Delhi District Court
Metropolitan Magistrate-03 (Ipr) vs . on 28 May, 2009
IN THE COURT OF SH. DIG VINAY SINGH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE-03 (IPR), ROHINI, DELHI
In re:
State ...COMPLAINANT
VS.
Tilak Raj Satija ...ACCUSED
FIR No.99/94
U/s.63, 65, 68-A of Copyright Act, 1957.
STATE VS. TILAK RAJ SATIJA
PS PASCHIM VIHAR
DATE OF RESERVATION OF JUDGMENT: 11.5.2009
DATE OF PRONOUNCEMENT OF JUDGMENT: 23.5.2009
JUDGEMENT
(a) The serial no. of the case : 15/3.
(b) The date of commission of offence :25.2.1994.
(c) The name of complainant :SATISH KAPOOR,
PARTNER,
SUPER MEDIA
NETWORK,
F-39, KAPOOR
BUILDING,
EAST OF KAILASH,
NEW DELHI.
(d) The name,parentage,residence :TILAK RAJ SATIJA @
of accused RAJU S/O.SH.V.R.
SATIJA R/O. BG-
7/10, PASCHIM VIHAR,
NEW DELHI.
(e) The offence complained of/ proved :63/65 and 68-A of
Copyright Act, 1957.
(f) The plea of accused :Pleaded not guilty
(g) The final order :Convicted.
(h) The date of such order :23.5.2009.
(i) Brief statement of the reasons for the decision :-
1. Sole accused Tilak Raj Satija was sent up for trial in this case JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 1 of 22/K with the case of prosecution that on 25.2.1994, a complaint was given by Mr. Satish Kapoor, one of the partners of M/s. Super Media Network. The complaint was given on behalf of Indian Phonographic Industries(IPI for short). It is mentioned in the complaint that M/s. Super Media Network was authorised by IPI, which is a trade association of 41 phonogram producers in India and amongst them are, Gramophone Company of India, Weston, Tips, Venus, Magnasound, Music Indian Ltd. & others. It was alleged in the complaint that several persons were indulging in infringement in the music work of these companies.
2. On receipt of this complaint, a raiding party comprising of SI Anil Kapoor, Inspector D.V. Dutt, SI Satbir Singh, HC Satbir Singh, Ct. Sunder, Ct. Rajesh Kumar, Ct. Kamal Singh, Ct. Anand Singh and other staff was formed. Complainant Satish Kapoor also accompanied the raiding party. At about 11.10 pm, at the instance of complainant Satish Kapoor, premises no. BG-7/117, Paschim Vihar, New Delhi, was searched where accused Tilak Raj Satija was present occupying that premises. From the premises, total 1960 infringed audio cassettes of various movies such as Baazigar, Vijaypath, Kabhi Haan Kabhi Na, Dilwale, Elaan etc. were recovered, out of which 1110 audio cassettes were with inlay cards and remaining 850 were without inlay cards. 200 blank audio cassettes were also recovered. Three recording units/audio cassettes of make Sony having capacity of 1 X 3 were also recovered. 2253 inlay cards of various movies such as Khuddar, Kabhi Haan Kabhi Na, Sholey, Elaan etc. were also recovered. Some of the audio cassettes were played on the player which was containing movies songs as mentioned on the inlay cards. The entire case property was kept in seven gunny bags and was sealed with the seal of AK and was taken into police possession. The present case was got registered. The accused was arrested and thereafter pursuant to the disclosure of accused, one more JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 2 of 22/K premises no.64/B, Pandav Nagar Janta Flat, Delhi, was searched on that very night and from there 7900 infringed audio cassettes of different movies were recovered alongwith 60000 inlay cards of different movies, which were also kept separately in twelve gunny bags and was taken into police possession. On the completion of investigation, chargeheet was filed.
3. Accordingly, my Ld. Predecessor framed charge against the accused on 07.10.1998 for the offences u/s.63,65, and 68-A of Copyright Act, 1957, to which the accused claimed trial. In support of its case, prosecution examined following six witnesses namely :
a. PW1 - S. Sidhorai, Secretary General of Indian Music Industries.
b. PW2 - Naresh Kumar.
c. PW3 - Inspector Satyaveer Singh. d. PW4 - Ramesh, Partner of Tips Cassettes. e. PW5 - Satish Kapoor, complainant/Partner Super Media Network.
f. PW6 - Inspector Anil Kapoor, IO.
4. All the incriminating evidence was put to the accused in his statement u/s. 313 Cr.P.C. to which the accused claimed that nothing was recovered from his possession and that he has been falsely implicated and also that his signatures were obtained on blank papers by the police in the Police Station on which the police prepared false documents. Therefore, the defence of the accused was of absolute denial. I have heard the arguments from both sides.
5. PW1 S. Sidhori, Secretary General of Indian Music Industries deposed, that Indian Music Industries which was formerly known as Indian Phonographic Industries is a trade association of various music companies who are members of this association and the association was assigned the job to protect JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 3 of 22/K copyright of its member music companies. In 1994, he authorised M/s. Super Media Network to take such necessary actions against infringement and, in this case after raid was conducted he furnished documents to the police. The witness proved the authorisation by one of music company, Gramophone Music Company Ltd., authorising Indian Phonographic Industries to take action of protection of copyright of this company as Ex. PW1/A. Similar authorisation by M/s. Venus Record & Tapes was proved as Ex. PW1/B; the witness also proved the documents assignment of copyright of movie "Roza" in favour of M/s. Megnasound by the producers of the film as mark PW1/A; the assignment of copyright of move "Raja Babu" as mark PW1/B; copyright of movie "Dilwale" as Ex. PW1/C; assignment deed regarding movie "Elaan" as Ex. PW1/C; assignment deed of movie "Saajan" as mark PW1/D; copyright of movie "Dalaal" as Ex. PW1/D; copyright of movie Baazigar" as Ex. PW1/E; assignment of movie regarding copyright of songs of Baba Sehgal, M/s. Megnasound as Ex. PW1/F; copyright certificate of movie "Roza" as Ex. PW1/G. The witness also proved his letter Ex. PW1/F vide which the documents as above were handed over to the investigating officer of the present case. Nothing material could be brought out from the cross-examination of this witness in order to impeach the creditworthiness or trust worthiness of this witness.
6. PW4 Ramesh, partner of M/s. Tips Cassettes & Records Co. is a formal witness, who proved original authority letter issued by his company in favour of Indian Phonographic Industries to protect the music work of M/s. Tips cassettes as Ex. PW4/A, which was signed by this witness as a partner. The witness also proved the agreement of the copyright regarding movie "Khuddaar" with the producer of the film as Ex. PW4/B1.
7. PW2 Naresh Kumar, PW3 Inspector Satyavir Singh, PW5 JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 4 of 22/K Satish Kapoor & PW6 Inspector Anil Kapoor are all recovery witnesses and it is deposed by the witnesses that on 25.2.1994, Satish Kapoor gave a complaint Ex. PW5/A which was marked to PW6 for investigation and on which a raiding party consisting of these witnesses alongwith Inspector D.B. Dutt, Ct. Rajesh, Ct. Kamal Singh and other police officials was organised and the premises no. BG-7/177, Paschim Vihar, New Delhi, was raided at 11.10 pm. In the premises, accused was present and total 1960 infringed audio cassettes of different titles, 200 blank cassettes, 2253 inlay cards of movies "Kabhi Haan Kabhi Naa, Elaan, Dilwale, Khuddar" were recovered. It is deposed that out of 1960 audio cassettes, 1110 cassettes were with inlay cards and remaining 850 were without inlay cards. Three recording units having capacity of 1 X 3 copies were also recovered. All these case property was kept in seven gunny bags and were sealed with the seal of AK which belonged to PW6 Inspector Anil Kapoor, who was the IO of this case. The case property was seized vide seizure memo Ex. PW2/A and thereafter ruqqa was prepared and the case was got registered through Constable and thereafter the accused was arrested vide arrest memo Ex. PW5/B. It is further deposed that the accused made a disclosure statement Ex. PW5/C upon which premises at 66B, Pandav Nagar, New Delhi, was also raided on that very night and from where 7900 infringed audio cassettes and 60000 infringed inlay cards were also recovered. This case property was kept in another 12 gunny bags and was sealed with the seal of AK and taken into police possession vide memo Ex. PW2/G. In the testimony of PW2 Naresh Kumar, the case property was produced who identified the case property as the same which was recovered from the possession of accused. All 19 gunny bags were produced in the Court on 05.9.2000, it is not mentioned that any of those gunny bags were without seal or torned gunny bags or there was any other problem with the case property JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 5 of 22/K produced, thereby meaning, that when the case property was first produced in the Court in the testimony of PW2, the gunny bags were intact with all intact seals. PW6 Inspector Anil Kapoor also deposed that during investigation, he seized various documents and on completion of investigation, he filed the chargesheet. The case property was proved in the testimony of witnesses as Ex. PW1 to P19. PW5 Satish Kapoor could not depose regarding recovery from the accused at Pandav Nagar premises upon which he was declared hostile by Ld. APP and he was cross examined, but in the cross examination, the witness recollected and deposed that on that very night from Pandav Nagar premises infringed audio cassettes and inlay cards which were total 7900 and 60000 respectively of different Hindi Movies were recovered and which were properly sealed by the IO and taken into police possession. PW2 Naresh Kumar, PW3 Inspector Satyavir Singh, PW5 Satish Kapoor & PW6 Inspector Anil Kapoor all categorically deposed about raiding the two premises of the accused and recovery of large quantity of infringed articles. These witnesses were subjected to cross examination by the accused but despite lengthy cross examination nothing material could be brought out on record from the cross examination of these witnesses in order to impeach the creditworthiness or trustworthiness of these witnesses. Although, in the cross examination, some minor discrepancies regarding the time when ruqqa was sent, the time when the Constable returned after registration of FIR, the time spent by the raiding time in completing the proceedings at two premises, the time when they finally left the spot were brought out, but all these contradictions are trivial in nature particularly in view of the fact that evidence of the witnesses in this case was recorded after more than six years after the recovery and even some of the witnesses were examined more than ten years after the incident. In such circumstances, no JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 6 of 22/K undue weightage can be given to these trivial contradictions. Whenever witnesses are examined in the Court after such long gap of time, minor discrepancies are bound to occur.
8. Ld. counsel for the accused argued that there is non compliance of section 64 of the Copyright Act, 1957, which provides that any infringed articles/plates which are seized by the police officer shall be brought and produced before the Magistrate immediately and as soon as possible. It is argued that in the present case, the case property was never so produced. In my considered view, this lapse on the part of IO is not fatal to the case of prosecution. No doubt, the word used in section 64 of the Copyright, 1957 is "Shall", but the question is that in a case if the recovery is otherwise established beyond reasonable doubt by the prosecution in evidence, merely because the IO failed to bring the same before magistrate and comply with provision of law, benefit cannot go to the accused. The lapse on the part of IO may be due to ignorance or may be deliberate but it is settled law that such lapses of Investigating Officer should not give any undue benefit to the accused.
9. Defective investigation by itself cannot be made a ground for acquitting the accused. Reliance may be placed upon the cases of Prithvi vs. Mam Raj AIR 2004 SC 2729; state of U.P. vs. Hari Mohan AIR 2001 SC 142; in the case of state of W.B. vs. Mir Mohd. Omar AIR 2000 SC 2988 it was observed in para no 41 as" 41. Learned Judges of the Division Bench did not make any reference to any particular omission or lacuna in the investigation. Castigation of investigation unfortunately seems to be a regular practice when the trial Courts acquit accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal Courts should not be wasted in picking out the lapses in investigation and JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 7 of 22/K by expressing unsavory criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by Courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case. ................".
Similarly in the case of AIR 2003 SUPREME COURT 2612 "Union of India v. Prakash P. Hinduja" = 2003 AIR SCW 3258: AIR 2001 SUPREME COURT 142 "State of U.P. v. Hari Mohan" = 2000 AIR SCW 4012: AIR 2003 SUPREME COURT 660 "State of U.P. v. Jagdeo" AIR 2003 SUPREME COURT 1164 "Amar Singh v. Balwinder Singh"= 2003 AIR SCW 717 it was held that Error or illegality in investigation would have no impact on trial unless miscarriage of justice is brought out. Defective investigation Cannot be made a basis for acquitting accused - More so when a case is made out against all or any one of the accused persons. Accused cannot be acquitted only on ground that investigation was faulty. For fault of prosecution, perpetrators of such a ghastly crime cannot be allowed to go seat free. Where Prosecution case is fully established by direct testimony of eye-witnesses and Corroborated by other evidence then any failure or omission of investigating officer, cannot render prosecution case doubtful or unworthy of belief.
It may not be out of place to reiterate what was said in H. N. Rishbud and Inder Singh v. State of Delhi, (1955) 1 SCR 1150=(AIR 1955 SC 196), that a defect or JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 8 of 22/K an illegality in the investigation, however serious, has no direct bearing on the competency or the procedure relating to cognizance or trial of an offence and that whenever such a situation arises, Section 537 of the Code of Criminal Procedure is attracted and unless the irregularity or the illegality in the investigation or trial can be shown to have brought about a miscarriage of justice, the result is not affected."
10.It is next contended by the counsel for accused that ownership of the properties from where recovery was affected is not proved. Again, this argument is also of no help to the prosecution and the witnesses categorically deposed that the accused was physically present when the raid was conducted and recovery of infringed articles was affected. Non procuring of ownership documents of property cannot be called fatal , particularly when the accused was apprehended from the spot red handed.
11. It is next argued that independent witnesses of the recovery have not been joined by the IO nor family members of the ac- cused was joined. Again on this ground alone acquittal of the accused cannot be claimed for the simple reason that non join- ing of the independent witnesses from the same locality by the IO may be either due to deliberate lapse or may be due to ig- norance. It may be mentioned that the prosecution witnesses claimed that witnesses were so requested, but they did not join. It is not uncommon that independent public witnesses are reluctant to join criminal proceedings. Even otherwise po- lice joined PW2 Naresh and PW5 Satish Kapoor, both of whom are non police officials and representatives of IMI/IPI. Both these witnesses and other police officials have no reason to falsely implicate the accused. No such reason has been put forward by the accused for his false implication. Therefore, non joining of independent responsible witnesses of the locali- ty is not fatal. PW-2 and 6 are public persons and not police JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 9 of 22/K officials. There is no reason for them to falsely implicate the accused in the present case. Even there is no reason for the other police officials to falsely depose against the accused or implicate the accused. The case of prostitution is that few in- dependent witnesses were indeed requested to become wit- ness but they did not agree. It is not uncommon these days that people are reluctant to become witness in criminal trial cases. In such circumstances no benefit can be given to the ac- cused for not joining independent public witnesses. It is a mat- ter of common knowledge that public persons are reluctant to become witnesses of criminal trial. It has been held in a num- ber of judgments by Hon'ble Supreme court and High Courts that merely because public witnesses are not joined in a case, prosecution case cannot be thrown out.
12. In AIR 1970 SUPREME COURT 1396 "Bai Radha v. State of Gujarat" The sole point which arose before Supreme court for decision was whether the trial became illegal by reason of the search not having been conducted strictly in accordance with the provisions of Section 15 of the Suppression of Im- moral Traffic in Women and Girls Act, 1956 which provision was akin to the present sec 15 of the Act . The facts need not be stated in detail. The appellant and two other persons were tried for various offences under the provisions of the Act, the charge substantially against her being that she was keeping a brothel in her house and knowingly lived on the earnings of the prostitution of women and girls. What was stressed great- ly by learned counsel for the appellant was that the Act being a special Act its provisions should have been strictly followed. It was pointed out that the panch witness was not an inhabitant of the locality in which the place to be searched was situate. Hon'ble S.C. held that, we are of the opinion that non-compliance with the di- rections contained in Section 15 (2) in the matter of search would only be an irregularity and not such an ille- JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 10 of 22/K gality which will vitiate the trial. In that sense it would be legitimate to say that a search which is to be conduct- ed under the Act much comply with the provisions con- tained in Section 15; but it cannot be held that if a search is not carried out strictly in accordance with the provisions of that section the trial is rendered illegal. There is hardly any parallel between an officer conduct- ing a search who has no authority under the law and a search having been made which does not strictly con- form to the provisions of Section 15 of the Act. The prin- ciples which have been settled with regard to the effect of an irregular search made in exercise of the powers un- der Section 165 of the Code of Criminal Procedure would be fully applicable even to a case under the Act where the search has not been made in strict compliance with its provisions. It is significant that there is no provision in the Act according to which any search carried out in contravention of Section 15 would render the trial ille- gal. In the absence of such a provision we must apply the law which has been laid down with regard to searches made under the provisions of the Criminal Procedure code. In para 8 it was held that "In conclusion it may be observed that the investigating agencies cannot and ought not to show complete disregard of such provisions as are contained in sub-sections (1) and (2) of Section 15 of the Act. The legislature in its wisdom provided special safeguards owing to the nature of the premises which have to be searched involving inroads on the privacy of citizens and handling of delicate situations in respect of females. But the entire proceedings and the trial do not become illegal and vitiated owing to the non-observance of or non-compliance with the directions contained in the aforesaid provisions. The Court, however, has to be JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 11 of 22/K very careful and circumspect in weighing the evidence where there has been such a failure on the part of the in- vestigating agency but unless and until some prejudice is shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside.
Hon'ble Supreme court in the case Ambika Prasad & anr vs. State 2002 (2) CRIMES 63 (SC) held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are under constant threat and they dare not depose the truth before the Court, independent wit- nesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witness- es and repeated adjournments in the Court. In any case if in- dependent persons are not willing to cooperate with the inves- tigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses. It was also held that non examination of investigating officer of the case is no ground to discard the evidence of eye witnesses. Similarly in the case of State of U.P. vs. Anil Singh AIR 1988 Sc 1998 ; Dr Krishna Pal and another vs. State of U. P.1996 (7) SCC 194 and in the case of Appabhai Vs. State Of Gujrat AIR 1988 SC 696 it was held that These days people in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are in-sensitive when crime is committed even in their pres- ence and they withdraw both from the victim and vigi- lante.
13. Law is not that testimony of police officers is absolutely un- trustworthy or that it can never be acted upon. Rather, the law JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 12 of 22/K is that even the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimo- ny is unimpeached and found to be trustworthy.
Hon'ble Supreme Court in Anil @ Andya Sadashiv Nan- dorkar Vs. State J. T. 1996 (3) SC 120 has held that testi- mony of the police officials cannot be discredited merely be- cause they are police officials if otherwise, their testimony is found to be cogent, trustworthy and reliable.
Hon'ble Supreme Court in Akmal Ahmad Vs. State of Delhi J. T 1999 (2) SC 388 held that ''it is now well settled that evidence of search and seizure made by police will not be- come vitiated only for the reasons that the evidence is not sup- ported by independent witnesses.''
14. Learned Counsel for the accused pointed out to the contradictions in the testimony of witnesses as to the time when the ruqqa was sent for registration of FIR, who sent to register FIR, time when the official returned to the spot after registration of FIR, time when the police left Paschim Vihar from Pandav Nagar, time of reach and leaving Pandav Nagar, how many persons requested to become witness, whether there were other persons available on the other portion of the premises, where the written work was conducted etc.etc., But I have already mentioned above that these are minor contradictions which cannot be turned as fatal.
In the case of Sukhdev Yadav & ors. Vs State of Bihar (2001) 8 SCC 86 it was held by Hon Supreme Court that that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same . If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram vs. State of Haryana (1999) 9 SCC 525 it was observed that JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 13 of 22/K there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Relying upon an earlier decision in Ramani vs. State of M.P. (1999) 8 SCC 649 it was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was also held that it is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment the credit of a witness by proof of an JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 14 of 22/K inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
In Krishna Mochi and Others Vs. State of Bihar, (2002) 6 SCC 81, it was held that it is the quality of evidence that matters and not the number of witnesses. It was further held that credible evidence of even a solitary witness can form the basis of conviction. That contradictions, inconsistencies, exaggerations or embellishments are inevitable. It was further held that a discrepancy existing in a prosecution case should not weigh with the Court so long it does not materially affect the case. It was further held that the duty of the Court is not only to see that no innocent man should be punished but also to ensure that no person committing an offence should get scot-free. It was also held that even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of number of other co- accused persons, his conviction could be maintained.
15. It is next argued that other witnesses to the recovery are not examined in this case and that PW 2 Naresh Kumar and PW-6 Satish Kapoor are interested witness being representative of IPI. This arguments is also without force as it is not the quanti- ty of evidence which matters in a criminal case but it is the quality of evidence which matters. What is to be seen is whether the witness examined by prosecution were trustwor- thy and the number of witnesses are not to be counted. Sec- tion 134 of the Indian Evidence Act clearly provides that no particular number of witnesses in any case be required for the proof of any fact. Thus a conviction can be based on soli- tary witness which is trust worthy and what matters is quality of evidence and not quantity.
In AIR 2005 SUPREME COURT 2503 Seeman alias Veer-
JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 15 of 22/K anam, Vs. State by Inspector of Police, It was observed in Para 4 "It is now well settled that the evidence of witness can- not be discarded merely on the ground that he is a relat- ed witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totali- ty. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the inter- ested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evi- dence of the interested sole witness. The prosecution's non- production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to dis- credit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
Similarly in the case of State of U.P. vs. Anil Singh AIR 1988 Sc 1998 it was held that in some cases the entire prosecution case is doubted for not examining all wit- nesses to the occurrence. We have recently pointed out to the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to re- ject the prosecution version only on the ground that all wit- nesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by indepen- dent witnesses if the case made out is otherwise true and ac- ceptable.
JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 16 of 22/K
16.In the present case, I have already mentioned above that there is nothing on record to suggest untrustworthiness of the wit- nesses including police officials. Although the accused in his statement claimed that he is innocent and that case property was planted upon him by the police but the defence taken by the accused does not inspire any confidence whatsoever. It would be anybody guess as to why police officials would do this. If the accused want this court to believe that he has been implicated falsely, the least which was expected from the ac- cused was to at least come out as to what could have been the motive for the police for his false implication and as to what was that reason for which police official could have done so. But no such reason is even mentioned or suggested to the wit- nesses. The accused cannot expect this court to believe his version by simple bare allegation that he is falsely implicated. At least some reason should have been put forth by the ac- cused to suggest as to what could have been motive of the po- lice in implicating them. In the absence of this, I do not find any reason to throw out the testimony of witnesses.
17.In view of my above discussion, I am satisfied that the prosecution has been able to prove its case against the accused beyond reasonable doubt. Prosecution has been successful in proving its case that above mentioned infringed articles were recovered from the possession of accused from his Paschim Vihar address and also from Pandav Nagar premises.
18.The case of prosecution is that the accused infringed the copy- right by reproducing the audio cassettes for sale or hire and the copyright in the music work of those movies existed with various member music companies of IPI who had received the copyright from the author of the music work by virtue of as- signment deeds. The case of prosecution against the accused is that the accused sale or hire reproduced the copies of music audio cassettes which were infringed and which were not re-
JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 17 of 22/K produced or copied by the copyright holder or licensee of the copyright holder of the music work.
19. Section 13 of The Copyright Act 1957 provides, that a copyright shall subsist throughout India in music work besides literary , dramatic, artistic work and the cinematography films. It also provides that copyright shall subsist throughout India in the sound recording. Sub section (3) of section 13 further pro- vides, that copyright shall not subsist in sound recording made in respect of a literary , dramatic or musical Work if in the making of sound recording copyright in such work has been in- fringed. In the present case there is no such evidence on record that in making of the sound recording by the original copyright holder, the copyright in any literary dramatic on mu- sical Work in respect of which the sound recording is made was infringed by the composer/author of the work.
20. Section 14 of The Copyright Act 1957 further provides, that copyright means the exclusive right to do or authorise the doing of any of the acts specified in that section in respect of work or any substantial part thereof. Clause (c) of section 14 specifically provides that in case of a sound recording copyright means exclusive right to make any other sound recording embodying it; and also exclusive right to sell or give on hire or, offer for sale or hire any copy of the sound recording, regardless of whether such copy has been sold on given on hire on earlier occasions. It further provides that copyright means the exclusive right of communicating the sound recording to the public.
21. Section 2 (m) of the Act provides, that an infringing copy in relation to a sound recording means, any other recording embodying the same sound recording, made by any means.
22.Thus when the accused in the present case reproduced sound recording in the music work in the audio cassettes and had in JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 18 of 22/K his possession for sale or hire the copies of such sound record- ing the same amounts to infringement and it is regardless of the fact whether the accused had possession of those audio cassettes which contained the particulars of the member music companies of IMI.
23. Section 51 of The Copyright Act 1957 provides, that copy- right in a work shall be deemed to be infringed when any person by way of trade exhibits in public or makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire any infringing copies of the work.
24.Section 63 of The Copyright Act 1957 makes punishable of- fence of infringement defined in section 51 of the said Act and it provides that when any person knowingly infringes or abets the infringement of the copyright in a work he shall be pun- ished with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two Lakhs Rs on first conviction.
25.The arguments of Ld. Counsel for accused that there is no complainant of copyright holder in the present matter and therefore the case could not have been investigated is without any force. The offences u/s 63 and 68-A Copyright Act are both cognizable offences and, in a cognizable offence there is no le- gal requirement that police cannot investigate without proper complaint or without orders of the court. A police officer who receives information regarding commission of a cognizable of- fence can investigate the matter directly. In the present case, the information which was received by police was regarding infringement of audio recordings of various movies and infor- mation was not regarding infringement of any particular copy- right owner. In such circumstances, this argument is absolute- ly without any force.
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26. The next contention raised is that there is no decoy customer sent to the shop or that there was no customer present in the shop therefore there is no material with the prosecution that articles were meant for sale, is also without any force. Section 51 of the Copyright Act, 1957 defines as to what infringement is and when copyright is deemed to be infringed. It provides that copyright in a work shall be deemed to be infringed when any person makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire any infringing copies of the work. Therefore under clause (b) of section 51 of Copyright Act, 1957, mere making of , and mere displaying by way of trade or offering for sale or hiring infringing copies is deemed to be infringement. In the present case, it is specifical- ly deposed by the prosecution witnesses that recording ma- chine was also recovered which shows that the accused was in the business of making copies of audio cassettes. Even other- wise, there is no justification by the accused regarding posses- sion of such huge quantity of audio cassettes various songs of Hindi movies. Recovery of such huge quantity of these articles gives rise to a legitimate presumption that it were meant for sale/ hire and nothing else. In all probability, these articles were meant for sale/hire only and nothing else. Therefore there is deemed infringement u/s 51 of the Act
27. The audio cassettes which were recovered were not containing mandatory particulars as required u/s.52-A of Copyright Act, 1957, which provides that in the case of audio/sound recording, the work ought to contain the particulars which should be displayed on the sound recording and on the container thereof i.e. name and address of the person who made sound recording; name and address of owner of copyright; year of its fist publication. But these particulars were lacking on the audio cassettes recovered from the accused. Section 52A of The Copyright Act provides, that JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 20 of 22/K in respect of sound recording no person shall publish a sound recording in respect of any work unless it displays the name and address of the person who made the sound recording, the name and address of the owner of the copyright in such work, and the year of its first publication.
28.In the present case the audio cassettes which are recovered are sound recording and it does not contain the mandatory particulars as described above and therefore the accused is also liable for punishment under section 68A of the Copyright Act which makes punishable the offence described in section 52A of The Copyright Act 1957. Section 68 A provides, that any person who publishes a sound recording in contravention of the provisions of section 52A shall be punishable with im- prisonment which may extend to three years and shall also be liable to fine.
29. It may be mentioned here that in the case of State of Andhra Pradesh Vs. Nagoti Venkataramana IV(1996) CCR 42 (SC) the following observations were made by Hon'ble Supreme Court:- ownership by the author of the pirated arti- cles are not required for the purpose of trial for offence u/s 68A Copyright Act.
30.Besides this, from the possession of accused recording instruments which falls within the definition of 'duplicating equipment' as defined in section 2(hh) and, 'plate' as defined in section 2(t) of the Copyright Act, 1957, was recovered. Therefore, the prosecution succeeded in proving its case against the accused the offence u/s.65 of Copyright Act, 1957 also.
31.Besides this the accused was also found in possession of a recording machine. Section 65 of The Copyright Act provides that any person who knowingly makes, or has in his possession any plate for the purposes of making infringing copies of any work in which copyright subsist shall be punishable with im-
JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 21 of 22/K prisonment which may extend to two years and shall also be li- able to fine.
32. Section 2(t) of The Copyright Act defines 'plate' as includ- ing any 'duplicating equipment' or other devices which is used or intended to be used for printing or reproducing copies of any work and any matrix or other appliance by which sound recording for the acoustic presentation of the work are intend- ed to be made on are made.
33. Section 2(hh) of the Copyright Act defines a 'duplicating equipment' means any mechanical contrivance or device used are intended to be used for making copies of any work.
34.In the present case from the possession of the accused a recording machines which falls within the definition of a dupli- cating equipment was recovered which is used for reproducing copies of the audio cassettes and therefore the accused is also liable to be punished for the offence under section 65 of The Copyright Act 1957.
35. The accused also infringed the copyright of the audio cassettes as discussed above. Accordingly the prosecution is also succeeded in proving its case against the accused u/s.63 of the Copyright Act, 1957. In view of the above, the accused is found guilty and convicted for the offences u/s.63,65 & 68A of the Copyright Act, 1957.
ANNOUNCED IN OPEN COURT ON 23rd May, 2009 DIGVINAY SINGH ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-03 (IPR),ROHINI,DELHI JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 22 of 22/K