Delhi District Court
State vs . Dharmesh Gupta & Ors. on 19 March, 2012
IN THE COURT OF MS. KIRAN BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEI
EAST DISTRICT / KARKARDOOMA COURTS, DELHI
State Vs. Dharmesh Gupta & Ors.
FIR No: 219/2000
PS: Gandhi Nagar
U/s: 63/64 C. R. Act, 78/79 T. M. Act & 420/511 IPC
JUDGMENT
a). ID No. of the case : 02402R0054942001
b). Serial number of the case : 477/08
c). Date of commission of offence : 29.08.2000
d). Name of complainant , if any : Sh. Gulab Singh,
Legal Manager, Devyani
Beverages Ltd. at F34,
Sector6, Noida, U.P.
e). Name & address of accused : Dharmesh Gupta
S/o Late Sh. Ganga Prasad,
R/o H. No. 9/80A, Shyam Block,
Kailash Nagar, Delhi110031.
Manish Yadav
S/o Sh. Shyam Dev,
R/o H. No. 9/80A, Shyam Blcok,
Kailash Nagar, Delhi110031.
f). The offence complained of : U/s 63/64 C. R. Act, 78/79 T. M.
Act & 420/511 IPC
g). The plea of accused : Pleaded not guilty
h). Final order : Acquitted
i). The date of such order : 19.03.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The facts of the present case have been disclosed in the complaint of the complainant that on 29.08.2000 at about 05:00 pm at H. No. 9/80, Shyam Block, Gandhi Nagar both accused persons namely Dharmesh Gupta and Manish Yadav were found indulging in infringing of copy right of Devyani Beverages Ltd. by making spurious old Beverages and both accused were found in possession of plates for the purpose of infringing the copyright of the complainant and the possession of machine for falsifying and applying the trade mark belonging to the complainant and for selling the goods to which false trade mark were applied and thereby committed offences punishable U/s 63/64 C. R. Act & 78/79 T. M. Act. Moreover, both accused have manufactured spurious cold drinks belonging to the complainant in order to cheat the general public and thereby committed offences punishable U/s 420 r/w 511 IPC. On the complaint of the complainant, FIR No. 219/00, U/s 63/64 C. R. Act, 78/79 T. M. Act & 420 r/w 511 IPC was registered against both accused persons namely Dharmesh Gupta and Manish Yadav, investigation were carried out and challan was prepared and presented in the court after completion of the investigation.
2. Subsequent to the filing of challan, cognizance was taken. Thereafter, the charge for the offences U/s 63/64 C. R. Act, 78/79 T. M. Act & 420 r/w 511 IPC was framed on 10.07.2003 against both accused persons to which they pleaded not guilty and claimed trial and hence the matter was, thereafter, listed for PE.
3. With a view to establish its case, the prosecution has examined PW1 HC Sarfuddin who deposed that on 29.08.2000, he recorded FIR No. 219/00 vide Ex.PW1/A on the basis of rukka sent by ASI S. P. Muthu through Ct. Sunil Kumar. This witness was cross examined by Ld. Defence counsel.
4. PW2 Ct. Sunil Kumar who deposed that on 29.08.2000, he joined the investigation in the present case along with ASI Muthu, SI Vivek Tyagi, ASI Suresh, HC Rajender and other staff members of Special Staff. IO/ASI S. P. Muthu prepared rukka and handed over to him for registration of case FIR. He went to PS and got registered the FIR and came back at the spot alongwith the copy of FIR and original rukka and handed over the same to the IO. This witness was also cross examined by Ld. Defence counsel.
5. PW3 SI Suresh Kumar who deposed that on 29.08.2000, he along with IO S. P. Muthu, SI Vivek Tyagi, HC Rajender, HC Naresh, Ct. Desh Raj Ct. Sunil and Sh. Gulab Singh/complainant reached at H. No. 9/80, Shyam Block, Gandhi Nagar, Delhi after receiving a secret information by IO ASI S. P. Muthu regarding making duplicate cold/soft drinks in the fake name of Pepsi where accused who disclosed his name as Dharmesh was present and filling the fake bottles of Pepsi. One person who disclosed his name as Manish Yadav was also present there and he was helping to accused Dharmesh Gupta. They found there six carets of cold drinks make Pepsi, one caret of cold drink make Limca and some raw material in some jars. Some empty bottles of make Pepsi, Limca, Mirinda and Coke were also kept in 71 carets and some solution was also found there. Out of which 18 bottles of Pepsi and 3 bottles of Limca were taken out as sample. Thereafter, all case property were seized vide seizure memo Ex.PW3/A and sealed with the seal of DR. The machine was also seized vide seizure memo Ex.PW3/B and the room was locked and sealed with the seal of DR. Sample bottles of make Limca and Pepsi were seized vide seizure memos Ex.PW3/C & PW3/D and both were sealed with the seal of DR respectively. Videography of the spot was done and the cassette was seized vide seizure memo Ex.PW3/E and sealed with the seal of DR. Thereafter, IO prepared rukka which was handed over to Ct. Sunil for registration of case FIR. After registration of the FIR, he handed over the copy of FIR and original rukka to the IO. Personal search of both accused persons were conducted vide personal search memos Ex.PW3/F & PWE/G respectively. Thereafter, accused Dharmesh Gupta was arrested vide arrest memo MarkX and accused Manish Yadav was arrested vide arrest memo MarkX1. IO also prepared the site plan which is MarkX2. Disclosure statement of accused Dharmesh Gupta which is Ex.PW3/H was also recorded by the IO. This witness was also cross examined by Ld. Defence counsel.
6. Thereafter, after giving one last and final opportunity on 08.09.2011, no other witness was appeared therefore, the PE was directed to be closed vide order dt. 08.02.2012 and the matter was listed for recording of the statement of accused u/s 313 Cr.P.C.
7. Statement of both accused persons Dharmesh Gupta and Manish Yadav U/s 313 Cr.P.C were recorded separately without oath on 19.03.2012 and after putting all the incriminating evidence upon him to which they pleaded innocent and stated that nothing had been recovered from their premises and they have been falsely implicated in the present case. Accused did not prefer to lead defence evidence. The matter is, thus, listed for the purpose of final arguments and the arguments heard and entire record have been perused.
8. I have heard the submission of Ld. Sub. APP for the State and Ld. counsel for both accused persons. I have also carefully perused the record. The court has carefully examined the entire material available on record including the testimony of the PWs recorded before the Court. There are only three witnesses who have been examined in the present case. PW1 HC Sarfuddin who only recorded FIR No. 219/00 vide Ex.PW1/A on the basis of rukka. PW 2 Ct. Sunil Kumar who joined the investigation in the present case. IO/ASI S. P. Muthu prepared rukka and handed over to him for registration of case FIR. After got registered the FIR, he handed over the copy of FIR and original rukka to the IO. PW3 SI Suresh Kumar who along with IO S. P. Muthu, SI Vivek Tyagi, HC Rajender, HC Naresh, Ct. Desh Raj Ct. Sunil and complainant reached at the spot where accused Dharmesh was present and filling the fake bottles of Pepsi with the help of other coaccused Manish Yadav. Where IO/SI S. P. Muthu seized the case property i.e. recovered bottles vide seizure memo Ex.PW3/A. IO also also seized the machine vide seizure memo Ex.PW3/B and the room was locked. Sample bottles make Limca and Pepsi were seized vide seizure memos Ex.PW3/C & PW3/D. Videography of the spot was done and the cassette was seized vide seizure memo Ex.PW3/E. All the seized case property were also sealed with the seal of DR. Both accused were personally searched vide personal search memos Ex.PW3/F & PWE/G and arrested vide arrest memos MarkX & MarkX1. The site plan is MarkX2. Disclosure statement of accused Dharmesh Gupta which is Ex.PW3/H was also recorded by the IO.
9. I have no hesitation in holding that the prosecution has miserably failed to prove its case against both accused persons beyond all the reasonable doubts and to bring their acts and conduct within four corners of the said provisions of law constituting any of such offence or within legal ambit which would warrant his conviction and punishment in the present case. Despite the fact that the place of incident is a residential colony, no independent public person has been examined as witness. As per section 100 of Cr.P.C before making a search the officer is required to call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to the them or any of them so to do.
10.The IO has not been examined in the present case. PW3 in his cross examination, has stated that he could not tell as to how the case property was transported to the PS. Even the photographer who took the photographs at the spot has not been examined. Moreover, the videographer who did the videography of the case property and the spot has also not been examined. The lab report of the analyses of the bottles has also not been proved. No witness has been examined regarding the fact that the Trade Mark of the complainant company was duly registered. The arrest memo of the accused Manish Yadav which is mark X1. Perusal of the arrest memo shows that the time when the accused was arrested has been left blank by the IO. Similarly, the arrest memo of accused Dharmesh Gupta which is mark X and in this also the time when the accused was arrested has been left blank.
11.In view of the cardinal principle of law that prosecution must prove the guilt of both accused persons beyond all reasonable doubts and every benefit of doubt must be given to the accused persons, hence, both accused are entitled to every benefit arising out of lacuna's in the prosecution case.
12.In view of the above discussions, it is held that the prosecution has failed to prove its case against the both accused persons namely Dharmesh Gupta and Manish Yadav and has not been able to prove the charge for the offences U/s 63/64 C. R. Act, 78/79 T. M. Act & 420 r/w 511 IPC against them.
13.Accordingly, both the accused persons namely Dharmesh Gupta S/o Late Sh. Ganga Prasad and Manish Yadav S/o Sh. Shyam Dev are hereby acquitted for the offences punishable U/s 63/64 C. R. Act, 78/79 T. M. Act & 420 r/w 511 IPC. Their Bail Bonds stand cancelled. Surety Bonds stand discharged. Documents, if any, be returned after cancellation of the endorsement, if any, on property receipt and identification. Case property, if any, be confiscated to the State after the expiry of the period of the appeal. File be consigned to record room.
Announced in the open court today i.e. 19.03.2012 (KIRAN BANSAL) ADDL.CHIEF METROPOLITAN MAGISTRATE I:
EAST /KARKARDOOMA COURTS, DELHI