Bangalore District Court
State By City Market Police Station vs Persons Are The Owners Of The Above ... on 2 January, 2015
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN MAGISTRATE,
AT BANGALORE.
Dated this the 2nd day of January 2015
Present : Sri J.V.Vijayananda B.Com., LL.B
IX Addl.C.M.M.Bangalore.
JUDGMENT U/S.355 OF Cr.P.C..
1.C.C.No. 22116/2012
2.Date of Offence 25-09-2012
3.Complainant State by City market Police Station
4.Accused 1. Prakash S/o. Berulal, 28 Years,
No. 53, O.T.Pet, Bangalore City.
2. Balavanth S/o. Asaji, 35 Years, No.56,
Akkipete Main Road, Bangalore.
3. Vishnuram S/o. Dharmaram, 38
Years, T.D. Line, Cottonpet, Bangalore.
4. Babulal, S/o. Biraji, 36 Years, No.5,
2nd Cross, Park Road, Akkipet,
Bangalore.
5. Krishnakumar,
S/o. Uthamchand Malu,
39 Years, No.49, 2nd F Cross,
3rd Phase, 3rd Block,
Basaveshwaranagar,
Bangalore.
5. Offences complained of U/s.51(1) (b) 63 of Copyright Act, 1957
6.Plea A1 to 5 pleaded not guilty.
7.Final Order A1 to 5 are Acquitted
8.Date of Order 2-1-2015
2 C.C.No.22116/2012
REASONS
The Sub Inspector of Police, City Market Police Station, Bangalore
has filed this charge sheet against accused Nos.1 to 5 for the offences
punishable U/s. 51(1) (b) and 63 of Copyright Act, 1957.
2. The brief facts of the prosecution case are that, on 25-9-2012
within the limits of City Market Police Station, at Pinki Fashion,
Rajdhani, Nakoda Cash and Carry, Milan Fashion and Triveni Shorts
and Trousers shop, the accused Nos.1 to 5 were found in possession
and selling of counterfeit T shirts and shirts in the name of Jack and
Jones Company without there being any authorisation or written consent
from the copyright holder and thereby committed the aforesaid offences.
3. The Accused Nos.1 to 5 are on bail. On receipt of chargesheet
this court took cognizance of the offences and furnished the copies of the
prosecution papers to the Accused Nos.1 to 5. After hearing on charges,
my learned predecessor has framed the charge for the offence punishable
u/s. 63 of Copyright Act, 1957 and questioned the Accused Nos.1 to 5
regarding the charge made against them, they denied the charge and
claimed to be tried.
4. The prosecution in order to prove its case got examined two
witnesses as P.Ws.1 and 2 and got marked eleven documents at Exs.P1
to P11 and also marked one material objects as per MO 1. Since C.Ws.1
to 4, 7 and 8 did not turn up before this court, hence by rejecting the
prayer of Sr.APP, this court dropped the examination of said witnesses.
3 C.C.No.22116/2012
5. Thereafter, this court examined the Accused Nos.1 to 5 as
required U/s.313 of Cr.P.C., they denied the incriminating evidence
appeared against them and submitted that they have no defence
evidence.
6. I have heard the arguments on both sides.
7. The prosecution in order to prove the guilt against accused
Nos.1 to 5 has examined two witnesses. P.W.1 H.K.Shivappa is the A.S.I.
who said to have participated in the raid. P.W.2 Channegowda is the
Investigating Officer who filed charge sheet. Inspite of giving sufficient
opportunities, the prosecution has not examined the complainant,
independent seizure mahazar witness, trainee Investigating Officer of
EIPR India Limited and other police officials who participated in the raid.
The learned Sr.A.P.P., has given up the examination of C.W.6 Police
Constable who has also participated in the raid.
8. The testimony of P.W.1 H.K.Shivappa ASI indicating that on
25-9-2012 the complainant, Police Inspector of CCB F & M along with
C.W.8, another Police Inspector, took him, C.Ws.6 and 7 pertaining to
conducting of raid in respect of selling of counterfeit clothes in the name
of Jack and Jones Company and also informed about the complaint
lodged by C.W.2. Accordingly, the complainant called C.Ws.3 and 4
panchas, requested them to assist in conducting raid. Since C.Ws.3 and
4 have agreed to stand as panchas, C.W.2 is the Junior Investigator of
EIPR Company took them to the Million Fashion shop situated at
4 C.C.No.22116/2012
O.T.road and they found one person by name Prakash. C.W.1 introduced
himself to the said person and also informed regarding conducting of
raid. Accordingly, C.W.2 has verified the said shop and found 8
counterfeit shirts in the name of Jack and Jones Company. C.W.1 asked
the person in the said shop whether he had any document to sell the
same. Since the said person has not produced any document, C.W.1 has
seized the same by preparing seizure mahazar.
9. The testimony of P.W.1 further indicating that, thereafter C.W.2
took them to the shop by name Rajadhani situated at A.S.Charge street.
They found one person by name Balawant in the said shop. C.W.1 has
introduced himself to the said Balawant and also informed him
regarding conducting of raid. Thereafter, C.W.2 has verified the said shop
and found 85 counterfeit shirts in the name of his Company. The said
Balawant was asked to produce the document to sell the same. Since he
has not produced any documents, C.W.1 has seized the same by
preparing seizure mahazar.
10. The testimony of P.W.1 further indicating that thereafter they
visited Nakod Cash and Carry situated in the said road, C.W.1
introduced himself to the person in the said shop and also informed the
purpose of his visit. C.W.2 has verified the said shop and produced 21
counterfeit T shirts in the name of his Company. Accordingly, C.W.1
has seized the same.
5 C.C.No.22116/2012
11. The testimony of P.W.1 further indicating that thereafter they
visited Million Fashion Shop situated at Mamulpet and found one person
by name Babulal. They informed the said Babulal the purpose of their
visit, thereafter C.W.2 has verified the said shop and found 71
counterfeit shirts in the name of his Company. Since the said Babulal
has not produced any documents to sell the same, C.W.1 has seized the
same by preparing seizure mahazar.
12. The testimony of P.W.1 further indicating that thereafter they
visited Triveni Cloth Shop situated at Mamulpet. They found one person
by name Krishnakumar and informed him regarding purpose of their
visit. C.W.2 has verified the said shop and found 475 counterfeit shirts
in the name of his Company. Since the said Krishakumar has not
produced any documents to sell the said shirts, C.W.1 has seized the
same by preparing seizure mahazar.
13. The testimony of P.W.1 further indicating that the seizure
mahazar was commenced at 11-30 a.m., and concluded at 3-15 p.m.
Thereafter, they took seized clothes and also the custody of persons in
the respective shops and brought to the City Market Police Station.
C.W.1 has lodged the complaint to this effect and handed over the
seizure mahazar, seized clothes and accused persons to the SHO of said
Police Station. P.W.1 has identified the accused persons as the persons
who were in the above referred shops when the raid was conducted.
Since P.W.1 has not explained the seizure as per Ex.P1, he has been
partly treated as hostile and cross-examined. In the cross-examination
6 C.C.No.22116/2012
P.W.1 has admitted that initially they visited Pinky Fashion Shop and
found one person by name Prakash Berulal. Further he admitted that in
Nakod Cash and Carry shop they seized 24 T shirts. Whereas in the
chief examination P.W.1 has stated that 21 counterfeit T shirts were
seized from the said Nakod Cash and Carry shop. In my opinion, the
said discrepancy is only minor in nature and can be ignored.
14. The testimony of P.W.2 the Investigating Officer indicating that
on 25-9-2012 at 9 p.m. C.Ws.5 and 6 have visited the Police Station and
given complaint and also handed over five persons, seizure mahazar,
seized shirts and T shirts. Accordingly, he registered the case in crime
No.163/2012. Thereafter, he enquired the said five persons and
recorded their statements. He reported 673 seized shirts and T shirts to
the court under P.F.No.75/2012. He also recorded the statements of
mahazar witnesses and police staff of CCB. After completion of
investigation, he filed charge sheet against accused Nos.1 to 5.
15. As stated above, the prosecution has only managed to examine
two witnesses. In a case like this, the offence has to be proved in the
circumstantial evidence by way of proving the seizure mahazar. Further
the prosecution has to prove that the seized shirts and T shirts are
counterfeit in the name of Jack and Jones Company. Further the
prosecution has to prove that EIPR Company had copyright over the
name Jack and Jones. Further the prosecution has to prove that the
accused persons are the owners of the above referred shops and having
knowledge that the seized T shirts and shirts are counterfeit in the name
7 C.C.No.22116/2012
of Jack and Jones Company by violating the copyright, they were selling
the same to the general public.
16. As stated above, the prosecution to prove the seizure mahazar
has examined only one witness i.e., P.W.1. In view of my above
discussion, P.W.1 has deposed regarding seizure mahazar. Though
P.W.1 was subjected to cross-examination, except eliciting some minor
discrepancies and contradictions which are common while deposing in
respect of seizure conducted in five shops, absolutely nothing worth is
elicited from him to disbelieve his testimony. Further, even though the
prosecution has not examined any independent seizure mahazar
witnesses and the police Inspector who conducted seizure mahazar, I
have no reason to disbelieve the testimony of P.W.1 in the matter of
conducting raid, seizure mahazar and seizure of 673 T shirts and shirts
by preparing seizure mahazar. Therefore, I am of the opinion that the
prosecution has successfully proved the seizure mahazar beyond all
reasonable doubt.
17. In my further opinion mere proving the seizure mahazar is not
sufficient to connect the accused persons for the offences alleged against
them. As stated above, the prosecution has to prove that the seized
clothes are counterfeit in the name of Jack and Jones Company over
which EIPR Company had copyright. In the instant case it appears
during the course of investigation the Investigating Officer has not at all
obtained any report from the expert indicating that the seized clothes are
counterfeit in the name of Jack and Jones over which EIPR Company
8 C.C.No.22116/2012
had copyright. Therefore, it appears the Investigating Officer is only
basing upon the say of C.W.2 who according to prosecution identified the
seized clothes as counterfeit in the name of jack and Jones Company at
the time of raid. Unfortunately, in spite of giving sufficient opportunities,
the prosecution has not examined said C.W.2. Therefore, the prosecution
has failed to prove that the seized clothes are counterfeit in the name of
Jack and Jones Company over which the EIPR Company had copyright.
18. Even though the prosecution got marked some documents
through Investigating Officer regarding owning of copyright by EIPR
Company, the author of said documents are not examined before the
court to explain how EIPR Company got copyright over the name of Jack
and Jones used on the shirts and T shirts. Mere marking some
documents through Investigating Officer is not sufficient to hold that the
prosecution has proved that EIPR Company had copyright over the name
Jack and Jones which is being used on the T shirts manufactured by
EIPR Company.
19. Further the prosecution has not got marked any documents
through Investigating Officer but has not examined any witnesses to
show that the accused persons are the owners of above referred shops.
No doubt, P.W.2 the Investigating Officer in his evidence has stated that
he enquired the accused persons and recorded their statements. As per
well settled law, the statement of accused persons recorded during the
course of custody by the police is not admissible in evidence unless it is
corroborated by the circumstantial evidence. In the instant case, the
9 C.C.No.22116/2012
prosecution has not produced any documents and has not examined any
witnesses to prove that the accused persons are the owners of the above
referred shops. Therefore, having regard to the facts and circumstances
of the case, I am of the considered view that the evidence on record is not
sufficient to come to the conclusion that the prosecution has proved its
case beyond all reasonable doubt. Accordingly, the accused persons are
entitled benefit of doubt. Hence I proceed to pass the following:
ORDER
Acting under Sec.248(1) of Cr.P.C., accused Nos.1 to 5 are hereby Acquitted of the offence punishable under Section 63 of Copyright Act, 1957.
Their bail bonds and surety bonds stand cancelled. The property M.O.1 shall be returned to C.W.2 Stephanraj after appeal period is over.
(Dictated to the Stenographer directly on computer and print out taken by her is verified and then pronounced by me in the open court on this the 2nd day of January 2015) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1, H.K.Shivappa, P.W.2, Channegowda;
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P1, Mahazar,
Ex.P2, Complaint
Ex.P3, FIR,
Ex.P4, Complaint,
Ex.P5, Letter of permission given by Company,
10 C.C.No.22116/2012
Ex.P6, Letter of declaration,
Ex.P7, Copy of Power of Attorney,
Ex.P8 to Ex.P11, Certificates pertaining to Trademark
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE
PROSECUTION :
M.O.1, Seized shirts;
LIST OF WITNESSES EXAMINED, DOCUMENTS & MATERIALS
MARKED ON BEHALF OF THE DEFENCE: NIL IX ADDL.C.M.M. Bangalore.
11 C.C.No.22116/2012Judgment pronounced in the Open Court vide separate sheet ORDER Acting under Sec.248(1) of Cr.P.C., accused Nos.1 to 5 are hereby Acquitted of the offence punishable under Section 63 of Copyright Act, 1957.
Their bail bonds and surety bonds stand cancelled. The property M.O.1 shall be returned to C.W.2 Stephanraj after appeal period is over.
IX ADDL.C.M.M. Bangalore.