Karnataka High Court
Nikhaar Jewels Pvt Ltd vs The State Of Karnataka on 5 March, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:9441
CRL.P No. 2038 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO. 2038 OF 2018
BETWEEN:
1. NIKHAAR JEWELS PVT. LTD.,
NO.10/2, 10/4, RICHMOND CIRCLE,
BENGALURU - 560 024.
REP. BY ITS AUTHORISED PERSON,
SRI URISH CHHAJED,
AGED ABOUT 49 YEARS,
SON OF VIRENDRA KUMAR CHHAJED.
2. B N CHANGAPPA,
AGED ABOUT 53 YEARS,
S/O B.B NANJAPPA,
MANAGER OF NIKHAAR JEWELS PVT LTD.,
NO.10/2, 10/4 RICHMOND CIRCLE
BENGALURU-560 024.
...PETITIONERS
(BY SRI AKKI MANJUNATH GOWDA K, ADVOCATE)
Digitally signed AND:
by
NARAYANAPPA
LAKSHMAMMA 1. THE STATE OF KARNATAKA,
Location: HIGH BY SAMPANGIRAMANAGAR POLICE
COURT OF
KARNATAKA BENGALURU CITY,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT COMPLEX,
BENGALURU-560 009.
2. SRI PRAKASH INGALE,
S/O SOPAN INGALE,
AGED ABOUT 47 YEARS,
NO.11, FRANGRANCE GARDEN,
CITY TOWER, P K ROAD,
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NC: 2024:KHC:9441
CRL.P No. 2038 of 2018
MIRA ROAD EAST, THANE CITY,
MAHARASTRA.
...RESPONDENTS
(BY SRI CHANNAPPA ERAPPA, HCGP FOR R1;
R2-SERVED)
THIS CRL.P IS FILED U/S.482 CR.P.C TO QUASH THE
ENTIRE PROCEEDINGS IN FIR NO.18/2018 AGAINST THE
PETITIONERS/ACCUSED NO.1 AND 2 FOR THE OFFENCE P/U/S
420 R/W 34 OF IPC AND SECTION 51 AND 63(B) OF
COPYRIGHT ACT, 1957, PENDING ON THE FILE OF IX
ADDL.C.M.M., BENGALURU.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
"a). To quash the entire proceedings in FIR No. 18/2018 against the petitioners/accused No.1 and 2 for the offence punishable under section 420 read with 34 of IPC and 51, 63B of Copyright Act 1957, pending on the file of the IX Additional Chief Metropolitan Magistrate, at Bengaluru;
b) And pass such other relief/s as this Hon'ble Court deems fit in the circumstances of the case, in the interest of justice."
2. Respondent No.2 has lodged a complaint with the 1st respondent-police alleging that the petitioners are indulging in illegal activities of usage/ storage/ download etc., of graphic designing/ printing/ -3- NC: 2024:KHC:9441 CRL.P No. 2038 of 2018 jewelry/ computer aided designing/ file condensing and file resizing and various other software for the last one year without a genuine or a proper licence causing huge monetary loss to the complainant. On which basis, Crime No.18/2018 came to be registered by the Sampangiramanagar Police Station for the offences under Sections 63B and 51 of Copy Right Act, 1957 and Sections 420 read with 34 of IPC, challenging the said FIR, the petitioners are before this Court in this petition.
3. Sri Akki Manjunath Gowda K., learned counsel for petitioners submits that complaint has been filed by the Power of Attorney holder and not by any owner of the software and as such, the complaint is not maintainable; (2) that the complaint has been filed only to get the petitioners to negotiating table to make the petitioners to purchase software from the complainant; (3) that the Company of which the Power of Attorney holders are the directors has been -4- NC: 2024:KHC:9441 CRL.P No. 2038 of 2018 struck off from the Registrar of Companies and the Directors Identification Number (DIN Number) issued in their favour have been cancelled in the year 2015 until 2021. The complaint has been filed on 15-2-2018 which was during the period when DIN number has remained cancelled and as such, the complaint could not be taken on record and on the above basis, he submits that the FIR which has been registered is required to be quashed.
4. Heard Sri Akki Manjunatha Gowda, learned counsel for petitioners and Sri Channappa Erappa, learned HCGP for 1st respondent. 2nd respondent served and unrepresented and perused the papers.
5. Learned counsel for petitioners has relied on the decision of the Hon'ble Bombay High Court in the case of NIRAV DANISHKUMAR SHAH VS. STATE OF MAHARASHTRA in W.P.NO.1920/2015 DATED 09-02-2018 to contend that the complainant had indulged in business of registration -5- NC: 2024:KHC:9441 CRL.P No. 2038 of 2018 of offence and as such, the same is an abuse of the process of Court. Paras 9 and 10 thereof are reproduced herein as under:
9. "Thus, after going through the complaint search, panchanama, the first remand report, we hold that the police machinery has been set into motion by the complainant as its business, to ensure that the petitioners are brought to the negotiation table and further to ensure that the petitioners either purchase the Software or pay license fees, and/or damages to the complainant. Thus, the law has been set into motion to make gains by the Agents with the active help of police.
10. We have also perused the investigation papers. The material collected in the investigation even otherwise does not make out the case for registering the offences under Sections 292, 353, 420 read with Section 34 of the Indian Penal Code. No doubt, the offences registered under the Copyright Act are of a serious nature but the manner and the process which has been undertaken or registering the offences is not sustainable in law. The facts of the case clearly indicate that the complainant and the police indulged into activity, much less 'business of registration of offence' which family results into financial gains to the complainant, which in our view is 'Abuse of Process of Law'."
6. The said judgment of the Hon'ble Bombay High Court being persuasive in nature. I am not persuaded by the said judgment in as much as this Court would have to take into account the prevailing realities in the software sector. It cannot be expected that the owner of the software deputes his own officers to all -6- NC: 2024:KHC:9441 CRL.P No. 2038 of 2018 nooks and corners of the Country to take action against the person indulging in piracy. The deputation of the employees of the Company is also a strain on the resources of such company and as such, engagement of private parties on agency basis to take necessary action against the persons who are pirating the software and using pirated software, in my considered opinion, cannot be faulted with.
7. Whether company of which, respondent No.2 is a Director is a defunct company and has been disqualified to act as the director will be of no consequence since the power of attorney indicates that the power of attorney has been issued in the individual name and not in favour of the company. Mere fact that they are represented to be directors of the Company cannot make power of attorney stated to be issued in the name of the company. The power of attorney being issued in the individual names the power of attorney holder would always -7- NC: 2024:KHC:9441 CRL.P No. 2038 of 2018 have the right to exercise the power contained under the said power of attorney which right can only be restrained by person who has issued the power of attorney and not to the petitioners.
8. In such circumstances, it would be necessary for the agents who have made specific allegation as regards the specific software which has been pirated or used without obtaining licence by the accused is to be established so that necessary action could be taken. In the present matter, as could be seen from the complaint, there is vague allegations made by respondent No.2 that the petitioners are indulging in illegal activities of usage/ storage/down load etc. of graphic designing/ printing/ jewelry/ computer aided designing/ file condensing and file resizing and various other software for the last one year without a genuine and proper licence thus causing huge monitory loss to the company. The said complaint does not, in fact, say which software has been used -8- NC: 2024:KHC:9441 CRL.P No. 2038 of 2018 by the accused and whether respondent No.2 represents the owner of the said software by way of power of attorney. Vague allegations have been made against the petitioners.
9. The police, in my considered opinion cannot exercise the power under Sections 51 and 63B of the Indian Copy Rights Act, 1957, to cause search and seizure of premises of a private party without there being any specific allegations which could be verified on such search and seizure. The police authorities cannot on the basis of the vague allegations make use of their police powers to enter into the premises of any private citizen or entity to cause such search and seizure without there being any substantial basis for the said complaint requiring search and seizure. In the present case as afore observed, the allegations in the complaint being vague and there being no mention about any particular software which is pirated and used illegally by the petitioners, -9- NC: 2024:KHC:9441 CRL.P No. 2038 of 2018 the police- respondent No.1 cannot carryout any further investigation. In that view of the matter, I pass the following:
ORDER
(i) The criminal Petition is allowed.
(ii) FIR in Crime No.18/2018 registered by the 1st respondent-Police now pending before the IX Additional Chief Metropolitan Magistrate, Bangalore, is quashed.
Sd/-
JUDGE tsn* List No.: 1 Sl No.: 51