Bangalore District Court
B.S. Sudhakar Pi vs Shahid Khan on 17 January, 2024
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KABC030367052021
Digitally signed
by R MAHESHA
R Date:
MAHESHA 2024.01.17
17:59:46 +0530
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU.
Dated this the 17 th day of January 2024
Present : Sri.R.Mahesha.
B.A.L., LL.B.,
IX Addl.C.M.M., Bengaluru.
JUDGMENT
1.C.C.No. 12832/2021
2.Date of offence 12.11.2019
3.Complainant State by Bommanahalli Police
Station.
4.Accused Naveed M S/o.Mohammad Eeesa
R/No.16/17, Kaveri Nagar,
Bommanahalli, Bengaluru.
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5. Offences U/Sec.51(1) (B), 63 of Copyright
complained of Act.
6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted.
8.Date of Order 17-01-2024.
The Police Sub-Inspector of Bommanahalli Police
Station, Bengaluru has filed this charge sheet against the accused for the offence punishable U/Sec.51(1)(B), 63 of Copyright Act.
2. The brief facts of the prosecution case is that, on 12/11/2019 at about 3.00 pm within the limits of Bommanahalli Police Station, situated at No.27, K N K Fashions, 6th Main road, Kaveri Nagar, Kodichikkanahalli road, Bommanahalli, Bengaluru, complainant - Dr.B S 3 Sudhakar Police Inspector got information that the accused person was manufacturing of spurious/counterfeit garments of reputed companies i.e. U S Polo, ASSN, Pepe Jeans London etc without obtaining any permission from the CW.5 company and mis-utilized the same without obtaining any permission from the CW.5 and were selling the same to the public and cheated the company and also public. Hence, CW.1 lodged first information. The Station House Officer registered a case in Cr No.279/2019 for the offences punishable u/Sec.51(1)(B), 63 of Copyright Act, and submitted First Information Report to this Court. After investigation, Police Inspector of Bommanahalli Police Station filed charge sheet for the said offences punishable u/Sec.51(1)(B), 63 of Copyright Act and Sec.420 of IPC against the accused. Hence, he has committed the alleged offences.
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3. Accused is on bail. On receipt of charge sheet, this court took the cognizance of the alleged offences and furnished copy of the prosecution papers to the accused. After hearing on charge, this Court has framed charge for the offences punishable U/Sec.51(1)(B), 63 of Copyright Act and Sec.420 of IPC for which accused pleaded not guilty and claimed to be tried.
4. The prosecution, in order to prove its case, has examined 7 witnesses as PW.1 to 7 and got marked documents at Ex.P.1 to 9 and closed the side of the prosecution evidence, and Statements u/Sec.313 of Cr.P.C. recorded, read over and explained in the vernacular language of the accused, wherein accused has denied the incriminating circumstances appeared against 5 him as false and did not choose to lead defence evidence. As such, the matter was posted for arguments.
5. I have heard the arguments on both sides.
6. The points that arise for my consideration are as under:
(1) Whether the prosecution proves beyond reasonable doubt that on 12/11/2019 at about 3.00 pm within the limits of Bommanahalli Police Station, situated at No.27, K N K Fashions, 6th Main road, Kaveri Nagar, Kodichikkanahalli road, Bommanahalli, Bengaluru, complainant - Dr.B S Sudhakar Police Inspector got information that the accused person was manufacturing of spurious/counterfeit garments of reputed companies i.e. U S Polo, ASSN, Pepe Jeans London etc without obtaining any permission from the CW.5 company and mis-utilized the same without obtaining any permission from the CW.5 and were selling the same to the public and cheated the company and also public and thereby committed an offences punishable u/Sec.51(1)(B), 63 of Copyright Act and Sec.420 of IPC ?
2 ) What order ?
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7. My findings to the above points are as under:
Point No.1 : In the Negative, Point No.2 : As per final order, for the following:
REASONS
8. Point No.1 :- It is well settled that in a criminal case the entire burden of proof rests upon the prosecution and the accused need to prove nothing. Suffice for the accused to create doubt about the case of the prosecution and the reliability of the witnesses for the prosecution.
9. The main allegation of the prosecution is that on 12/11/2019 at about 3.00 pm within the limits of Bommanahalli Police Station, situated at No.27, K N K Fashions, 6th Main road, Kaveri Nagar, Kodichikkanahalli road, Bommanahalli, Bengaluru, complainant - Dr.B S Sudhakar Police Inspector got information that the 7 accused person was manufacturing of spurious/counterfeit garments of reputed companies i.e. U S Polo, ASSN, Pepe Jeans London etc without obtaining any permission from the CW.5 company and mis-utilized the same without obtaining any permission from the CW.5 and were selling the same to the public and cheated the company and also public. As already stated supra, the prosecution has examined 7 witnesses as PW.1 to 7 and documents got marked as Ex.P.1 to 9.
10. The prosecution has been examined CW.6 as PW.1 and CW.7 as PW.2. They being panch witnesses. They specifically testified before this Court that they does not know the accused and they did not work with accused and they does not know KNK Fashions garments and they did not know the contents of this case. 8
11. The prosecution has been examined CW.10 as PW.3 and CW.9 as PW.4. They being police officers. They specifically testified before this Court that on 12/11/2019 they accompanied with CW.1 and CW.12 and visited the shop of accused and CW.12 asked the documents with the accused and accused did not produced any documents and were selling counterfeit garments of reputed companies and CW.12 drawn panchanama.
12. The prosecution has been examined CW.13 as PW.5. He being partial Investigating Officer of this case. He specifically testified before this Court that on 10/3/2021 he received case papers from CW.12 and verified the case papers and after completion of investigation filed charge sheet against the accused. 9
13. The prosecution has been examined CW.1 as PW.6. He being complainant and Investigation Officer of this case. He specifically testified before this Court that on on 12/11/2019 situated at No.27, K N K Fashions, 6 th Main road, Kaveri Nagar, Kodichikkanahalli road, Bommanahalli, Bengaluru, he got information that the accused person was manufacturing of spurious/counterfeit garments of reputed companies i.e. U S Polo, ASSN, Pepe Jeans London etc without obtaining any permission from the CW.5 company and mis-utilized the same without obtaining any permission from the CW.5 and were selling the same to the public and cheated the company and also public. He further deposed that he visited the spot and seized the garments and filed complaint against the accused. 10
14. The prosecution has been examined CW.5 as PW.7. She specifically testified before this Court that during the year 2018 she worked in EIPR Legal Department and on 15/12/2019 she received one sealed cover from CW.12 and she verified the garmen19 and gave report to CW.12.
15. On perusal of oral and documentary evidence it appears that as per the instructions given by ACP CCB F & M Cell, N T Pet, Bengaluru, he handed over or shared information received from credible informants and CW.1 proceeded to K N K Fashion NO.27, 6 th Main road, Cauvery Nagar, Kodi Chikkanahalli road, Bommanahalli, Bengaluru - 68 and he found in the said shop he produced reputed companies i.e. US Polo ASSN, PEPE JEANS LONDON, HACKET LONDON, being human, United Colours of Benetton, Calvin Klein, Zarman he 11 produced counterfeit shirts, pants and jeans pants and stored in the said shop. Therefore, CW.1 gave FIS before SHO of Bommanahalli police station. Accordingly, the SHO of Bommanahalli police have registered FIR for the offence punishable u/Sec.51(1)(B), 63 of copyright act. Further it can seen from prosecution papers CW.12 and other police officer and 2 panchas after criminal case registered against the accused proceeded to above stated shop and found counterfeit garments of reputed companies i.e. US Polo ASSN, PEPE JEANS LONDON, HACKET LONDON, beinghuman, United Colours of Benetton, Calvin Klein, Zarman he produced counterfeit shirts, pants and jeans pants and seized by drawing seizure panchanama i.e. as per Ex.P.3. After thorough investigation made by Investigation Officers and finally CW.13 has submitted charge sheet against the accused 12 by name Sahid Khan S/o.Nasarulla Khan. It is the case of the prosecution that the accused is the owner of KN K Fashion NO.27, 6th Main road, Cauvery Nagar, Kodi Chikkanahalli road, Bommanahalli, Bengaluru - 68. The accused has been produced and stored counterfeit garments in his shop. In order to substantiate above facts the prosecution has not produced any documents to show accused is the owner of K N K Fashion shop and he produced in his shop by using machineries counterfeit garments of reputed companies. Further it is relevant to note that in order to bring home the guilt of the accused the prosecution has cited CW.1 to CW.13, out of which the prosecution has been able to examined PW.1 to 7 and got marked some documents as Ex.P.1 to 9. It is the case of the prosecution that CW.6 and 7 are being workers in K N K Fashions Garments at the time of raid conducted 13 by police officers they were present in the said shops and they made 161 Statement against accused before Investigation Officer. But CW.6 and 7 are examined as PW.1 and 2 they deposed before this Court that they does not know accused and no point of time they were not working under accused and they does not know who is the owner of K N K Fashions Garments and they does not gave any statements before police officers. They further submitted before this Court that they does not know any facts of this case. The learned Sr.APP has treated the said witnesses as a hostile witnesses and cross- examined them. But nothing worth has been elicited from them to support the case of the prosecution. Further it is relevant to note that CW.1, 9, 10 they being police officers and as per the instructions of ACP CCB F & M on 12/11/2019 they went to the K N K Fashions 14 Garments and found 5 persons in the said garments and on being enquired by them it is bring to their knowledge accused is the owner of the said garments after detailed inspection of the said building they found counterfeit garments of reputed companies. Therefore, CW.12 drawn Ex.P.3 in the shop in the presence of 2 panchas i.e. CW. 2 and 3. After that they came back with seized articles. In order to substantiate the above facts the prosecution has examined CW.1, 9 and 10 as PW.3, 4 and 6 they reiterated same similar facts which is stated in Ex.P.1 and 3. But the prosecution has not examined private independent witnesses to Ex.P.3 i.e. CW.2 and 3. Unless police officers testimony there is no independent witnesses testimony to prove contents of Ex.P.3 and alleged recovery made by CW.12 from the possession of accused garments. Further this Court meticulously 15 appreciate cross-examination of PW.3 he clearly admitted that the said alleged raid conducted by CW.12 the said building consist of 3 stores but he is not aware who is the owner of the said garments and he is also not aware at the time of raid or afterwards CW.12 took documents pertains to ownership of the said garments. Further it is elicited in his cross-examination that Ex.P.3 typed by one Harish. Further he admitted he does not know the actual measurement of seized garments and colours of garments. The panchas are called by Investigation Officer at spot and he does not know does panchas are local or some other place. Further he admitted in cross- examination that in Ex.P.3 they mentioned each store schedule but they did not mentioned entire building schedule. Further he expressed his inability to say how much garments of which company it could not possible to 16 say without seeing the documents. Further this Court appreciate cross-examination of CW.1 / PW.6 it appears that he personally visited the said shop but he did not purchased any garments from said shop. Further he admitted that prima-facie the garments appears to be duplicate but he does not tally original garments with the garments which is stored in the said shop. Further he expressed his inability to say actual colours of the said garments. Further it is relevant to note that the prosecution has been examined CW.9 as PW.4 on 14/12/2022 and on the same day the counsel for the accused seeking cross-examination of pw.4 but this Court took prayer of learned accused advocate is rejected and cross of pw.4 is taken as nil on the same day. Further It is relevant to note that on 25/7/2022 the accused has filed recall application u/Sec.311 of Cr.P.C. 17 to recall pw.3 and 4 for the purpose of cross-examination. After heard learned Sr.APP this Court allowed the said application by imposed cost of Rs.1,000/-, accused has complied order dated 25/7/2023 and this Court again issued process of summons witness warrants and proclamation against PW.4. PW.4 being police officer he did not turned up before this Court. Therefore, this Court took prayer of learned Sr.APP rejected and evidence of pw.4 discard as not tender for cross-examination and pw.4 dropped out vide order dated 7/12/2023. Despite took coercive steps against CW.1 to 4, 8, 11 and 12 they failed to secured their presence well in time before this Court. Therefore, this Court took prayer of learned Sr.APP rejected and dropped out CW.1 to 4, 8, 11 and 12 vide order dated 25/07/2023. So there is no incriminating evidence against the accused. Non- 18 examination of material witnesses is fatal to the case of the prosecution. So from the evidence of pw.1 to 7 it appears that many contradictions, omissions and improvements. The prosecution has failed to prove contents of Ex.P.6 so its creates serious doubt regarding the version of prosecution. Therefore, this court clearly held that prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I answer Point No.1 in the negative.
14. Point No.2 : For the aforesaid reasons, I proceed to pass the following:
ORDER Acting under Section 248(1) of Cr.P.C., accused is hereby acquitted of the offences punishable u/Sec. 51(1) (B), 63 of Copyright Act and Sec.420 of IPC.19
The bail bond and surety bond executed by accused shall continue for a period of two months from the date of this order and thereafter same shall stands cancelled automatically.
The seized properties in PF No.62(A)/2019 item No.1 to 7 shall be destroyed as worthless after the appeal period is over.
(Dictated to the stenographer directly on computer, corrected directly on computer and then pronounced by me in open court on this the 17 th day of January 2024).
(R.Mahesha) IX Addl.Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
PW.1 : Shivu
PW.2 : Bijay Kumar
PW.3 : Ramu
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PW.4 : Harish
PW.5 : M S Bolethin
PW.6 : Sudhakar
PW.7 : L Mary.
LIST OF DOCUMENTS MARKED ON BEHALF
OF THE PROSECUTION:
Ex.P.1 to 5 : Statements of PW.1 to 5
Ex.P.6 : Complaint
Ex.P.7 : Report
Ex.P.8 & 9 : Letters.
List of material objects marked on behalf of the prosecution:
NIL List of witnesses examined on behalf of the defence:
NIL List of documents marked on behalf of the defence:
NIL List of materials marked on behalf of the defence:
NIL.
IX ADDL.C.M.M. Bengaluru.21
CC NO.12832/2021 Judgment pronounced in the open court (Vide separate order) ORDER Acting under Section 248(1) of Cr.P.C., accused is hereby acquitted of the offences punishable u/Sec. 51(1)(B), 63 of Copyright Act and Sec.420 of IPC.
The bail bond and surety bond executed by accused shall continue for a period of two months from the date of this order and thereafter same shall stands cancelled automatically. The seized properties in PF No.62(A)/2019 item No.1 to 7 shall be destroyed as worthless after the appeal period is over.
IX ADDL.C.M.M. Bengaluru.
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