Delhi High Court
Sunil Kumar Gupta & Anr. vs State on 13 August, 1998
Equivalent citations: 74(1998)DLT838, 1998(46)DRJ702
Author: J.B. Goel
Bench: J.B. Goel
JUDGMENT J.B. Goel, J.
By this petition under Section 482 of the Code of Criminal Procedure (for short 'the Code') the petitioner seeks quashing of order dated 5.10.1996 passed by the learned Addl. Chief Metropolitan Magistrate (ACMM) dismissing his plea to discharge him in pursuance of the directions of the Hon'ble Supreme Court in the case of Common Cause Vs. Union of India & Others, II (1996) CCR 180 (SC) on account of delay caused in trial.
2. A complaint was filed by the respondent Jay Engineering Works Ltd. (for short 'the complainant') to the effect that they were the registered owners/proprietors of the Copyright of two artistic works of "USHA" registered in their favour on 24.3.1970 and 13.9.1979 under the Copyright Act (for short "the Act") and thus had the exclusive right to reproduce the said artistic works in any material form. They found that the petitioners were manufacturing/selling electric churners (madhani) illegally using the logo "USHA" in the same artistic manner in which it was registered in the name of the complainant and the petitioners had thereby committed the criminal offence punishable under Section 63 of the Act and under Section 468 of the Indian Penal Code. On the basis of that complaint, FIR No. 330/89 was registered at Police Station Kotwali and in due course a report under Section 173 of the Code was submitted against the petitioners. Initially a learned Metropolitan Magistrate took cognizance of the case under Section 63 of the Act on 30.3.1991 and summoned the accused persons for 28.6.1991. However the offence was punishable with fine which was beyond his jurisdiction and the case was withdrawn by the learned Chief Metropolitan Magistrate and was assigned to the Court of A.C.M.M. The petitioner appeared in that Court on 1.7.1991. Since then the case has been adjourned from time to time and even charge has not been framed. The case was fixed for arguments on charge on 2.9.1996 when an objection was taken on behalf of the petitioners that the case was covered by the aforesaid judgment of the Hon'ble Court in the case of Common Cause (supra) and he was entitled to be discharged as even trial has not commenced after 5 years. The learned A.C.M.M. vide his order dated 5.10.1996 came to the conclusion that this case was not covered by the aforesaid judgment of the Supreme Court and rejected that plea. The petitioner being aggrieved against that order has filed the present petition.
3. I have heard learned Counsel for the parties. Learned Counsel for the petitioner has contended that the case is squarely covered by the aforesaid decision of the Hon'ble Supreme Court inasmuch as the offence was punishable with imprisonment for 3 years and fine; that the delay was not for any cause attributable to the petitioner and since charge has not been framed the learned Trial Court acted illegally in not discharging the petitioner. He also contends that it is not a case falling in the category of "cheating" or of an "economic offence", inasmuch as the essential ingredient of inducement in a charge of cheating is not there and also this offence has no effect on the economy of the State.
4. Whereas learned Counsel for the State has contended that this case falls in the category of the offence of cheating because the petitioner has copied the copyright of another person with a view to make wrongful gain for himself and wrongful loss to the proprietor of the copyright and also thereby making a misrepresentation to the ultimate consumer that the goods are manufactured by the same person who is the owner of the registered copyright. The word cheating contemplated in the Common Cause case (supra) is used in wider term and would include this offence as well. It is also contended that substantial part of delay caused before the Trial Court is because of usual dilatory tactics adopted by the petitioner and there is no illegality or infirmity in the order passed by the learned Trial Court and it is valid.
5. The complainant claims copyright in two artistic works in the mark "Usha" depicted in a particular design. Section 14 of the Act defines "Copyright" as the exclusive right to do or authorise the doing of, inter alia (i) to reproduce the work in any material form; (ii) to communicate the work to the public.
6. And under Section 13 of the Act the copyright subsists throughout India in respect of that artistic work.
7. Copyright is an "intellectual property". Basically it means the right to copy or reproduce the work in which copyright subsists. Object of the copyright law is to protect the exclusive right of the author of the copyright work from an unlawful reproduction or exploitation of his work by others. Copyright serves a variety of industries including manufacturing industries as well as commerce and trade.
8. It is a monopoly right granted for the purpose of preventing persons from unfairly availing themselves of the benefits of the labour skill and money spent by others in acquiring this monopoly right.
9. Copyright law confers upon the owner of the work a bundle of exclusive rights which enables him to get financial benefits by exercising such right. A person who violates this right of others without a licence from the owner is guilty of the offence of its infringement.
10. When a copy right is used in relation to a commercial article or industrial product it identifies the product of a particular manufacturer or trade and it becomes an inseparable part of the goodwill of his business. It identifies the source or origin of the product to the ultimate consumer or the purchaser.
11. When another trader or manufacturer imitates other's copyright, he thereby makes a misrepresentation about the source or origin of the product to the immediate purchaser and the ultimate consumer and he does so with a view to make wrongful gain for himself and it results in a wrongful loss to the owner and at the same time deception to such purchaser or consumer.
12. In other words, the infringer of the copyright of others exploits the goodwill of the product of others to his own benefit at the cost of that other.
13. In the present case the complainant is the proprietor/owner of two registered copyrights having particular design, used by them in connection with their products, industrial or commercial. Their products sold with the design of their copyright would acquire commercial reputation about its quality and source of its manufacturer or supplier to the public at large.
14. The petitioner and for that purpose any other trader who has copied the copyright would be deriving monetary benefit for himself at the cost of the author of the copyright who has spent money, labour and skill to make his products a marketable commodity.
15. Illustration (c) to Sec. 415, IPC reads "A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article, A cheats".
16. The petitioner is alleged to have adopted the identical copyright of the complainant and is selling his product "madhanis" using the design of the copyright of the complainant.
17. The intention of the petitioner apparently is to derive economic benefit to himself and at the same time he is making a false representation about the source or origin of the product and thereby is deceiving the public at large who may buy his product by using the infringing design of the copyright of the complainant. This necessarily will result in wrongful gain to him and wrongful loss to the complainant and amounts to cheating. Case of cheating is an excepted category contemplated in para 4 of the Supreme Court judgment in Common Cause Vs. Union of India (supra).
18. It may also be an economic offence. When a manufacturer or trader infringes the copyright or design of someone else he does so to pass off spurious goods or goods of inferior quality as the goods of superior quality of the latter. This piracy if allowed will adversely affect the trade, commerce and industrial production of the country and thereby will adversely affect the economy and the revenue of the State. This would thus also fall in the category of economic offence. Economic offences are also excepted under para 4 of the aforesaid judgment.
19. For these reasons no interference in the impugned order by this Court is called for.
20. This petition is accordingly dismissed.
21. The stay granted is hereby vacated. The Trial Court shall proceed for trial expeditiously. The Trial Court record be returned forthwith.
22. Parties shall appear before the Trial Court concerned on 31.8.1998.