Bangalore District Court
Being The Interested Witness Always ... vs Persons Under Copyright Act on 27 April, 2016
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 27th day of April 2016
Present : Sri.J.V.Vijayananda, B.Com., LL.B
IX Addl.C.M.M.Bangalore.
JUDGMENT UNDER SEC.355 OF Cr.P.C.
1.C.C. No 12535/2014
2.Date of Offence 09-11-2013
3.Complainant State by Srirampura Police Station
4.Accused 1. Tangaraj G.,
S/o Govindraj,
aged 33 years,
R/at No.24, 1st main road,
Ramachandrapura,
Srirampura,
Bangalore - 21
2. N. Manjunath,
S/o M. Nagaraj,
aged 35 years,
R/at No.30, 5th cross,
7th main road,
Srirampura,
Bangalore - 21
3. Sunil Kumar,
S/o Manohar,
aged 26 years,
R/at No.03/03, 3rd cross,
Kalappa Block,
Srirampura,
Bangalore - 21
5. Offences complained U/s.51(1), (b) and 63(A) Copyright
2 C.C.No12535/2014
of Act, 1957 r/w section 420 of IPC.
6.Plea Accused Nos.1 to 3 pleaded not
guilty.
7.Final Order Accused Nos.1 to 3 are acquitted
8.Date of Order 27-04-2016
REASONS
The sub inspector of police Srirampura police station,
Bangalore has filed this charge sheet against accused Nos.1
to 3 for the offences under sections 51(1), (b) and 63(a) of
Copyright Act, 1957 and section 420 of IPC.
2. The brief facts of prosecution case are that on
09-11-2013 at 9.30 a.m., in RL plaza, shop No.1, at
Dayanandanagara 1st main road, Ramachandrapura,
Bangalore city the accused No.1 being its owner, in Sri Sai
Fashion shop located in Rayal building No.13, 1st main
road, Ramachandrapura, the accused No.2 being its owner,
in Eagalware shop No.20 located in S.K.Complex, 1st main
road, Ramachandrapura, Bangalore city the accused No.3
being its owner, which shops are located within the limits of
Srirampura police station, the said accused No.1 to 3 were
found in possession of counterfeit shirts and T-shirts in the
brand name of US Polo over which brands 'US Polo
Association had copyright without there being any
authorization or written consent from the copyright holder
and thereby infringed the copyright of the said company,
further the accused persons were selling the same to the
3 C.C.No12535/2014
general public as if said clothes are being supplied by
copyright holder company and thereby cheated copyright
holder company as well as general public and committed
aforesaid offences.
3. The accused Nos.1 to 3 are on bail. On receipt of
charge sheet, this court took cognizance of offences and
furnished copies of prosecution papers to the accused
persons as required U/s.207 of Cr.P.C. After hearing on
charges of both counsels, this court has framed the charge
for the offences U/s.63 of Copyright Act, 1957 and section
420 of IPC and questioned. The accused Nos.1 to 3 denied
the charge and claims to be tried.
4. The prosecution to prove guilt against accused
Nos.1 to 3 has examined five witnesses as P.Ws.1 to 5 and
got marked six documents as per Exs.P.1 to 6 and also
marked two material objects as M.Os.1 and 2.
5. Thereafter, the statement of accused No.1 to 3 as
required U/s.313 of Cr.P.C., is framed and read over, they
denied the incriminating evidence appeared against them,
but did not choose to adduce defence evidence.
6. I have heard both counsels and perused the entire
file.
7. As stated above, the prosecution to prove guilt
against accused Nos.1 to 3 has examined five witnesses.
4 C.C.No12535/2014
P.W.1 Maraiah is the ASI, P.W.2 Sridhar is the head
constable and P.W.4 Shivakumar another head constable
who assisted the investigation officer in conducting the raid.
P.W.5 Vadivelu is the independent seizure mahazar witness.
It appears, in spite of giving sufficient opportunities the
prosecution has not examined another independent seizure
mahazar witness and other police officials, who assisted in
conducting the raid and the person who gave opinion
regarding the seized clothes.
8. I have carefully perused evidence on record. The
testimony of P.W.3 Janardhan B.N the police inspector who
conducted raid indicates that on 09-11-2013 at 9-00 a.m.,
C.W.1 Sri N.Babu the representative of Pinkerton Company
has handed over envelop cover given by DCP of North. He
opened and found complaint lodged by said C.W.1.
Accordingly, he registered the case and called C.Ws.2 and 3
as panchas. Thereafter, he, complainant, panchas along
with his staffs, visited RL Plaza shop and found one person
by name Tangaraju the accused No.1 herein and asked the
accused No.1 to produce T-shirts and shirts in the brand
name of US-Polo. Accordingly, accused No.1 has produced
50 T-shirts. C.W.1 has identified them as counterfeit, intern
he seized the same by preparing seizure mahazar.
9. His testimony further indicates that thereafter he
visited Sai Fashion Shop located in Royal Building No.13,
1st main, Bangalore City and found one person by name
5 C.C.No12535/2014
Manjunath the accused No.2 herein. He asked accused No.2
to produce T-shirts and shirts in the brand name of US.
Polo. Accordingly, accused No.2 has produced 30 T-shirts
and 10 shirts. C.W.1 has identified them as counterfeit,
intern he seized the same by preparing seizure mahazar.
10. His testimony further indicates that thereafter, he
visited shop No.20 of S.K.Complex and found one person by
name Sunil Kumar the accused No.3 herein and asked
accused No.3 to produce T-shirts and shirts in the brand
name of US-Polo. Accordingly, accused No.3 has produced
45 shirts and 30 T-shirts. C.W.1 has identified them as
counterfeit, intern he seized the same by preparing the
seizure mahazar.
11. His testimony further indicates that thereafter, he
returned to police station along with accused persons and
seized cloths, obtained report from C.W.1 that the seized
cloths are counterfeit in the brand name of US Polo.
Thereafter, he recorded statements of C.Ws.2 to 10 and after
completion of investigation, has filed chargesheet against
accused Nos.1 to 3.
12. P.W.1 Maraiah the ASI has corroborated the
testimony of P.W.3. His testimony indicates that on
9-11-2013, his station police inspector P.W.3 herein took
him, his other staffs, complainant and panchas to S.K
Complex. P.W.3 deputed him near Eagleware shop. On the
6 C.C.No12535/2014
same day, in between 12-00 to 12-30 p.m., P.W.3 has
visited said shop and found one person by name Sunil
Kumar accused No.3 herein. P.W.3 has asked accused No.3
to produce counterfeit cloths in the brand name of US Polo.
Accordingly, accused No.3 has produced 30 T-shirts. C.W.1
has identified them as counterfeit. Intern P.W.3 has seized
the same by preparing seizure mahazar.
13. P.W.2 Sridhar the head constable has corroborated
the testimony of P.W.3. His testimony indicates that on 9-
11-2013, his station police inspector P.W.3 herein took him,
his other staffs, complainant and panchas to Sai
Enterprises shop. P.W.3 deputed him near said shop. On
the same day, in between 1-30 a.m., to 11-00 a.m., P.W.3
has visited said shop and found one person by name
Manjunath the accused No.2 herein. P.W.3 has asked
accused No.2 to produce counterfeit cloths in the brand
name of US Polo. Accordingly, accused No.2 has produced
30 T-shirts and 10 shirts. C.W.1 has identified them as
counterfeit. Intern P.W.3 has seized the same by preparing
the seizure mahazar.
14. P.W.4 Shivakumar another head constable has
corroborated the testimony of P.W.3. His testimony
indicates that on 9-11-2013, his station police inspector
P.W.3 herein took him, his other staffs, complainant and
panchas to 1st main road Ramachandrapura. P.W.3 has
deputed him near Sai Enterprises shop. On the same day,
7 C.C.No12535/2014
at 11-00 a.m., P.W.3, C.W.1, panchas and his staff visited
said shop and found one person by name Tangaraju
accused No.1 herein. P.W.3 has asked accused No.1 to
produce counterfeit cloths in the brand name of US Polo.
Accordingly, accused No.1 has produced 50 T-shirts but
accused No.1 not produced any bill issued by copyright
holder company. C.W.1 has identified them as counterfeit.
Intern P.W.3 has seized the same by preparing the seizure
mahazar.
15. P.W.5 Vadivelu the independent seizure mahzar
witness as per Ex.P.1 has totally turned hostile. The learned
Sr.APP though cross-examined this witness, but nothing
worth elicited from him to doubt his testimony. As stated
above, in spite of giving sufficient opportunities the
prosecution has not examined other witnesses on record.
16. In a case like this, the offences have to be, proved
in a circumstantial evidence by way of proving the seizure
mahazar of seized cloths beyond all reasonable doubt.
Further, the prosecution has to prove that the seized cloths
are counterfeit in the brand name of US Polo and US Polo
Association Company had copyright over the brand name
US Polo. Further, the prosecution has to prove that accused
No.1 is the owner of RKS Enterprises shop, accused No.2 is
the owner of Sri Sai Enterprises shop and accused No.3 is
the owner of Eaglewear shop as on the date of the raid.
8 C.C.No12535/2014
17. As discussed above the prosecution to prove
seizure mahazar has examined four witnesses i.e., P.Ws.1 to
4. The learned counsel for accused persons though cross-
examined P.W.1 to 4, but noting worth is elicited from them
to doubt their testimony in the matter of seizure mahazar
and seizer of cloths in the brand name of US Polo. Even
though P.W.5 the independent seizure mahazar witness has
turned hostile and prosecution not examined another
independent seizure mahazar witness, I have no reason to
disbelieve the testimony of P.W.1 to 4 in the matter of
seizure mahazar. Therefore, this court is of the considered
opinion that the prosecution has successfully proved seizure
mahazar of seized cloths as per Ex.P.1 beyond all
reasonable doubt.
18. The testimony of P.W.3 further indicates that he
obtained report from C.W.1 as per Ex.P.4 that the seized
cloths are counterfeit. Admittedly, the prosecution has not
examined the complainant of this case i.e., C.W.1 herein
who is the author of Ex.P.4. No doubt the report given by
C.W.1 is marked thorough P.W.3 the investigating officer, in
my opinion mere marking of Ex.P.4, not thorough its
author, is not sufficient to conclude that the contents of
Ex.P.4 is proved. As stated above, in spite of giving sufficient
opportunities, the prosecution has not examined the author
of Ex.P.4 i.e., C.W.1 herein. Moreover, the report as per
Ex.P.4 cannot be, relied upon for the reason that the
complainant being the interested witness always interest in
9 C.C.No12535/2014
favour of his company to give opinion favoring his company.
In my opinion, P.W.3 the investigating officer ought to have
obtained report regarding seized cloths from independent
expert or from the authorized government agency. In my
further opinion, obtaining report from complainant
pertaining to seized cloths by P.W.3 the investigating officer
not as per the law. Therefore, this court is of the considered
opinion that the prosecution has failed to prove that the
seized cloths are counterfeit in the brand name of US Polo.
19. It appears P.W.3 during the course of investigation
has obtained trademark certificates of US Polo, which are
xerox copies. I have carefully perused the same. It appears
P.W.3 has not obtained copyright certificate of US Polo
Company. Even though P.W.3 has charge sheeted accused
persons under Copyright Act, unfortunately he has not
obtained copyright certificate of United State Polo
Associates, which had copyright. Therefore, prima facie the
prosecution has failed to prove that United State Polo
Associates had copyright over the brand name of US Polo T-
shirts and Shirts.
20. It appears P.W.3 during the course of investigation
not examined any witnesses and not collected any
documents to prove that accused Nos.1 to 3 are the owners
of above referred shops. In my opinion, mere saying in the
mahazar that accused Nos.1 to 3 are owners of the above
referred shops, unless examination of owner of building and
10 C.C.No12535/2014
collection rent agreement or other acceptable documents, it
cannot be said that the accused Nos.1 to 3 are the owners of
above referred shops. Therefore, looking from any angle,
this court is of the considered opinion that the evidence on
record is insufficient to conclude that the prosecution has
proved its case beyond all reasonable doubt. Accordingly,
the accused Nos.1 to 3 are entitled for benefit of doubt. In
the result, I proceed to pass the following:
ORDER
This court did not found guilt of accused Nos.1 to 3 for the offences U/s. 63 of Copyright Act, 1957 and section 420 of IPC.
Consequently, acting U/s.248(1) of Cr.P.C., accused Nos.1 to 3 have been acquitted for the above referred offences.
Their bail bonds and surety bonds stand cancelled.
M.Os.1 to 3 the counterfeit cloth and M.O.4 the original cloths are confiscated to government after appeal period is over.
Office to remove labels from M.Os.1 to 3 before putting them in public auction. Since M.O.4 is original T-shirt no, need to remove label attached to it. (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 27th day of April 2016) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
11 C.C.No12535/2014 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1, Maraiah; P.W.2, Shridhar; P.W.3, Janardhana.B.L P.W.4, Shivakumar; P.W.5, Vadivelu;
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1, Mahazar, Ex.P.1(a), Signature of P.W.1, Ex.P.1(b), Signature of P.W.2, Ex.P.1(c), Signature of P.W.4, Ex.P.2, Complaint, Ex.P.2(a), Signature of P.W.2, Ex.P.3, Authorisation letter, Ex.P.4, Opinion letter, Ex.P.5, FIR, Ex.P.5(a), Signature of P.W.3, Ex.P.6, Statement of P.W.5;
LIST OF MATERIALS MARKED ON BEHALF OF THE PROSECUTION:
M.O.1, 30 T-shirts, M.O.2, 30 T-shirts and 10 shirts, M.O.3, 50 US Polo T-shirts, M.O.4, Original US Polo T-shirts;
LIST OF WITNESSES EXAMINED, DOCUMENTS AND MATERIALS MARKED ON BEHALF OF THE DEFENCE:
NIL IX ADDL.C.M.M. Bangalore.
12 C.C.No12535/2014 Judgement pronounced in the open court vide separate sheet.
ORDER This court did not found guilt of accused Nos.1 to 3 for the offences U/s. 63 of Copyright Act, 1957 and section 420 of IPC.
Consequently, acting U/s.248(1) of Cr.P.C., accused Nos.1 to 3 have been acquitted for the above referred offences.
Their bail bonds and surety bonds stand cancelled.
M.Os.1 to 3 the counterfeit cloth and M.O.4 the original cloths are confiscated to government after appeal period is over.
Office to remove labels from M.Os.1 to 3 before putting them in public auction. Since M.O.4 is original T-shirt no, need to remove label attached to it.
IX ADDL.C.M.M. Bangalore.