Delhi District Court
Judgment/State vs . Girdhari Lal Ors./ Fir ... on 4 August, 2009
IN THE COURT OF SH. DIG VINAY SINGH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE-03 (IPR), ROHINI, DELHI
In re:
State ...COMPLAINANT
VS.
GIRDHARI LAL ORS. ...ACCUSED
FIR NO.04/93
PS LAHORI GATE/IPR
U/S. 63 OF COPYRIGHT ACT, 1957 & 78,79 OF TRADE MARKS
AND MERCHANDISE ACT, 1958
DATE OF RESERVATION OF JUDGMENT: 04.08.2009
DATE OF PRONOUNCEMENT OF JUDGMENT: 04.08.2009
JUDGEMENT
(a) The serial no. of the case : 397/3.
(b) The date of commission of offence : 06.1.1993.
(c) The name of complainant : Ravi Prakash Gupta,
proprietor of M/s.
Vimpex Dye Chem
Pvt. Ltd., A-4, G.T.
Karnal Road, Indl.
Area, Delhi.
(d) The name, parentage, residence of accused: 1.Girdhari Lal Gupta s/o. Late Sh. Bhanu Ram Gupta, r/o. F-
64, Preet Vihar, Delhi.
JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 1 of 24 k
2. Ajay Gupta s/o.
Sh. Girdhari Lal Gupta r/o. F-64, Preet Vihar, Delhi.
3. Kamal Chand Jain s/o. Sh. Hira Lal Jain r/o. A-22,CC Colony, Pratap Bagh, Delhi.
4. Ravi Kumar Jain s/o. Sh. Kamal Chand Jain r/o. A-
22,CC Colony, Pratap Bagh, Delhi.
(e) The offence complained of/ proved : U/s.63 & 68A of Copyright Act, 1957 & 78,79 OF TRADE MARKS & MERCHANDISE ACT 1958.
(f) The plea of accused : Pleaded not guilty (g) The final order : All accused Acquitted (h) The date of such order : 04.08.2009.
(i) Brief statement of the reasons for the decision:-
1. Four accused namely Girdhari Lal Gupta, Ajay Kumar Gupta, Kamal Chand Jain and Ravi Kumar Jain were sent up for trial in this JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 2 of 24 k case for offences u/s.63 Copyright Act, 1957 & u/s.78 & 79 of Trade Marks and Merchandise Act, 1958.
2. Brief facts of this case are that M/s. Vimpex Dye Chem Pvt.
Ltd., filed a complaint with the Additional Commissioner of Police, Crime Branch, Delhi, dated 20/27.5.1992 in which the said complainant claimed to be the owner of trademark by the name of 'Sat Khatta' and the trademark 'Trishul'. The company claimed to be engaged in the business of manufacturing and marketing certain food preservatives and additives and other salt, acid etc., and primarily related to food products. The company named one Maxchem (India) Company, alleging that the said company was engaged in infringement of the trademark of complainant as well as the copyright of the complainant in the above mentioned products. Besides the said company, the complainant also named three persons namely no.1 Kamal Chand (owner of Kaushal Trading Corporation), no.2 Girdhari Lal & Sons and no.3 Bhag Chand Ajay Kumar as the persons who are so engaged in the infringement/copyright of the trademark of complainant company. Besides the above named trademark, the complainant claimed copyright in the artistic work in the corrugated boxes used for JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 3 of 24 k packing the said articles 'Sat Khatta'.
3. It is the case of prosecution that on the said complaint, a raiding party comprising of Inspector S.S. Sandhu, SI Anil Kapoor, ASI Risal Singh, Ct. Ram Kumar alongwith other police officials including police officials from local police station raided Tilak Bazaar, Delhi, area at about 2 pm. It is further claimed that at the instance of Ved Prakash Gupta, the Commercial Advisor of complainant company, premises of M/s. Kaushal Trading Company at premises no.214D, Katra Peran, Tilak Bazaar, Delhi, was searched where accused no.4 Ravi Kumar Jain was found present. From the said shop, five cartons and one plastic bag containing loose packets bearing trademark 'Nav Sat Khatta' were recovered which were bearing the name of M/s. Maxchem (India) Company. Those packets were containing some articles. It was identified by Mr. Ved Prakash Gupta as infringed product bearing falsified trademark and also infringed copyright of the complainant. Those articles were kept in two gunny bags and were sealed with the seal of MSG And was taken into police possession.
4. Thereafter, the adjoining premises no.213, Katra Peran, Tilak Bazaar, Delhi, of M/s. Girdhari Lal & Sons was also searched where JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 4 of 24 k Ajay Kumar Gupta s/o Girdhari Lal i.e. accused no.2 was present. On the identification of Mr. Ved Prakash Gupta, Commercial Advisor of the complainant, two cartons containing similar infringed articles and weighing about 21 KG were recovered which were identified by Ved Prakash Gupta as infringed. These articles were kept in one gunny bag and after sealing with the seal of MSG were taken into police possession. Thereafter, ruqqa was prepared and the present FIR was registered. It is further the case of prosecution that accused no.2 Ajay Kumar Gupta made disclosure statement and pursuant to his disclosure, premises no. H-13/A, Main Bazaar Road, Shakar Pur, Delhi, was raided from where 18,000 empty pouches of 'Nav Sat Khatta' which were infringed were recovered. The investigating agency claimed that accused no.3 Kamal Chand Jain was also involved in this case since he was in collusion and conspiracy with other accused and they were manufacturing these infringed articles for the purposes of sale. The investigating agency chargesheeted the four accused for the offences u/s. 63 of the Copyright Act, 1957 & u/s.78 & 79 Trade Marks and Merchandise Act, 1958, and the investigating agency also chargesheet the four accused for the offence u/s. 420 r/w section 120B of IPC.
JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 5 of 24 k
5. My Ld. Predecessor Court vide order dated 11.12.1997 ordered framing of charges against all the accused for the offences u/s. 63 of the Copyright Act, 1957 & u/s.78 & 79 Trade Marks and Merchandise Act, 1958. All the four accused pleaded not guilty and claimed trial to the said charges.
6. In support of its case, prosecution examined eight witnesses namely PW1 Ravi Prakash Gupta, PW2 Ved Prakash Gupta, PW3 Inspector Anil Kapoor, PW4 Satya Narain Sharma, PW5 SI Risal Singh, PW6 ASI Brijesh, PW7 Sanjay Sharma & PW8 H.P. Bhatt
7. All the incriminating evidence against all the four accused were put to them u/s.313 r/w section 281 Cr.P.C to which the accused persons generally denied and claimed that they have been falsely implicated. The reply of the four accused, to the incriminating evidence against them, was of absolute general denial. Initially, the accused persons opted to lead defence evidence, but subsequently without leading any defence evidence in their favour, they closed their defence evidence.
8. I have heard the Ld. APP for the State as well as Ld. Counsel Mr. Naresh C. Sharma, Adv. for all the four accused. I have also JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 6 of 24 k perused the written arguments/submissions.
9. Needless to say that in a criminal trial, burden of proving its case lies on the prosecution and it is quite heavy. It is for the prosecution to prove its case beyond all reasonable doubts and it is not for an accused to prove his defence. This legal principle is well settled now. In view of the said legal position let us examine the evidence to find out whether prosecution has met that requirement of proving its case beyond reasonable doubts.
10. Out of the eight prosecution witnesses as mentioned above PW-6 and 8 were formal witnesses.
PW6 ASI Brijesh Kumar was a Duty Officer and who registered the FIR and proved the same in Court as Ex. PW6/A. Similarly, PW8 H.P. Bhatt, Record Keeper, Union Bank of India proved that account no.17364 existed in the said bank Khari Baoli Branch in the name of Girdhari Lal & Sons. This witness is also formal since the occupancy of the premises in question by the accused was never in dispute in this case.
11. Besides the above two witnesses, the prosecution examined on Satya Narain Sharma as PW4. The testimony of this JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 7 of 24 k witness is absolutely of no help to the case of prosecution for the simple reason that this witness is not a witness of recovery from any of the four accused and that this witness deposed that he used to purchase and consume the product namely 'Sat Khatta' from Khari Baoli area and sometime in the year 1992, when he purchased that articles from Khari Baoli Market, he felt the same to be of substandard quality and the packing material was deceptively similar.
12. This witness did not depose that he purchased any such article from any of the four accused. Therefore, even if the testimony of this witness is treated as unrebutted, the witness has not thrown any light on the case of prosecution and against the accused.
13. Besides the above witnesses, the prosecution examined complainant Ravi Prakash Gupta, under whose signatures the complaint in question was moved and on the basis of which the present case was lodged after conducting certain raids. This witness turned hostile for the case of prosecution. The witness deposed that although he lodged complaint Ex. PW1/A, but he did not remember as to in which case he made the complaint. The witness was JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 8 of 24 k subjected to cross examination by Ld. APP for the State, but absolutely nothing could be brought out in his cross examination. When this witness was cross examined by the accused, the witness admitted that he is not conversant with the fact of this case and he signed this complaint Ex. PW1/A on the asking of his brother. Thus this witness was not aware of any fact of this case. The witness is not a witness of recovery from any of the accused, the witness did not identify any case property and the witness did not identify any of the accused, the witness is absolutely of no help to the case of prosecution. What is interesting is, this witness in the cross examination by the accused stated that he signed the complaint on the asking of his brother Ved Prakash Gupta, who was looking after the administration and sales etc. of the firm.
14. Said Ved Prakash Gupta was also examined as PW2. He was a vital witness to the case of prosecution as the prosecution claims that this witness Ved Prakash Gupta identified the shop of the accused from where infringed articles were recovered, but again this witness also turned hostile to the case of prosecution. He deposed that although he was a Commercial Advisor of the complainant company which was registered trademark owner of 'Sat Khatta' and JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 9 of 24 k 'Trishul' tradenames and he went to Crime Branch office alongwith sales marketing staff of his company, but, he stated that he did not visit any place from where recovery was effected and raid was conducted. He deposed that he remained in Crime Branch office throughout the time when raid was conducted by the police. The testimony of this witness strikes at the very root of the case of prosecution. Although, the prosecution banks upon the testimony of this witness as the person who witnessed the recovery and who identified and pointed out the shops of the accused but this witness did not support the case of prosecution at all and instead stated that he remained at Crime Branch office and did not visit any of the places. This witness was also subjected to cross examination by Ld. APP for the State and during cross examination, this witness admitted that in his complaint Ex. PW2/A, name of Kaushal Trading Co. run by accused Ravi Kumar Jain is mentioned.
15. Ld. APP for the State argued that the witness admitted his statement which is proved as Ex. PW2/A and, therefore, the statement of witness Ex. PW2/A ought to be looked into. The contention of Ld. APP for the State is absolutely misconceived. Section 145 of Indian Evidence Act read with section 162 of Cr.P.C JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 10 of 24 k clearly provides that previous statement of a witness cannot be put to any use except for the purposes for corroborating or contradicting the testimony of a witness given in the Court. Even if, the witness admitted his statement and it was exhibited as Ex. PW2/A, the same does not ipso facto becomes admissible in the evidence. At the most, this statement Ex. PW2/A could be used to confront or contradict the statement of this witness given before this Court and for no further purpose.
16. During cross examination by Ld. APP, the witness also admitted his signatures on the seizure memo Ex. PW2/B, which is a seizure memo regarding the recovery from premises no. 214D, from M/s. Kaushal Trading Company, Katra, Peran, Tilak Bazaar, Delhi, where as per the case of prosecution, accused no.4 Ravi Kumar Jain was present. In the next breath, this witness stated that he signed this document in a hasty manner. When this witness admitted his signatures on the seizure memo Ex. PW2/B, the Ld. Prosecutor for the State did not suggest this witness that recovery as mentioned in Ex. PW2/B was effected in the presence of this witness or not. All that was mentioned is that as per Ex. PW2/B, certain cartons of 'Nav Sat Khatta' and one plastic bag were recovered from the said JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 11 of 24 k premises. Again a seizure memo is a document which is prepared by the police during investigation and the contents of the document can at the most be used to contradict or confront a witness in terms of section 162 Cr.P.C. Merely by admitting signature on the said document, the facts contained therein will not stand proved unless it is specifically deposed by the witness that such a recovery was effected from the premises in his presence or which he witnessed himself. Similarly, the witness identified his signatures on Ex. PW2/C and Ex. PW2/E, which are recovery memos of two other premises, but again this witness was never suggested nor the witness ever admitted in his testimony that any such recovery was effected in his presence. This witness in the cross examination by Ld. APP also exhibited one genuine pouch as Ex. PW2/H and one infringed pouch as Ex. PW2/J, but again nowhere this witness states that the infringed pouch Ex. PW2/J was recovered from the possession of any of the four accused. Rather in the cross examination by the accused this witness stated that he did not accompany the police to the premises of the accused and instead his sales staff accompanied the police to the place where recoveries were effected. The witness states that he kept on sitting in the office of Crime Branch and did JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 12 of 24 k not visit the premises of M/s. Kaushal Trading Company or the premises of M/s. Girdhari Lal & Sons or the premises from where alleged recoveries were effected. He stated that he signed the memos Ex. PW2/B, PW2/C and PW2/E at the Crime Branch office in the presence of his sales staff and police officials. Once this witness admits that he was not a witness of recovery himself from any of the premises, the admission of a witness of his signatures on the recovery memos becomes absolutely useless.
17. The prosecution claims that it is this witness, who witnessed the recovery from the premises whereas this witness did not support it and he rather stated that he did not witness any such recoveries. If that be the case, then the testimony of this witness has to be taken out from the evidence led by the prosecution. It may be mentioned here that allegedly certain sale staff officials of the complainant were witnesses of recoveries, but none of them is signatory of any of the recovery memos and none of them has been examined by the prosecution in support of its case. The prosecution made only two witnesses namely Ravi Prakash Gupta and Ved Prakash Gupta, on the recovery memos but both of them did not support the case of prosecution at all.
JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 13 of 24 k
8. PW3 Inspector Anil Kapoor was the witness of disclosure statement of accused no.2 Ajay Kumar Gupta which is Ex. PW2/D and, allegedly as per which disclosure, recovery was effected from Shakar Pur Main Bazaar, Delhi, vide memo Ex. PW2/E. In the cross examination, this witness also admitted that despite availability of independent public witnesses, no one was asked to join the raid. The case property allegedly recovered pursuant to memo Ex. PW2/E after the disclosure Ex. PW2/D was not even shown to this witness during his examination in chief to get it identified that the case property produced in the Court was the same case property which was recovered at the instance of accused no.2 Ajay Kumar Gupta from his premises no. H1-3A, Shakur Pur, Main Bazaar, Delhi.
19. Prosecution also examined PW5 SI Risal Singh, who also allegedly joined the investigation of this case and deposed that he was a witness of recovery from the three places vide seizure memo Ex. PW2/B and PW2/C. This witness also in the cross examination admitted that none of the public witnesses or labourers who were present at the premises and the servants were asked to become witness. The case property allegedly recovered from the accused were shown to the witness SI Risal Singh, but interestingly three JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 14 of 24 k bags were produced in the Court out of which two bags were not having any seals whatsoever and one bag was although having seal but the bag was otherwise in torn condition. Thus even that the case property was not kept in safe custody till the time when it was proved in the Court. The case property which was kept without seals or inside the bags which were absolutely in torn condition means that anything can be taken out or kept inside. It thereby causes a serious prejudice to the defence of the accused and the accused can always take up a defence that the case property allegedly produced was not the same property which was allegedly recovered. Again this witness PW5 deposed that no independent witness or laborers or servant who was there were asked to become witness. This again causes a serious doubt about the case of prosecution.
20. The last witness who was examined by the prosecution is PW7 Sanjay Sharma. The witness is more or less a formal witness, who deposed that they designed the artistic work on the pouches of 'Sat Khatta' trademark belonging to the complainant. By the testimony of this witness, the prosecution intended to prove a fact that there existed a copyright in favour of the complainant company since the artistic work on the pouches were developed by PW7 and JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 15 of 24 k which was used by the complainant company. For reasons mentioned above and hereinafter, the testimony of this witness is of no importance at all since the discussion as held above clearly indicates that there are very serious doubt about the recovery on articles alleged by the prosecution from the accused. Those recoveries ought to have been proved by the prosecution beyond reasonable doubts. The discussion held as above raises very serious doubts about the recoveries.
21. Even otherwise, if for the sake of arguments, it is believed that the recovery was effected from the accused as claimed by the prosecution, an artistic work on the pouches containing 'Sat Khatta' cannot be claimed to be having copyright in favour of the complainant. A copyright subsist in a literary, dramatic, musical or an artistic work besides sound recordings and cinematograph films. In order to claim a work to be an artistic work, it has to be shown that some amount of labour was spent in developing that artistic work or in creating that artistic work. The testimony of PW7 nowhere mentions as to of what artistic work was there on which some amount of labour was spent. Secondly, who developed that artistic work is nowhere mentioned. All that is deposed by PW7 is that he JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 16 of 24 k prepared a certificate in favour of the complainant certifying that they were inventor and designer of the artistic work. In order to claim a copyright by the author of an artistic work has to be first identified and the said author must claim copyright in the artistic work. Copyright by a third party can be claimed only when the said author assigns copyright in the artistic work in favour of the third party. Firstly, this point is not proved. Even if, for the sake of arguments, it is believed that PW7 himself was the author of the artistic work, still in the facts and circumstances of the present case, copyright will not subsist an article produced by way of mechanical process through the means of printing, such as a pouch, will not come within the purview of an artistic work.
22. In AIR 1986 DELHI 444 "Camlin Private Ltd. v. M/s. National Pencil Industries" The plaintiffs claim was that it is the owner of copyright in the floral design that appears on its printed cartons/boxes and that the defendant's cartons bearing the word "National Elora" in connection with their pencils are passing off their goods as goods of the plaintiff. The plaintiff's trade mark was in respect of fountain pens, pencils etc. in terms of certificate of registration in two words "Camlin Flora" and the carton was a JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 17 of 24 k machine printed carton made of some kind of paper board.
23. It was Held by hon,ble Delhi High Court that the suit for infringement of alleged copyright or the trade mark or for the alleged passing off cannot be maintained. The use of the word "National Elora" on the cartons of the defendants do not give any cause of action to the plaintiffs as they do not infringe the alleged trade mark "Camlin Flora". (Paras 59, 60) it was also held that In order to be covered by the Copyright Law, any work in which copyright is claimed must originate from the author who must have expended his skill and labour and the work must be something which has not been copied by the author from any one else. It is only then that it can be said that it has "originated" from the author. (Para 25). It was held that , In the present case, the printed cartons/boxes appear to be mechanically reproduced one. It cannot be said that any skill or labour has been expended upon the allegedly artistic carton, as the same has been produced by mechanical actions of a printing machine, and not by skill and labour having been expended upon them by any natural person. Further, the boxes/cartons in question are not "engraving" as contained in S.2(i). Any print obtained from either on offset printing process or by JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 18 of 24 k a letter press or in combination of the various printing process including silk printing process cannot amount to an engraving. (Paras 26, 28) The similarity in the alphabets F and R and the alphabets 'E' and 'R' in two cartons is not sufficient to establish an attempt to pass off of the defendants' carton as the plaintiffs' carton, because the alphabets occupied only a small area of the carton. Pencils are used by artists, and in this case mere phonetics similarity are not so obvious so as to pass off one for the other. The defendants seek to identify their pencils with artists, and the plaintiff with botanists. Further the two cartons have different colour combinations, and there are differences in the colour and in the composition on the printed matter. On the visual examination of the two cartons, also there is no likelihood of confusion.
24. The same judgment applies to the present case as pouches which are prepared mechanically and printed mechanically, no artistic work can be claimed.
25. Even otherwise, as mentioned above recovery is not proved in this case. The reasons for the same are that PW1 andPW2, the two independent witnesses, who allegedly witnessed the recovery, did not support the case of prosecution at all. Both of them JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 19 of 24 k turned hostile and stated that recovery was not effected in their presence. No other independent witness is signatory to the recovery memos. Section 100(4) Cr.P.C specifically states that whenever any search and seizure is made, the IO shall join at least two local respectable inhabitants of the locality where the search is to be made. No such local respectable inhabitant were even requested to become witness as is clear from the cross examination. PW1 & PW2 cannot be called local respectable inhabitant since they were from the complainant company. Subsection 4 of section 100 Cr.P.C gives liberty to an Investigating Officer to join witnesses from other locality only when the local respectable inhabitant are either not available or they refuse to become witnesses. In the present case, it is not even the case of prosecution that local respectable inhabitants were not available nor is their case that they were so requested and they refused. Rather the case of prosecution is that they were not even requested. The word used in section 100 Cr.P.C is "shall" which makes it mandatory.
26. Besides the above facts, there is absolute non-compliance of section 64 of the Copyright Act, 1957, which provides that immediately on recovery of infringed articles, the same shall be JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 20 of 24 k produced as soon as possible before a Class I Magistrate. Again the word used in the section is "shall", which makes it mandatory. The case property was not produced before any Class I Magistrate immediately after seizure. This fact coupled with the fact of not supporting the case of prosecution by PW1 and PW2, the alleged sole eyewitnesses demolishes the case of prosecution, more particularly when the case property was produced in the Court was not kept in properly sealed condition till the time it was proved in evidence.
27. Ld. counsel for the accused placed reliance upon the case of Brindavan Sahu Vs. B. Rajender Subodhi, AIR 1986, Orissa, 210, wherein it was was held that unless there is a registration of copyright of the Registrar of copyright, no case of infringement can be made out.
28. Although, in view of my above discussion and non proving of recovery from the accused, this contention becomes useless and it would only be an academic discussion, but still it would be worth mentioning that the contention of Ld. Counsel for the accused is absolutely mis-founded. The Copyright Act, 1957 nowhere makes it mandatory that a copyright should be registered before any right is JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 21 of 24 k claimed. All that the Act requires is that there should be a copyright subsisting within the meaning of said Act and the author of the same or the assignee should claim copyright. The Act does not require that the copyright should be mandatorily registered before any right can be claimed by a person.
29. In AIR 1984 DELHI 265 "Glaxo Operations UK Ltd. v. Samrat Pharmaceuticals" it was held that Registration of copyright is not mandatory but discretionary. Copyright exists whether registration is done or not. Person who gets earlier registration can be presumed to be author or original creator. (Para 22)
30. Similarly in 1996 CRI. L. J. 290 "Zahir Ahmed v. Azam Khan" in para 26 it is held that;
" I find nothing to differ from the views so taken in the aforesaid decisions by the different High Courts. The Indian Copyright Act, 1914 did not make any provision for Registration of Copyrights. The provision for Registration of Copyright has been made in Ss. 44 and 45 of the Copyright Act, 1957. The object behind the enactment of S. 44 of the said Act was not to make registration compulsory or mandatory for the purpose of enforcement of copyright. An option was only provided thereunder. It is, therefore, JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 22 of 24 k not obligatory for an author to get the copyright registered under S. 44 of the said Act for the purpose of acquiring rights conferred by it. As already indicated above, registration only raises a presumption that the person whose name is entered in the Register of Copyrights under S. 45 of the Act is the actual author. Section 48 of the aforesaid Act provides, as already indicated above, that the registration of copyright shall be prima facie evidence of the particulars entered therein and shall be admissible in evidence in all Courts without further proof for production of the originals. If the legislature intended to make the requirement of registration mandatory, the language of S. 44 would invariably have been different. The same could have been on the lines of S. 69 of the Partnership Act. But there is no provision in the Act depriving an author of the rights conferred by the aforesaid Act on account of non-registration of the copyright."
31. As mentioned above, there is serious reasonable doubts about the genuineness of the case of prosecution and, therefore, benefit ought to go to the accused. All the four accused are acquitted of the charges. Surety bond and personal bond, of accused persons stand cancelled. Their sureties are discharged. JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 23 of 24 k Endorsement, if any on the documents stand cancelled. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 4th August, 2009.
(DIGVINAY SINGH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-03 IPR, ROHINI, DELHI JUDGMENT/STATE VS. GIRDHARI LAL ORS./ FIR NO.04/93/U.S.63 of Copyright Act, 1957 & 78, 79 OF TMM ACT, `958/ ACQUITTED/04.8.2009 /Page 24 of 24 k