Delhi District Court
State vs . Vikas Sharma on 31 October, 2018
IN THE COURT OF SH. BHUPINDER SINGH , ACMM01 (CENTRAL)
TIS HAZARI COURT, DELHI
State Vs. Vikas Sharma
FIR No. : 544/2006
PS: Karol Bagh
U/s : 63 Copyright Act 1957.
J U D G M E N T
1. Serial No. of the case : 291738/16
2. Date of Institution : 26.5.2008
3. Name of the Complainant : Sh. Shankar Paridwarl
4. Date of incident : 20.12.2016
5. Name of accused person : Vikas Sharma S/o Sh. Kailash
R/o RZ235 Part 1 Jain Colony
Om Vihar , Uttam Nagar , New
Delhi.
6. Offence complained of : U/s 63 Copyright Act 1957
7. Plea of accused person : Pleaded not guilty
8. Arguments heard on : 31.10.2018
9. Final order : Acquitted.
10. Date of Judgment : 31.10.2018
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BRIEF REASONS FOR SUCH DECISION:
1. Briefly stated: Case of the prosecution is that during a raid conducted on 20.12.2006 at about 3:45 pm at shop no. 95 D Gaffar Market within jurisdiction of PS Karol Bagh, accused was found in possession of 30 tube of 300gm each of flex Sampoo Revlan and 12 bottles of 150 ml having word Gatsby Spray Deodrant upon which the words of the company M/s Mandoom Corporation Japan were written and that the stickers were infringing copyright of its manufacturer company M/s Mandoom Corporation Japan. It is averred that accused infringed Copyright of the complainant company i.e. M/s Mandoom Corporation. It is alleged that accused committed an offence punishable under Section 63 of the Copyright Act.
2. After carrying out the investigation, charge sheet was filed. The accused was summoned. After compliance of section 207 Cr. P.C, a charge u/s 63 Copyright Act 1957 was framed against accused to which he pleaded not guilty and claimed trial. Thereafter, matter was listed for prosecution evidence.
3. Prosecution cited six witnesses. However, (8) eight witnesses have been examined on behalf of prosecution.
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4. PW1 HC Shiv Ram is the duty officer who deposed that on 20.12.06, he registered the FIR Ex. PW1/A on the basis of rukka. He was not cross examined by ld defence counsel despite opportunity.
5. PW 2 Rajiv deposed that he does not know anything about the present case and police did not record his statement in this case. He was cross examined by ld APP for state with permission of court. During his cross examination, he deposed that he know Sunil Sobti who was his cousin, that his cousin Sunil Sobti has been running a shop of artificial jewellary at shop no. 95 D Gaffar market Karol Bagh, that he did not know that any raid was conducted by the police at the shop of Sunil sobti on 20.12.2006 , that he saw the accused at the shop of Sunil Sobti, that accused was employee of Sunil Sobti, that he did not know whether spurious cosmetics material was recovered from the possession of accused. He denied the suggestion that he was deposing falsely as he had been won over by the accused Vikas Sharma . He further denied the suggestion that his statement was recorded by the police on 21.12.06 in the present case. He was not cross examined by ld defence counsel despite opportunity given.
6. PW 3 Sh. Ajay Sobti running a shop of ready made garments at stall no. 11B Gaffar market karol Bagh and his brother Sunil Sobti FIR No. 544/06 State Vs. Vikas Sharma Page no. 3 of 16 runs a shop of artificial jewelary at shop no. 95D Gaffar Market Karol Bagh , that he does not remember the date, month and year when was sitting on his shop and one person came and asked him to sign on paper, however he does not remember the contents of the same and do not know anything else about the present case. He was cross examined by ld APP for state with permission of court. During his cross examination, he deposed that in the year 2006 , accused Vikas was an employee in the shop of his brother Sunil . He denied the suggestion that he stated before the police that 20.12.06 spurious gel and cosmetic items were recovered from the shop of his brother belonging to accused Vikas and his brother made inquires from Vikas , he further denied the suggestion that he was deposing falsely as he has won over by the accused. He was cross examined by ld defence counsel that accused used to work in the shop of his brother and he only used to sell items of his brother's shop i.e artificial jewelary and not cosmetic items.
7. PW4 Sunil Sobti deposed against accused was his employee at shop no. 95 D Gaffar Market , Karol Bagh for last 810 years and he remained his employee about 23 months and left him after 78 months. He further deposed that accused joined him as employee and remained with him for half an year, that he saw accused in the custody of police officials, IO told him that a black colour plastic FIR No. 544/06 State Vs. Vikas Sharma Page no. 4 of 16 polythene containing infringed/fake gel has been recovered from his possession, that IO told him to arrest the accused , police official took accused to Daryaganj , he had photocopy of electricity bill of his abovesaid shop in the name of his mother, photocopy of his passport and visiting card to IO, IO seized the abovesaid documents vide memo Ex. PW 4/A, that IO seized the bill Ex. PW 4/ B . He was cross examined by ld APP for state with permission of court. During his cross examination, he deposed that on 20.12.2006 his statement was recorded by the IO, that he stated in his statement that the accused Vikas Sharma was his employee as sales man at his abovesaid shop on the salary of Rs. 3000/. He denied the suggestion that he had seen the hair gel, spray and he was not identifying the same in the court deliberately being won over by the accused or that he was deposing falsely on this aspect being won over by the accused. He was not cross examined by ld defence counsel despite opportunity given.
8. PW5 Shanker lal was working as investigation officer with M/s EIPR India Ltd having its registered office at Mumbai , that M/s EIPR India Ltd has been authorized by M/s Mandom Corporation a company of Japan , to conduct survey investigate and to report about the infringement of copyright and trademark of company and to initiate the elections, that during the survey he came to know some FIR No. 544/06 State Vs. Vikas Sharma Page no. 5 of 16 shopkeeper in Gaffar Market were indulging in the infringement of copyright /trademark at Gatsby Gloos products of M/s Mandom Corporation, that he made complaint Ex. PW 5/A , that on 20.12.2006 he alongwith investigator Mukesh Bhardwaj reached at the office of DIU Central at about 2:45pm where they met SI Bani Singh, that he conducted raid alongwith other police officials reached at Arya Samaj Road Ajmal Khan Road crossing near police booth , that at about 3:45pm they conducted raid at shop no. 95D Gaffar market , that accused was present at the shop, two black colour polythene were lying near the counter, that upon checking they found counterfeit products, that IO seized vide memo Ex. PW 5/ B and arrested accused vide memo Ex. PW 5/D, IO prepared site plan Ex. PW 5/D , that on 21.12.2006 he again joined investigation alongwith IO and accused, accused led us shop no. 5863/4Partap Market Sadar Bazar , IO conducted raid over there, the counterfeit products were recovered from the possession of accused. He was not cross examined by ld defence counsel despite opportunity given.
9. PW 6 Mukesh Bhardwaj, who was also part of raiding team. He deposed on line of PW5 i.e complainant.
10. PW7 Sh Chander Mohan deposed that he does not know FIR No. 544/06 State Vs. Vikas Sharma Page no. 6 of 16 anything about the present case. He was not cross examined by ld defence counsel despite opportunity given.
11. PW8 retired Inspector Banni Singh deposed that on 20.12.2006 he was posted as SI at DIU Central Daryaganj . He deposed that on that complainant presented him a complaint Ex. PW 5/ A with request to conduct a raid at Karol Bagh Gaffar market , New Delhi as he was having information that some person selling counterfeit products of M/s Mandom Corporaion, that he informed ACP, ACP directed him to conduct the raid , he constituted a raiding party including himself , other police officials, complainant Shankar Paridwal and his staff, that on 3:45 pm, at the instance of complainant they reached at shop no. 95 D Gaffar Market Karol Bagh, the accused Vikas sharma was found present at the counter of the said shop wit two polythene, that he requested some 56passersby to join the investigation but none agreed and went away without disclosing their name and addresses, he seized all counterfeit products in two pullanda and given serial no. 1 and 2 and seized vide memo Ex. PW 5/B , the seal after used was handed over to complainant, that he prepared rukka Ex. PW 8/A, that he handed over rukka to Ct. Harbir for registration of FIR, that he arrested accused vide arrest memo Ex PW 5/D and conducted his personal search vide memo Ex PW 5/E, that disclosure statement Ex. PW 5/F was recorded, that accused pointed out shop no. 2863/14 FIR No. 544/06 State Vs. Vikas Sharma Page no. 7 of 16 Partap market sadar Bazar vide memo Ex PW 5/G, that he produce the case property before court vide memo Ex PW 8/B, IO seized the documents related to the case vide memo Ex, PW 5/ A , that on 2.3.2007 he again seized two photocopy of biils from Sunil Sobti vide memo ExPW 4/B. He further deposed that on 25.4.2008 Sh Tulsi Ram consultant of the complainant company produced declaration certificate regarding copyright of company Ex. PW 8/C, that same has taken into his possession vide memo Ex PW 8/D. He correctly identified accused and case property Ex. P1 to P2. During his cross examination by ld defence counsel, he deposed that Ex.PW5/C site plan was prepared by him and there are adjoining shops and some of which has been shown by him in Ex.PW5/B as 95A to 95C and 94A to 94C, that he had inquired about the name of person available in these shop and recorded the same in the documents prepared by him on the said date, that the documents filed alongwith charge sheet and he had been asked upon to point out the documents in which he had recorded the name of the occupants of shop no. 95A to 95C and 94A to 94C, that after going through the documents, the witness states he had only recorded the statement of such person u/s 161 Cr.P.C, that he orally do not remember as to statement of which occupants of the said shop was recorded by him on 20.12.2006 but after going through the statement he can confirm the same, that after going through the statement of FIR No. 544/06 State Vs. Vikas Sharma Page no. 8 of 16 witnesses, he states that on 20.12.2006, he did not recorded the statement of witness, that he did not get signature of any neighbouring shopkeeper on the document prepared by him with date of 20.12.2006, that on 20.12.2006, he did not requisition any official from the local PS, that two police station, are in vicinity of gaffar market, namely, PS Karol Bagh and PS DBG Road and they They were at a distance ½3/4 KM, that they much nearer to the PS Dariya Ganj from where had started on the said date. He denied the suggestion that he did not make any efforts to associates the neighbouring shopkeeper at gaffar market or any person from market association to participate in the proceedings on 20.12.2006. He further deposed that he had mentioned about having involved passerby and shopkeepers for participating in the proceedings on 20.12.2006. He denied the suggestion that on Ex.PW5/A had been falsely written by him or that no such act was done by him. He deposed that even in this portion, no names of the person or the name displayed on the respective shops had been mentioned by me either in the portion A to A of Ex.PW5/A or anywhere else in any documents prepared by him, that no photographs of the shop or the place for which it is stated in the case that the articles have been spotted are taken, that there are photography shop in the gaffar market and it is also correct that there are photography shops in an around PS Dariya Ganj. He denied the suggestion that he had FIR No. 544/06 State Vs. Vikas Sharma Page no. 9 of 16 prepared a false case in collusion in the present case. He denied the suggestion that knowingly the photograph were not taken or that they were taken, the falsehood of my case would have been exposed. I had produced the case property and the document prepared relating to their seizure, before the Hon'ble Court u/s 165(5) Cr.P.C. or sought any indulgence of the Court with respect of the same. Vol. Application u/s 64 Cr.P.C. Ex.PW8/B was filed by him with case property before the then Ld. MM Sh. Ashutosh Kumar. It is also wrong to suggest that no such property was produced by me before the Court of Ld. MM. It is also wrong to suggest that he was deposing falsely. It is also wrong to suggest that he had planted the articles, in the present case. It is also wrong to suggest that only reason of not taking photographs, is to conceal the fact that the articles in the present case are falsely planted. It is also wrong to suggest that I am deposing falsely.
12. The prosecution evidence was closed vide even date order of this court. Thereafter, statement of accused U/s 313 Cr. PC was recorded wherein claimed to be innocent and have been falsely implicated in this case by police officials in collusion with PW 6 and PW 7 apart from other persons.
13. Arguments heard. Record perused.
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14. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
Brief reasons for decision
15. Let us peruse the record to see whether charge under section 63 Copyright Act has been established. In order to establish charge under section 63 Copyright Act, prosecution has to establish that accused knowingly infringed or abetted the infringement of the trademark of the complainant company. First and foremost ingredient of the offence is that recovery of the articles from the possession or at the instance of accused must be proved. Thereafter, it must be established that the articles recovered from the possession of accused were infact infringed articles.
16. The case of prosecution is that the infringed articles that 30 tubes of flex shampoo Revlon of 300gm each and 12 bottles of 150ml of GATSBY Spray deodorant were recovered from the possession of the accused. In order to prove the recovery , the prosecution examined PW 2 Sh. Rajiv, PW 3 Sh Ajay Sobti, PE 4 Sh. Sunil Sobti . PW 5 Sh. Shankar Lal, Pw 6 Sh. Mukesh Bhardwaj, Pw 7 Sh. Chander Mohan and PW 8 IO/Inspector Bani Singh. PW 5 and PW 6 FIR No. 544/06 State Vs. Vikas Sharma Page no. 11 of 16 are the complainant / officials of the complainant company and as such they can be termed to be interested witnesses . Apart from them, none of the witnesses have supported the case of the prosecution regarding recovery of the articles from the accused.
16 ( a) PW 2 Sh . Rajiv deposed that he did not know anything about the case and police did not record his statement ever. On being cross examined by ld APP for state, he deposed that he did not know whether any raid was conducted by the police at the shop of his cousin Sunil Sobti and he cannot say if the accused was his employee. He denied his statement mark X , ever record by the police. He deposed that he did not stated before the police that the recovered material was not related to Sunil Sobti and belong to the accused.
17. PW 3 Sh. Ajay Sobti deposed that he had signed on one paper but he did not remember its contents. On being cross examined by ld APP, he was not sure if the accused was employee of his brother Sh. Sunil Sobti. He denied suggestion that he told the police that spurious gel and cosmetics items recovered from his shop of brother belonging to accused Vikas. On being cross examined by ld defence counsel, he admitted that his brother, on whose shop the accused used to work dealt in artificial jewellery and not cosmetic items.
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18. PW 4 Sh. Sunil Sobti deposed that accused was his employee and about 8 years back on receiving the call of his brother, he came at the shop and found accused in custody of the police. He deposed that he was told by the IO that a black colour plastic polythene containing infringed/ fake gel were recovered from the possession of accused. He deposed that he cannot identify the gel as it was not shown to him.
19. PW 7 Sh. Chander Mohan also pleaded ignorance about his knowledge regarding the present case and denied giving any statement to the police that the accused who was servant of Sunil Sobti was found in possession of two polythene containing gel.
20. Thus, in view of the statements of the abovesaid PW 2 Sh. Rajiv, PW 3 Sh Ajay Sobti, PW 4 Sh. Sunil Sobti & PW 7 Sh. Chander Mohan, the apicacy of the recovery of spurious goods from the person of the complainant has come under the shadow of doubt. Even otherwise none of the aforesaid witnesses had signed the seizure memo Ex. PW 5/ B .
21. As per testimony of PW 5 Sh. Shankar Lal who is the complainant and PW 6 Sh. Mukesh Bhardwaj, the raid was conducted at the shop no. 95 D gaffar market, Karol Bagh at their instance. No reasons FIR No. 544/06 State Vs. Vikas Sharma Page no. 13 of 16 have been given by either of these witnesses or by the IO as to why this particular shop was targeted , moreso when the said shop deals exclusively with artificial jewellery and no cosmetic items. No evidence has come on record to suggest if the shop from which the articles were recovered dealt with cosmetic items as well and the gel/ deodorant were sold from there.
22. It is not the case of the prosecution that any decoy customer was sent for purchase of the gel/ deodorant and the accused offered spurious goods to him . The court does not find it convincing that as soon as the raiding party entered, the shop , the spurious goods were found, as if the accused just waiting for them to come. No reasons have been given as to why there was suspicion on the black colour polythene which was lying near the counter from where the goods have been allegedly recovered. As per disclosure statement of the accused , he used to sell the spurious goods since he was not able to make his ends meet due to his low wages while working with Sh. Sunil Sobti. However, it has not been disclosed as to how and from which place he used to sell the same. No photographs of the shop / spot have been taken .
23. Be that as it may, even if it is presumed that spurious gel/ deodorant were recovered from possession of accused, then also, it FIR No. 544/06 State Vs. Vikas Sharma Page no. 14 of 16 has remained unproved that the said articles were infact infringed/ counterfeit. Though PW5, 6 & 8 have testified that duplicate/infringed spurious gel/ deodorant were recovered from the possession of the accused, however admittedly said witnesses were not experts who could depose if the spurious gel/ deodorant (allegedly recovered from accused) were counterfeit/ infringed. Pw 5 Sh. Shankar Lal though proved his certificate of training for distinguishing original and counter products as mark A, but he did not produce the copy right certificate and original products of the company before the court. Though an application u/s 64 of Copy Right Act Ex. PW 8/B was moved before ld MM but he has not even been cited as PW to prove the proceedings. In the absence of testimony to this effect and non production of the copy right certificate and original products, there is nothing on record to suggest that the articles allegedly recovered from accused were counterfeit or spurious products. The presumption of innocence cannot be breached by resorting to surmises or conjectures. There is not even iota of evidence to prove that the accused were involved in any copyright or trademark violation.
24. In order to bring home charges under section 63 Copyright Act, it is essential that it must be proved beyond reasonable doubt that the articles recovered from the possession of accused were infringed FIR No. 544/06 State Vs. Vikas Sharma Page no. 15 of 16 copies of the original product. The original products i.e. spurious gel/ deodorant manufactured by the company were never produced for comparison.
25. In view of the discussion made in the above stated paras, I have reached a conclusion that prosecution has failed to establish the charge against the accused. The recovery from the spot is doubtful as independent witnesses have not support the case of prosecution . The original product was not produced or compared with the purportedly infringed copies of the cartridges. All these infirmities leads to the inevitable conclusion that charges under section 63 Copyright Act has not been established. Accordingly, the accused stands acquitted of the charge under section 63 Copyright Act. Case property be destroyed after expiry of period of appeal.
Digitally signed by BHUPINDER BHUPINDER SINGH
SINGH Date: 2018.11.03
15:01:57 +0530
Announced in the open court (Bhupinder Singh )
on 31.10.2018 ACMM01/CENTRAL
DELHI 31.10.2018
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