Delhi District Court
Criminal Case/155/2001 on 4 July, 2012
1
IN THE COURT OF MS. SMITA GARG, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE02, NORTH, TIS HAZARI COURT,
DELHI
FIR No. 155/01
P.SLahori Gate
U/s 63/68A Copyright Act
ID No. 02401R0152102002
JUDGMENT
1 S. No. of the Case : 114/CB/02 2 Date of commission : 14.04.2001 of the offence 3 Name of the Complainant. : Shri Anil Malhotra 4 Name, parentage and : Amit Kumar address of the accused S/o Shri V.P. Shrivastava R/o LIGO127, Shastri Nagar, Garakh Nath, Gorakh Pur, U.P. 5 . Offence complained or : U/s 63/68A Copyright Act proved 6 Plea of the accused : Not guilty 7 Date of reserving judgment : Not reserved 8 Final order : Acquitted 9 Date of judgment : 04.07.2012 Brief Reasons For Such Decision: 1 Accused Amit Kumar S/o Shri V.P. Shrivastava has been
charge sheeted by P.S Crime Branch for the commission of offences under Section 63/68A Copy Right Act, 1957. 2 The case of the prosecution is that on 14.04.2001, a complaint was received from Shri Anil Malhotra, Authorized Representative of Malhotra Copyright Protection Agency (P) Ltd.
FIR No. 155/01 P.S Lahori Gate 2 regarding the infringement of copyright of different Hindi Films. In the complaint, he specifically stated that a person staying in Room No. 4 of Star Guest House, Katra Barian, Fateh Puri, Delhi was in possession of pirated VCDs of film Jodi No. 1. On the receiving of the complaint, a raiding party consisting of SI Virender Singh, Ct. Subhash Chand, H.Ct Attar Singh, Ct. Ram Babu and Ct. Naresh alongwith the complainant under the supervision of Insp. D.P. Joshi was formed. The said raiding party reached at Star Guest House, Fateh Puri at about 07:15 AM and after disclosing the identify and purpose of visit to Shri Ram Chander i.e the attendant of the Guest House, search of room no. 4 was conducted in presence of the accused Amit Kumar. During the search, a raxine bag containing 790 pirated VCDs in 12 bundles of Hindi film Jodi No. 1 and 400 pirated inlay cards of the said film were recovered. The recovered VCDs were not having the mandatory details required U/s 52 A of Copyright Act. The accused failed to produce any valid authority/document for possessing the VCDs and inlay cards. All the pirated VCDs were taken in possession and the FIR was got registered. After the completion of investigation, the charge sheet was filed.
3 After supply of the copy of charge sheet, charge for the commission of offences under Section 63/68A Copy Right Act, 1957 was framed against the accused on 07.10.2002 to which he pleaded not guilty and claimed trial.
4 In support of its case, the prosecution has examined four FIR No. 155/01 P.S Lahori Gate 3 witnesses.
PW1 Anil Malhotra is the complainant. He has proved the complaint dated 14.04.2001 as Ex. PW1/A, seizure memo of pirated 790 VCDs and 400 inlay cards as Ex. PW1/B, personal search memo of the accused as Ex. PW1/C and the copy of power of attorney executed in his favour by M/s Time Films International as Ex. PW1/D PW2 H.Ct. Shubh Ram is the duty officer. He has proved the copy of FIR No. 155/01 as Ex. PW2/A and the endorsement made by him on the complaint Ex. PW1/A. PW3 Ct. Subhash Chand was the member of raiding party. He deposed that on 14.04.2001, a complaint was received from Shri Anil Malhotra and on receiving the same, a raiding party was formed. The raiding party reached at Fatehpuri where 45 public persons were asked to join the investigation but none agreed. Without wasting time, the raiding party reached Star Guest House and after informing the attendant, a raid was conducted at Room No. 4 of the Guest House from where the accused was apprehended with a raxine bag containing 790 pirated VCDs of Hindi film Jodi No. 1 and 400 pirated inlay cards of the said film. The recovered VCDs and inlay card were kept in a parcel and sealed with the seal of DG and taken in possession vide memo Ex. PW1/B. He further deposed that IO prepared the rukka and handed it over to him for getting the case registered. He identified the case property i.e 790 pirated VCDs, 400 inlay cards and bag FIR No. 155/01 P.S Lahori Gate 4 containing the VCDs and inlay cards recovered from the accused as Ex. P1 to Ex. P3 respectively.
PW4 SI Virender Singh is the investigating officer. He deposed on the same lines as that of PW3 Ct. Subhash Chand. He has proved the rukka as Ex. PW4/A, arrest memo of the accused as Ex. PW4/B and body inspection memo of the accused as Ex. PW4/C. The prosecution evidence was closed by the court on 16.12.2011.
5 The statement of accused under Section 313 CrPC was recorded on 23.04.2012 wherein all the incriminating evidence on record and documents were put to him to which his stand was of general denial. He stated that he was falsely implicated in the present case by the police officials and no recovery was effected from him. However, he chose not to lead any evidence in his defence.
6 I have heard the Ld. APP for state and the counsel for accused. I have also perused the record.
7 The Ld. APP for state has argued that since all the witnesses have supported the case of the prosecution, the guilt of the accused has been proved beyond reasonable doubt and therefore, he is liable to be convicted for the offences under 63/68A of Copyright Act. On the other hand, the counsel for accused has contended that since no recovery has been effected from the accused and the accused has been falsely implicated by FIR No. 155/01 P.S Lahori Gate 5 the police officials, he deserves acquittal. 8 The genesis of the present prosecution is the complaint dated 14.04.2001 (Ex. PW1/A) received from Shri Anil Malhotra, Authorized Representative of Malhotra Copyright Protection Agency (P) Ltd. regarding the infringement of copyright of different Hindi Films. As per the case of the prosecution, on receiving the said complaint, a raiding party was constituted and a raid was conducted at Room No. 4 of Star Guest House, Fateh Puri from where the accused was apprehended and from his possession a raxine bag containing 790 VCDs in 12 bundles of Hindi film Jodi No. 1 and 400 inlay cards of the said film were recovered which were found to be pirated. In his testimony, PW4 SI Virender Singh has deposed that all the recovered VCDs as well as inlay cards were identified to be pirated by the Authorized Representative of the company i.e Shri Anil Malhotra. Thus the sole basis on which it was concluded that the recovered VCDs were pirated was the opinion of the complainant. It is note worthy that the complainant Shri Anil Malhotra who has been examined as PW1 by the prosecution has admitted in his cross examination that he neither had diploma nor any technical education for distinguishing/identifying the cassettes/VCDs which are pirated. If so, the identification of the VCDs allegedly recovered from the accused as pirated on the basis of opinion of the complainant can not be accepted as concrete proof.
According to the prosecution, all the VCDs and inlay FIR No. 155/01 P.S Lahori Gate 6 cards alongwith the bag recovered from the accused were kept in a pullanda which was sealed with the seal of DG and was seized vide seizure memo Ex. PW1/B. PW1 Anil Malhotra has categorically admitted in his cross examination that neither any identification mark nor any serial number was written either on the inlay cards or the VCDs at the time of their recovery. When the case property was produced in the court during the course of trial, it was found that the same was unsealed. Though the prosecution witnesses have claimed that the case property produced in the court was the same which was recovered from the accused but the said claim can not be sustained in the absence of any identification mark on the VCDs and the condition in which they were produced. Further, the possibility of tempering with the case property also can not be ruled out.
Apart from the above, all the prosecution witnesses have stated that the public persons were asked to join the raiding party but they refused to do so and left the spot within telling their names and addresses. The above explanation for non joinder of public persons does not inspire confidence especially when no notice was served upon them by the IO for refusing to join the investigation. Further, the raid in question was conducted at Star Guest House by the raiding party after informing the attendant of the said Guest House, Shri Ram Chander. The said Ram Chander was the only independent witnesses of recovery cited by the prosecution. Despite sufficient opportunities, the prosecution FIR No. 155/01 P.S Lahori Gate 7 failed to procure the presence of the said witness and examine him in support of its case. Hence, the alleged recovery of VCDs and inlay cards from the accused also becomes doubtful.
Considering the above, the chain of evidence against the accused appears to be incomplete. In the light of above discussion, the prosecution has miserably failed to prove its case against the accused Amit Kumar. Accused Amit Kumar is, accordingly, acquitted of the charge for the commission of offences under Section 63/68A of Copy Right Act, 1957. The personal bond and surety bond furnished on behalf of the accused Amit Kumar on 19.04.2001 shall remain in force for a period of six months for the purpose of Section 437A CrPC. In case, no appeal is preferred against the acquittal of the accused within the above said period, the personal bond and the surety bond shall stand discharged automatically.
File be consigned to record room.
Announced in the Open Court (Smita Garg) on 04.07.2012 ACMM02/North/Delhi FIR No. 155/01 P.S Lahori Gate 8 FIR No. 155/01 P.S Lahori Gate 04.07.2012 Pr. APP for state. Accused present on bail with counsel. Final arguments heard.
Vide separate judgment, accused Amit Kumar has been acquitted of the charge for the commission of offences under Section 63/68A of Copy Right Act, 1957. The personal bond and surety bond furnished on behalf of the accused Amit Kumar on 19.04.2001 shall remain in force for a period of six months for the purpose of Section 437A CrPC. In case, no appeal is preferred against the acquittal of the accused within the above said period, the personal bond and the surety bond shall stand discharged automatically.
File be consigned to record room.
(Smita Garg) ACMM02/North/Delhi 04.07.2012 FIR No. 155/01 P.S Lahori Gate