Delhi District Court
State vs . Mukesh Kumar on 28 September, 2013
IN THE COURT OF SH. AMIT BANSAL, CHIEF METROPOLITAN
MAGISTRATE, PATIALA HOUSE COURTS, NEW DELHI
FIR No. 560/2001
u/s 63/68-A of The Copyright Act, 1957 & 292 IPC
P.S. Connaught Place
State Vs. Mukesh Kumar
Unique Case ID No. 02403R0211002002
JUDGMENT U/S 355 Cr. P.C.
a) Sr. No. of the case 02403R0211002002
b) Date of commission of offence 20.10.2001
c) Name of the complainant Mr. Dharmender Kapoor, Managing
Partner of The Indian Music Industry,
C-47, Ground Floor, Nizammuddin
East, New Delhi and Super Network,
H-182, Ist Floor, Malviya Nagar,
New Delhi.
d) Name, parentage & address of Mukesh Kumar s/o Sh. Satya
accused Narayan Sharma r/o H.No. 2690, Gali
Arya Samaj, Bazar Sita Ram,
Delhi-06.
e) Offence Complained of or proved U/s 63/68-A of The Copyright Act,
1957 and 292 IPC
f) The plea of the accused and his Accused in his statement under
examination Section 313 Cr.PC denied all the
material incriminating circumstances
appearing in the prosecution evidence
against him and stated that he is
innocent, has been falsely implicated
in the present case and nothing was
recovered from his possession or at
his instance.
In his statement u/s 313 Cr.P.C the
accused preferred not to lead defence
evidence.
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g) The Final order Accused Mukesh Kumar is
acquitted u/s 63/68-A of The
Copyright Act,1957 and Section
292 IPC
h) The date of such order 28.09.2013
Date of institution of case : 11.3.2002
Date of reserving judgment/order : 28.09.2013
Date of Pronouncement : 28.09.2013
BRIEF FACTS/ STATEMENT OF THE REASONS FOR
THE DECISION :-
1.Accused Mukesh Kumar is facing trial on the allegations of the prosecution that on 20.10.2001 at about 11.00 a.m at shop no. 1, Palika Bazar, Connaught Place, New Delhi, he was found in possession of 807 infringed CDs of Hindi films and songs along with MP3 Discs and inlay cards for the purpose of shop at his shop without having the permission from their copyright holder and these were also not having the particulars as per section 52A of Copyright Act, 1957 and thereby committed offences punishable under section 63/68-A of The Copyright Act, 1957. He is also facing trial on the allegations that on the above said date , time and place, he was also found in possession of 77 pornographic VCDs for the purpose of sale as mentioned in Seizure memo Ex.PW3/B and thereby committed an offence punishable under Section 292 IPC.
2. After completion of the investigation, charge sheet was filed in FIR No. 560/2001 P.S. Connaught Place 2 of 7 the court u/s 63/68-A of The Copyright Act, 1957 and Section 292 IPC against the accused. Copy of charge sheet and documents were supplied to the accused free of costs.
3. After hearing the arguments, the Charge u/s 63/68-A of The Copyright Act, 1957 and Section 292 IPC was framed against the accused Mukesh Kumar by Ld. Predecessor of this Court on 22.07.2005 to which he pleaded not guilty and claimed trial.
4. The prosecution has examined total three witnesses in support of its case i.e. PW-1 Sh. Rajender Bhatia, Legal Advisor of IMI, PW-2 SI Naveen Kumar ( Duty Officer ) and PW-3 H.C. Chand Singh.
5. The accused in his statement under Section 313 Cr.PC denied all the material incriminating circumstances appearing in the prosecution evidence against him and stated that he is innocent, has been falsely implicated in the present case and nothing was recovered from his possession or at his instance.
In his statement u/s 313 Cr.P.C the accused preferred not to lead defence evidence.
6. I have heard the final arguments and carefully perused the record.
FIR No. 560/2001 P.S. Connaught Place 3 of 7
7. As mentioned above, the prosecution in support of its case has examined total three witnesses.
PW-1 Sh. Rajender Bhatia is a formal witness being a Legal Advisor with IMI and proved the SPA made by IMI in favour of M/s Super Network as Ex PW1/A. PW-2 SI Naveen Kumar is a formal witness being the Duty Officer who registered the case FIR, carbon copy of which has been proved as Ex PW2/A. PW-3 H.C. Chand Singh is a material witness for the prosecution being the member of the alleged police raiding party which seized the said VCDs/CDs from shop no. 1, Palika Bazar, New Delhi. The seizure memo of Hindi and English infringed / pirated CDs has been proved as Ex PW3/A and the seizure memo of pornographic VCDs have been proved as Ex PW3/B. The Tehrir as prepared by IO SI Suman Pushkaran has been proved as Ex PW3/C. The arrest memo and personal search memo of the accused have been proved as Ex PW3/D and Ex PW3/E respectively.
8. PW-3 deposed in his examination in chief that before proceeding to shop no. 1, Palika Bazar, Connaught Place, New Delhi a request was made to public persons but none agreed. In cross examination, PW-1 admitted that Palika Bazar is a public place and number of public persons were available FIR No. 560/2001 P.S. Connaught Place 4 of 7 there. He also deposed that a request was also made at the shop to the public persons but none agreed and no written notice was served upon any of the public person to join the investigation. These circumstances show that IO did not make any sincere efforts to join public witnesses in the present case despite there availability. The non joining of the public persons despite their availability is a very big lacuna in the case of prosecution. It is also not the case of prosecution that any notice was given to the public persons who refused to join the proceedings/investigation. In view of the above said facts, a strong doubt arises over the alleged seizure from the accused persons and in the absence of joining of the public witnesses by the prosecution, on the facts and circumstances of the case no reliance can be placed only upon the testimony of the police witnesses. It is absolutely fatal to the case of prosecution and the accused are entitled to acquittal in the present case. My views are supported by judgment of Hon'ble Supreme Court of India in Sans Pal Singh Vs. State of Delhi AIR 1999 Supreme Court 49. The misery of the prosecution is further compounded by the fact that the prosecution has failed to examine the first IO SI Suman Pushkaran and even the second IO SI Mahesh Chander.
9. Perusal of record shows that the case property was produced by MHC(M) during the testimony of PW3 in two gunny bags, however, the seals on the bags were in broken condition and the gunny bags were also partly in FIR No. 560/2001 P.S. Connaught Place 5 of 7 torn condition. It raises a very strong doubt over the authenticity of the case property itself which is fatal to the case of prosecution.
10. As discussed above and as mentioned in the testimony of PW-3 the first IO SI Suman Pushkaran and the complainant Mr. Dharmender Kapoor are the material witnesses for the prosecution being the members of the alleged police raiding party which seized the infringed and pornographic VCDs/CDs from the above said shop, however, the prosecution has failed to examine both the above said witnesses. Both the said witnesses are material witnesses as SI Suman Pushkaran is the executant of the seizure memos Ex PW3/A and Ex PW3/B and Mr. Dharmender Kapoor ( Complainant ) is a witness to both the said memos. Non examination of the said material witnesses is again absolutely fatal to the case of prosecution. It is pertinent to note that despite several opportunities the prosecution has also failed to examine SI Mahesh Chander i.e the second IO of the case and due to his non examination even the site plan could not be proved on record. The benefit of doubt goes in favour of accused who is entitled to acquittal in the present case.
11. Accordingly, from the above said discussion, it is evident that the prosecution has failed to prove beyond reasonable doubt the charge against the accused and, therefore, the accused Mukesh Kumar is FIR No. 560/2001 P.S. Connaught Place 6 of 7 acquitted in the present case under Section 63/68-A of The Copyright Act, 1957 and Section 292 IPC. Bail bonds of the accused are cancelled and his surety is discharged.
File be consigned to record room.
Announced in the open court on : 28.09.2013 ( AMIT BANSAL ) CHIEF METROPOLITAN MAGISTRATE, NEW DELHI.
28.09.2013
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