Bangalore District Court
State By Chamarajapete Police vs Has Examined Four Witnesses. P.W.1 Ayaz ... on 28 March, 2016
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 28th day of March 2016
Present : Sri.J.V.Vijayananda, B.Com., LL.B
IX Addl.C.M.M.Bangalore.
JUDGMENT U/S.355 OF Cr.P.C..
1.CC No 2977/2013
2.Date of Offence 8-12-2011
3.Complainant State by Chamarajapete Police
Station
4.Accused 1. Afroz
S/o Fayaz, aged 19 years,
Residing at No.5, 1st Cross,
Tippunagar, Mysore Road,
Bangalore City.
5. Offences complained U/s. 52(a) and 68(a) of Copyright
of Act, 1957 and Section 420 of IPC.
6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted
8.Date of Order 28-3-2016
REASONS
The Inspector of Police, Chamarajapete Police Station,
Bengaluru has filed this charge sheet against accused for the
offences punishable under section 52(a) and 68(a) of Copyright
Act, 1957 and section 420 of IPC.
2 C.C.No.2977/2013
2. The brief facts of the prosecution case are that, on
08-12-2011, at 3-00 p.m., in Jai Hind shop situated at No.57,
Mysore road, Adimula compound, Bangalore city, within the
limits of Chamarajapet police station, the accused being its
owner, was found in possession and selling of pirated DVDs,
CDs and MP3s of different language films which did not
contain the name and address of the person who has made,
the name and address of the person who prepared the sound
recording and the name and address of the owner of the
copyright, the year of its first publication, certificate from
board of film certification, the name and address of the person
who has made the video film and a declaration by him that he
has obtained necessary license or consent from the owner of
the copyright in such work for making such video film and
songs and further the accused was selling the same to the
general public as if the said DVDs, CDs and MP3s are being
supplied by the copyright holder company and thereby
cheated the general public as well as copyright holder
company and committed aforesaid offences.
3. The accused is on bail. On receipt of charge sheet
copies, this court took cognizance of the offences and
furnished the copies of prosecution papers to the accused.
After hearing on charges, this court has framed the charge for
the offences punishable under section 68(a) of Copyright Act,
1957 and section 420 of IPC and read over to the accused
person in the languages known to him, the accused pleaded
not guilty and claimed to try.
3 C.C.No.2977/2013
4. The prosecution to prove guilt against accused has
examined four witnesses as P.Ws.1 to P.4 and got marked five
documents as per Exs.P1 to P.5 also marked one material
object as M.O.1. Since C.Ws.1, 5, 7 to 9 did not turn up before
this court, by rejecting the prayer of Sr.APP, this court
dropped the examination of said witnesses.
5. Thereafter, this court examined the accused as
required under section 313 of Cr.P.C., the accused denied the
incriminating evidence appeared against him and submitted
that he has no defence evidence.
6. I have heard both counsels and perused evidence on
record.
7. As stated above the prosecution to prove guilt against
accused has examined four witnesses. P.W.1 Ayaz is the
independent seizure mahazar witness. P.W.2 P.Arun is the
senior Executive of Super Cassette Industries who gave
opinion regarding seized CDs, DVDs and MP-3s. P.W.3
Shivamalavaiah and P.W.4 Narasimha Murthy are the
investigating officers. In spite of giving sufficient opportunities,
the prosecution has not examined another independent
seizure mahazar witness and the police staff who assisted in
conducting the raid.
8. I have carefully perused the evidence on record. The
testimony of P.W.3 Shivamalavaiah the then Inspector of
4 C.C.No.2977/2013
Chamarajapet Police Station who conducted the raid indicates
that on 8-12-2011 at 3-00 p.m., when he was on station duty
received credible information regarding selling of pirated
DVDs, and MP-s in Jai hind shop at Tippunagar within the
limits of his police station. Accordingly, he took his staff
C.Ws.5 to 9 along with him, visited the said place, called
C.Ws.2 and 3 as panchas informed them regarding raid to be
conducted and they were watching by standing away from the
said shop. At that time, they found one person was storing
the CDs in the said shop. Immediately, he, his staff and
panchas visited said shop, enquired the name of said person
and came to know as Afroz son of Fayaz the owner of the said
shop. On enquiry, the said owner has stated that he brought
the said CDs and DVDs, which were loaded, from Tamilnadu
state to the City Market. On further verification, he found
different language films of CDs and DVDs. Thereafter, he
seized the same by preparing the seizure mahazar and
returned to the police station along with accused and seized
CDs, DVDs and MP-3s, registered sumoto case and reported
the seized CDs, DVDs and MP-3s to the court under
P.F.No.175/20111. He followed arrest procedure against the
accused and released him on bail. He recorded the statements
of panchas, his staff and sent seized CDs for opinion. After
receipt of opinion, he filed charge sheet against accused.
9. P.W.4 C.N.Narasimha Murthy the Head Constable who
said to have participated in the raid deposed that on 8-12-
5 C.C.No.2977/2013
2011 the police inspector of his police station P.W.3 herein
took him, his other staffs near Jaihind Shop at Tippunagar.
P.W.3 called two persons as panchas to the said place,
thereafter they visited said shop, and found one person by
name Afroz was selling the CDs. P.W.3 has enquired regarding
license to sell the same but the said person has stated that the
persons from Tamilnadu sent CDs in travel buses but he did
know the name of said person. On verification they found 400
CDs of Hindi film, 175 of CDs of Tamil language films, 25 CDs
of Telugu language films, 100 CDs of English language films,
25 CDs of Urdu language films in all they found 800 DVDs
and MP-3s. P.W.3 has seized the same by preparing the
seizure mahazar but he has not signed the mahazar.
10. P.W.1 Ayaz the independent seizure mahazar witness
has totally turned hostile. The learned Sr.APP., treated this
witness as hostile and further cross examined him but nothing
worth is elicited from him.
11. P.W.2 P.Arun the Senior Executive of Super Cassette
Industries has deposed that on 8-12-2011 the Chamarajapet
police inspector sent seized CDs to his office for opinion. He
verified and found that the said CDs, DVDs and MP-3s did not
contain sensor board certificate, maximum retail price and the
address of copyright holder and accordingly he gave opinion
that the seized CDs, DVDs and MP-3s are pirated. It is to be,
noted here that the further examination of P.W.2 deferred for
6 C.C.No.2977/2013
want of production of seized CDs, DVDs and MP-3s.
Subsequently, P.W.2 has not tendered for further examination.
12. As stated above, in spite of giving sufficient
opportunities, the prosecution has not examined another
independent seizure mahazar witness and other police staff
who participated in the raid.
13. In a case like this, the offences have to be, proved in
a circumstantial evidence by way of proving the seizure
mahazars of seized CDs, DVDs and MP-3s beyond all
reasonable doubt. Further, the prosecution has to prove that
the seized CDs, DVDs and MP-3s are pirated and not contains
necessary particulars as required under section 52A of the
Copyright Act. Further, the prosecution has to prove that the
member companies of Super Cassette Industries had copyright
over different language films of seized CDs and DVDs.
Further, the prosecution has to prove that accused is the
owner of Jaihind CDs shop at where the raid conducted.
14. As stated above the prosecution to prove seizure
mahazar has examined three witnesses. P.W.1 the
independent seizure mahazar witness has turned hostile.
Though the learned counsel for accused has cross examined
P.W.3 and 4 but nothing worth is elicited from them to doubt
their testimony in the matter of conducting of raid, preparing
of seizure mahazar and seizer of CDs, DVDs and MP3s.
Absolutely, I have no reason to disbelieve the testimony of
7 C.C.No.2977/2013
P.W.3 and 4. Accordingly, I am of the considered opinion that
the prosecution has successfully proved the seizure mahazars
of seized CDs, DVDs and MP-3s.
15. In my opinion, mere proving the seizure mahazar is
not sufficient to connect the accused for the offences alleged
against him. In order to connect the accused the prosecution
has also to prove that, the seized CDs, DVDs and MP-3s are
pirated and not contains necessary particulars as required
under section 52(A) of Copyright Act. It appears in this case
P.W.3 the investigating officer during the course of
investigation has obtained report regarding seized CDs, DVDs
and MP-3s from P.W.2. As stated above, P.W.2 has not
tendered for further examination. As per well settled law if
evidence of any witness records in part, for any reason the
evidence of said witness defers, subsequently the said witness
did not turn up for further examination, in such
circumstances whatever the part of evidence of said witness
cannot be looked into. In the instant case, P.W.2 has not
tendered for further examination as such his evidence cannot
be, looked into. Accordingly, the prosecution has failed to
prove that, the seized CDs, DVDs and MP-3s are pirated and
not contains necessary particulars as required under section
52(a) of the Copyright Act. Moreover, P.W.3 the investigating
officer has not seized original CDs, DVDs and MP-3s of
different language films in order to compare the same with
seized CDs, DVDs and MP-3s to know whether seized CDs,
8 C.C.No.2977/2013
DVDs and MP-3s did contain necessary particulars as
required under section 52(A) of Copyright Act.
16. Further, the investigating officer P.W.3 herein has not
collected any copyright certificate of member companies of
Super Cassette industries over different language films and
songs to prove that some persons or company had copyright
over different language films of seized CDs, DVDs and MP-3s.
Therefore, the prosecution has failed to prove that the member
companies of Super Cassette Industries had copyright over
different language films of seized CDs, DVDs and MP-3s.
17. It appears, P.W.3 during the course of investigation
has not collected any documents to show that accused is the
owner of Jaihind Shop where the raid was conducted. In the
mahazar it is stated that at the time of raid the accused has
stated that he is the owner of said shop. In my opinion, mere
saying in mahazar that the accused is the owner of the said
shop is not sufficient to hold that the prosecution has proved
that accused is the owner of shop where the raid conducted.
Therefore, looking from any angle, I am of the considered
opinion that the evidence available on record is insufficient to
conclude that the prosecution has proved its case beyond all
reasonable doubt. Accordingly, the accused is entitled for
benefit of doubt. In the result, I proceed to pass the following:
9 C.C.No.2977/2013
ORDER
This court did not found guilt of accused for the offences under Section 68(a) of Copyright Act, 1957 and Section 420 of IPC.
Consequently, acting under section 248(1) of Cr.P.C., accused has been acquitted for the above-referred offences.
His bail bond and surety bond stands cancelled.
M.O.1 CDs, DVDs and MP-3s are being worthless shall be destroyed 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 28th day of March 2016) (J.V.Vijayananda) IX Addl.Chief MetropolitanMagistrate, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1, Ayaz; P.W.2, Arun.P; P.W.3, Shivamalavaiah; P.W.4, C.N.Narasimhamurthy;
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1, Mahazar;
Ex.P.1(a), Signature of P.W.1;
10 C.C.No.2977/2013
Ex.P.2, Statement;
Ex.P.3, Report;
Ex.P.4, Report
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION:
M.O.1, CDs; LIST OF WITNESSES EXAMINED, DOCUMENTS AND
MATERIALS MARKED ON BEHALF OF THE DEFENCE:
NIL IX ADDL.C.M.M. Bangalore.11 C.C.No.2977/2013
Judgement pronounced in the open court vide separate sheet.
ORDER This court did not found guilt of accused for the offences under Section 68(a) of Copyright Act, 1957 and Section 420 of IPC.
Consequently, acting under section 248(1) of Cr.P.C., accused has been acquitted for the above-referred offences.
His bail bond and surety bond stands cancelled.
M.O.1 CDs, DVDs and MP-3s are being worthless shall be destroyed after appeal period is over.
IX ADDL.C.M.M. Bangalore.