for the
offences punishable U/s. 51(1) and 63 of Copyright Act, 1957.
2 C.C.No.23581/2014
2. The brief facts of prosecution case are that, on
28-08-2013, at 7-0 p.m., in Digital Electronics and Gift shop,
at D.K.Street, Shivajinagar, Bangalore city within the limits of
Shivajinagar Police Station, the accused being the owner of
said shop was found in possession and selling of counterfeit
DVD players in the brand name of 'Philips' over which brand
M/s Philips Electronic India Ltd., had copyright without
obtaining any authorization or written consent from the
copyright holder and thereby infringed the copyright of said
company and further the accused was selling the same to the
general public as if said DVD players are supplied by the
copyright holder company and thereby cheated the general
public as well as copyright holder company and committed
aforesaid offences.
3. The accused is on bail. On receipt of charge sheet
copies, this court took cognizance of offences and furnished
copies of prosecution papers to the accused. After hearing on
charges, this court has framed the charge for the offences
punishable U/s.63 of Copyright Act, 1957 and section 420 of
IPC and read over to accused in the languages known to him,
he pleaded not guilty and claimed to be tried.
4. The prosecution to prove guilt against accused has
examined four witnesses as P.Ws.1 to P.4 and got marked six
documents at Exs.P.1 to Ex.P6, also marked thirty material
objects as M.Os.1 to 30. Since C.Ws.5 and 6 did not turn up
3 C.C.No.23581/2014
before this court, by rejecting the prayer of Sr.APP, this court
dropped the examination of said witnesses.
5. Thereafter, statement of accused as required under
section 313 of Cr.P.C., has been recorded. The accused denied
the incriminating evidence appeared against him, but did not
choose to adduce any defence evidence.
6. I have heard the arguments on both sides.
7. As stated above, the prosecution to prove guilt against
accused has examined four witnesses. P.W.1 Anil Kumar Peddi
Reddy is the complainant. P.W.2 Mahalingaiah.H.B is the head
constable who assisted C.W.8 the PSI of Shivajinagar Police
Station in conducting raid. P.W.3 Imtiyaz and P.W.4 Tabrez
Pasha are the independent seizure mahazar witnesses. In spite
of giving sufficient opportunities, the prosecution has not
examined the investigating officer who conducted
investigation.
8. I have carefully perused evidence on record. The
testimony of P.W.1 Anil Kumar the complainant indicates that
on 28-8-2013 in respect of selling of counterfeit DVD players
in the brand name of Philips in Digital Electronics and Gifts
and Global Electronics shops at D.K.Street at Shivajinagar,
Bangalore he lodged complaint to the Shivajinagar Police
station. Intern the PSI of said police station called two persons
4 C.C.No.23581/2014
as panchas, thereafter the said PSI, his staff, himself and
panchas visited the said Digital Electronics and Gifts shop and
found one person by name Shaki the accused herein. They
verified the said shop and found 30 counterfeit DVDs in the
brand name of Philips. Accordingly, C.W.8 has seized the
same by preparing seizure mahazar.
9. The testimony of P.W.2 Mahalingaiah.H.P the head
constable indicates that on 28-8-2013 at 6-40 p.m., when he
was on station duty C.W.8 the PSI of his police station took
him and his colleagues C.W.5 to 7 to the Digital Electronic and
Gift shop at D.K. street, Shivajinagar. C.W.8 called two
persons as pnachas, thereafter C.W.8 along with complainant
panchas, himself and his staff visited said shop and found one
person. C.W.8 informed the said person the purpose of his
visit and accordingly asked complainant to verify the said
shop. Intern C.W.1 has verified said shop and found 30
counterfeit DVD players in the brand name of Philips.
Accordingly, C.W.8 has seized the same by preparing the
seizure mahazar. Admittedly, P.W.2 not signed the seizure
mahazar.
10. P.W.3 Imtiyaz and P.W.4 Tabrez Pasha the
independent seizure mahazar witnesses have totally turned
hostile. The learned Sr.APP., treated these two witnesses as
hostile and further cross examined them but nothing worth is
elicited from them.
5 C.C.No.23581/2014
11. As stated above, in spite of giving sufficient
opportunities, the prosecution has not examined the
investigating officer who conducted entire investigation. In a
case like this, the offences have to be, proved in a
circumstantial evidence by way of proving the seizure mahazar
of seized DVD players beyond all reasonable doubt. Further,
the prosecution has to prove that the seized DVDs players are
counterfeit in the brand name of Philips. Further, the
prosecution has to prove that Philips Electronics India Ltd.,
had copyright over DVDs player in the brand names Philips.
Further, the prosecution has to prove that accused is the
owner of said shop.
12. As discussed above the prosecution to prove seizure
mahazar has examined four witnesses. P.W.3 and 4 the
independent seizure mahazar witnesses have totally turned
hostile. P.W.1 and 2 deposed regarding seizure mahazar of
seized DVDs player. The learned counsel for accused though
cross-examined them but nothing worth is elicited from them
to doubt their testimony in the matter of seizure mahazar and
seizer of DVD players. In my opinion, even though P.Ws.3 and
4 the independent seizure mahazar witnesses have turned
hostile, I have no reason to disbelieve the testimony of P.Ws.1
and 2. Therefore, this court is of the considered opinion that
the prosecution has successfully proved the seizure mahazar
of DVD players beyond all reasonable doubt.
6 C.C.No.23581/2014
13. It appears, during the course of investigation the
investigating officer C.W.8 herein has obtained opinion from
P.W.1 regarding seized DVD players as counterfeit. However,
said opinion not marked through P.W.1. Even the investigating
officer has not entered into witness box to speak regarding the
said opinion letter. I have carefully perused the opinion letter
wherein P.W.1 has stated the differences between original and
counterfeit DVD players and opinioned that seized DVDs
players are counterfeit. In my opinion, the opinion letter
produced along with chargesheet prima facie cannot be, relied
upon for the simple reason that the person who issued said
letter is the complainant who is always interest in favour of
copyright holder company as well as success of prosecution.
In my opinion, the investigating officer ought to have obtained
independent expert opinion from the lab, which established by
Philips Electronic India ltd., or in accordance with law. In my
opinion, mere saying by complainant that the sized products
are counterfeit is not sufficient to conclude that the seized
products are counterfeit. Moreover, the prosecution not
examined the investigating officer to speak regarding opinion.
Therefore, this court is of the considered opinion that the
prosecution has failed to prove that the seized DVD players are
counterfeit in the brand name of Philips.
14. It appears the investigating officer during the course
of investigation has obtained some documents pertaining to
Philips Electronic India ltd., more particularly the trademark
7 C.C.No.23581/2014
certificates. Unfortunately, the investigating officer has not at
all obtained copyright certificate in order to chargesheet the
accused. Admittedly, the investigating officer not filed charge
sheeted accused under Trademarks Act. Even though the
investigation officer has charge sheeted accused under
copyright Act, he has not collected copyright certificate for the
reason best known to him. Therefore, prima facie the
prosecution has failed to prove that Philips Electronic India
ltd., had copyright over DVD players in the brand name of
Philips.
15. Further, the prosecution has not examined any
witnesses and has not been marked any documents to prove
that the accused is the owner of Digital Electronic and Gifts
shop where the raid conducted. Therefore, looking from any
angle, this court is of the considered opinion that the
prosecution has failed to prove guilt against accused 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 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.
8 C.C.No.23581/2014His bail bond and surety bond stand cancelled.
The properties M.Os.1 to 30 are confiscated to government after appeal period is over.
Office to put auction of M.Os.1 to 30 in public auction by removing label Philips.
(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 5th day of May 2016) (J.V.Vijayananda) IX Addl.Chief MetropolitanMagistrate, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1, Anil Kumar Peddareddy; P.W.2, Mahalingaiah.H.B;
P.W.3, Imthiyaz; P.W.4, Tabrez Pasha;
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1, Complaint,
Ex.P.1(a), Signature of P.W.1,
Ex.P.2, Mahazar,
Ex.P.2(a), Signature of P.W.1,
Ex.P.2(b), Signature of P.W.3,
Ex.P.2(c), Signature of P.W.4,
Exs.P.3 to 5, Trademark Certificates,
Ex.P.6, Statement of P.W.4;
9 C.C.No.23581/2014
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION:
M.Os.1 to 30, Seized materials;
LIST OF WITNESSES EXAMINED, DOCUMENTS AND MATERIALS MARKED ON BEHALF OF THE DEFENCE: NIL IX ADDL.C.M.M. Bangalore.