Delhi District Court
Unknown vs Kamlesh Kumar Jha on 23 January, 2012
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Criminal Revision No. 20/11
Unique ID No.: 02401R0139862011
The State (through CBI)
..Revisio
nist
Versus
Kamlesh Kumar Jha
S/o Sh. R. C. Jha
R/o H. No. 620, Plot No. 7
Janki Apartments, Sector22
Dwarka, New Delhi
..Respond
ent
AND
Criminal Revision No. 21/11
Unique ID No.: 02401R0139882011
The State (through CBI)
..Revisio
nist
Versus
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Manmohan Chawla @ Titu
S/o Sh. Pritam Singh
R/o 418 IInd Floor, Prakash Mohalla
East of Kailash Garhi, New Delhi
..Respond
ent
ORDER
1. By this order, I shall decide two revision petitions filed by the CBI against above named Respondents who were arrayed as accused in the chargesheet filed by the CBI against them and other coaccused before Ld. Trial Court.
2. The brief facts of the case relevant for the purpose of deciding the present revision petitions are that case RC No. CY1/2005/E0004 was registered in the EOU IX Branch of CBI on 03.2.05 on the basis of source information. It is the case of the CBI that accused named in the aforesaid FIR in conspiracy with each other were engaged in import of pirated microsoft software and were selling it as genuine in Delhi. It is the case of the Prosecution that said counterfeit software was imported by M/s Genesis Softwares and the said firm was also supplying the same to other accused for retail selling. It is further alleged in the chargesheet that for this purpose they were obtaining counterfeit certificate of authentication :3: (COA) from one M/s Nataraj Computers, Nehru Place, New Delhi for using the same on the counterfeit software to sell the same as genuine and were accordingly cheating the public and the Government by evading due taxes.
3. CBI effected searches on 04.2.05 at sixteen places and allegedly during the aforesaid searches enquiry of incriminating articles/documents were recovered including certificate of authentication etc. The said recovered articles were got examined by the CBI from one Jean Paul Delisle, Sr. Product Identification Manager (Asia), Microsoft Hongkong and his opinion as regards the said recoveries were also brought on record in the chargesheet.
4. Insofar as the Respondent K. K. Jha is concerned, out of the sixteen places raided by the CBI, there were four places allegedly connected to the said Respondent K. K. Jha i.e the places mentioned at serial No. V, VI, XIII and XV as mentioned in Para 2 of the chargesheet. It is own case of the Prosecution that no counterfeit products were recovered from premises mentioned at 613 and 614. However, from the premises mentioned at serial No. 5 i.e. office of M/s K. K. Software Solutions Pvt. Ltd. the following softwares besides other documents were recovered:
(i) 08 Microsoft Window 2000 Professional Softwares;
(ii) 15 Microsoft XP Professional Softwares; :4:
(iii) Unpacked Microsoft Window XP Professional.
5. It is further admittedly the case of the CBI that Respondent K. K. Jha was share holder of M/s K. K. Software Solutions P. Ltd. whereas Virender Kumar, Pradeep Kumar and Ram Lal Piplani were its Directors. It has been alleged that the actual money invested in the aforesaid company was of accused K. K. Jha and Ram Lal Piplani and that decisions relating to purchase of softwares were taken only by K. K. Jha. It is further alleged that Ram Lal Piplani used to order in the name of M/s Kavita Computers for supplying softwares to M/s K. K. Solutions P. Ltd. but there is no evidence to show that counterfeit softwares were sold in the name of their respective companies. However, he has not been able to prove any record of sale and purchase made by the firm M/s Kavita Computers. It is further the case of the CBI that during searches two note books were recovered from the premises of coaccused which established business dealings with him, Ram Lal Piplani, Ravinder Singh and Kamlesh Jha. It is also alleged that these two note books also show that Rajesh Pachisia was procuring softwares purported to be MS softwares from Ravinder Singh mainly and was further selling to other accused persons. It was further revealed during investigation that Kapil Piplani S/o Ram Lal Piplani were working in M/s K. K. Software Solutions P. Ltd. as Stock Incharge though there is no evidence to suggest that he was actually involved in sale and purchase of counterfeit softwares. :5:
6. It is noteworthy that it is own case of the CBI, as borne out from Para 11 of the chargesheet that accused persons were carrying the business of counterfeit MS softwares in their individual capacity and there is no evidence to the effect that counterfeit software were sold in the name of accused companies.
7. On the basis of evidence collected during investigation, CBI chargesheeted the present Respondents along with other co accused for offence punishable under Section 120B r/w Section 411/482/486/489 IPC and Section 63 of the Copy Right Act, 1957 by Ravinder Singh, Rajesh Pachisia, Kishan Lal Pachisia, Kamlesh Jha, Ram Lal Piplani and Manmohan Chawla @ Titu and for substantive offence under Section 411/482/486/489 and 63 Copy Right Act, 1957 by Ravinder Singh, Rajesh Pachisia, Kishan Lal Pachisia, Kamlesh Jha, Ram Lal Piplani and substantive offences punishable under Section 411 IPC by Manmohan Chawla @ Titu.
8. After considering the material collected during the course of investigation and after hearing arguments advanced by Ld. Defence Counsels and Ld. Prosecutor for CBI. Ld. Trial Court vide impugned order dated 08.11.10 discharged both the above named Respondents holding that there is no incriminating evidence against them and both of them and they are liable to be discharged.
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9. The CBI, by filing the present revision petitions has thus challenged the said order discharging both the above named accused/Respondents and it has been contended that impugned order suffers from illegality and should be set aside.
10. Detailed arguments have been advanced before me by Ld. Prosecutor appearing for petitioner/CBI and by Ld. Counsels representing Respondents.
11. I have also carefully gone through the trial court record and the material collected by the Investigating Agency.
12. In so far as Respondent K. K. Jha is concerned, it is been contended by CBI/petitioner that Ld. Trial Court has ignored oral testimony of witnesses recorded under Section 161 CrPC including that of PW Ocean Talwar and Rajeev Kumar. Ld. SPP for CBI argued that as per PW Ocean Talwar accused/Respondent K. K. Jha was the real man who runs M/s K. K. Solutions P. Ltd and he was the authorized signatory to the bank accounts of the same.
13. My attention was also drawn to the statement of PW Praveen Kapoor who has stated that software purchase ordered by K. K. Jha. Similarly, PW Rajeev Kumar stated that purchase of stock is decided by Kamlesh Jha, owner of the company. Ld. APP thus argued :7: while relying on the statement of aforesaid PWs that counterfeit software recovered from the office of M/s K. K. Software P. Ltd. is directly related to Respondent K. K. Jha and Ld. Trial Court failed to take into account statements of the aforesaid Prosecution witnesses while discharging the Respondents.
14. On the other hand, it was pointed out by Ld. Counsel for Respondent that admittedly no counterfeit products were recovered from the premises mentioned at serial No. 613/614 as above. It is further stated that the recoveries effected from the office of M/s K. K. Software Solutions P. Ltd. cannot be connected to the Respondent inasmuch as, admittedly the Respondent was not director of M/s K. K. Software P. Ltd. at the relevant time. It was further contended that even as per the statement of PW Ocean Talwar, it is borne out that its is Ram Lal Piplani, Virender Kumar and Pradeep Kumar were the Directors who were looking after the day to day business of K. K. Software. Ld. Counsel for Respondent further argued that Respondent K. K. Jha was merely share holder and Ld. Trial Court has rightly held that he could not be fastened with the wrong of the Directors of M/s K. K. Software Solutions P. Ltd nor can be held vicariously liable for the acts of the said persons.
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15. I have considered the aforesaid arguments in the light of the following judgments cited before me and also relied upon by Ld. Trial Court while passing the impugned order viz:
(i) S. K. Alagh Vs State of UP & Ors. (2008) 2 SCC (Crl.) 686
(ii) Shobna Bhartia & Ors. Vs NCT of Delhi & Anrs. 2008 (1) JCC 327
(iii) R. Kalyani Vs Janak C. Mehta & Ors. 2009 (1) JCC 576
16. On going through the aforesaid judgment, I find that Ld. Trial Court has rightly held that in absence of M/s K. K. Software Solutions P. Ltd. being arrayed as an accused, Respondent Kamlesh Kumar Jha could not have been held liable for having committed alleged offences in his individual capacity. It is noteworthy that even as per statement of PW Ocean Talwar it was Ram Lal Pischia who was Director of M/s K. K. Software Solutions P. Ltd. and was looking after its day to day business. Further, the statement of Praveen Kumar who as per the CBIs own case had joined M/s K. K. Software P. Ltd. only 03 days before cannot be given much weightage.
17. It is also a matter of record that admittedly no recovery of any counterfeit software or counterfeit Certificate of Authentication has been effected from the residential premises of the Respondent. Rather, the recoveries of software effected from his residence were found to be :9: genuine software.
18. Ld. APP further contended that Ld. Trial Court erred in granting benefit for the Respondent on the ground that CBI has not chargesheeted M/s Nataraj Computers. It was argued that culpability of other cannot be said to be reduced merely because M/s Nataraj Computers was not arrayed as an accused by the CBI.
19. In this regard, I find that as per the own case of the CBI, the accused were allegedly obtaining Certificate of Authentication from M/s Nataraj Computers. In these circumstances, it was imperative for the Prosecution to chargesheet M/s Nataraj Computers and in absence thereof, I am inclined to accept that Ld. Trial Court rightly held that this is certainly lapse on the part of Investigating Agency.
20. During the course of arguments, Ld. APP also drew my attention to two note books D8 and D9 wherein at some place name "Kamlesh Jha/Kamal" had been mentioned. It is argued that D8 (K) and D9 (P) are an important piece of evidence which show the connection between the accused persons including Respondent K. K. Jha. It was argued that said two note books were recovered from co accused Rajesh Pachisia and it shows that Rajesh Pachisia was procuring the counterfeit software from accused Ravinder Singh and was further selling to other accused persons. Therefore, there is :10: sufficient evidence of criminal conspiracy available on record and for this purpose reliance was also placed by Ld. APP to Section 10 of the Indian Evidence Act.
21. On the other hand, Ld. Counsel for Respondent argued that this contention of the Prosecution was rightly rejected by Ld. Trial Court while placing reliance on the judgment of CBI Vs B. C. Shukla & Ors. AIR 1998 SC 1406. It was further contended that in view of the law laid down by Hon'ble Apex Court in Kehar Singh Vs State (Delhi Administration) 1988 SCC (Cri) 711 reliance cannot be placed on Section 10 of the Evidence Act in absence of any reasonable ground to believe that other accused persons including Respondent had conspired together.
22. I have considered the aforesaid arguments and have gone through the relevant statutory provisions and the case law cited before me. However, in this regard, I also find that in the light of law as laid down in Kehar Singh Vs State (Delhi Administration) (supra) and in absence of any reasonable ground to believe the existence of criminal conspiracy, no reliance can be placed upon the aforesaid note books. It is also noteworthy that Investigating Agency has failed to bring on record any material whatsoever to show that Respondent K. K. Jha had entered into any criminal conspiracy with the other accused persons to import to sel the same in Delhi as genuine.
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23. I am totally unable to subscribe by Ld. Prosecutor that since the other accused persons namely Rajesh, Krishan and Ram Lal have opted for plea bargaining and have been convicted, this strengthens the existence of criminal conspiracy for selling counterfeit software. This contention of the Revisionist cannot be said to be based on any legal principles by any stretch of imagination and is liable to be thrown out outrightly.
24. After considering the entire material on record and upon considering the arguments advanced before me, I find that impugned order, in so far as Respondent K. K. Jha is concerned, does not suffer from any illegality or infirmity requiring any interference whatsoever.
25. Now, coming to the case of Respondent Manmohan Chawla. The Chargesheet reveals that Respondent Manmohan Chawla was running his shop in the name and style of M/s Deeksha Multimedia G3/4, Ground Floor, Deepak Building, Nehru Place, New Delhi which was also one of the premises which was raided during the raid conducted on 04.3.05. Beside the aforesaid shop, his residence i.e. H. No. 418, Ist Floor, Prakash Mohalla, East of Kailash, New Delhi was also raided by CBI on 04.3.05. The recoveries effected from the aforesaid searches have been mentioned in column No. 5 to 8 in Para 3 of the chargesheet.
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26. It has been contended by Ld. Prosecutor representing CBI that during the search conducted on 04.3.05, counterfeit microsoft software and damaged certificate of authentication labels were recovered from Respondent Manmohan Chawla @ Titu. However, a bare perusal of chargesheet itself would reveal that as per the opinion regarding products recovered from the aforesaid premises of Respondent Manmohan Chawla @ Titu, all the said goods were found to be genuine as per the CBI itself, although as per the Prosecution case the covers in which said goods were kept were found to be damaged.
However, Ld. Trial Court has rightly held that once goods were held to be genuine, merely the fact that their containers/covers were found damaged cannot be held to be a ground to fasten the Respondent with the culpability of being in conspiracy with other co accused for selling counterfeit material, inasmuch as admittedly no counterfeit software was recovered from the premises connected with the Respondent.
27. In other words, after going through the record of the case, I find myself completely in agreement with submissions of Ld. Counsel for Respondent that there is no evidence whatsoever to indicate even prima facie that Respondent Manmohan Chawla @ Titu was also involved in selling of counterfeit Microsoft software to any of the person.
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28. I again find that the fact that other coaccused have opted for plea bargaining and have been convicted pursuant thereto can be said to be a sufficient ground for holding that there existed any criminal conspiracy between them and the present Respondent and the submissions of the Revisionist to this extent are absolutely baseless and are rejected.
29. Accordingly, on the basis of material on record, I find that there is no evidence whatsoever to establish the existence of any criminal conspiracy between the present Respondent and the other accused nor is there any evidence to establish the recovery of any counterfeit software from possession of Respondent Manmohan Chawla @ Titu. In these circumstances, Ld. Trial Court rightly discharged this Respondent also and there is no merit in the revision petition filed against Respondent Manmohan Chawla @ Titu.
30. On the basis of aforesaid observations and the material on record, I find that both the Revision petitions merit dismissal and there is no illegality or infirmity in the impugned order. The revision petitions being devoid of merits are hereby dismissed. Copy of this order be sent to Ld. Trial Court for information along with TCR. Both the Revision files be consigned to Record Room.
Announced in open court today on January 23, 2012 (Kaveri Baweja) ASJFTC (Central) Delhi