Bangalore District Court
State By Kamakshipalya Police vs Person on 24 November, 2015
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 24th day of November 2015
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 1243/2014
2.Date of Offence 6-8-2012
3.Complainant State by Kamakshipalya Police
Station
4.Accused Mallesha
S/o Mahadeva Naik, aged 23 years,
rented in Lakshmipathi house,
Narasimhaiahnapalya, Magadi Main
Road, Sumanahalli, Bangalore.
5. Offences complained U/s.63(A), 68(A) of Copyright Act,
of 1957.
6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted
8.Date of Order 24-11-2015
REASONS
The Sub Inspector of Police, Kamakshipalya Police
Station, Bangalore has filed this charge sheet against accused
2 C.C.No.1243/2014
for the offences punishable U/s. 63 (A) and 68 (A) of Copyright
Act, 1957.
2. The brief facts of the prosecution case are that, on 6-8-
2012 at 8-30 p.m., on footpath near Kamakshipalya bus stand
located at Kamakshipalya, Magadi main road within the limits
of Kamakshipaly police station the accused was found in
possession and selling of pirated DVDs of Tamil, Telugu and
Hindi language films which did not the name and address of
the persons who published the video films, the endorsement
regarding certificate granted by the board of film certification,
the name and address of the person who has made the video
film and a declaration by name that he has obtained the
necessary license or consent from the owner of the copyright
in such work of making such video film and the name and
address of the owner the copyright in such work without
obtaining any license or written consent from the copyright
holder and further selling the same to the general public as if
the said DVDs are supplied by the copyright holder company
and cheated copyright holder company as well as general
public 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 the prosecution papers to the accused.
After hearing on charges, this court has framed the charge for
the offences punishable U/s.68(A), 63 of Copyright Act, 1957
3 C.C.No.1243/2014
and section 420 of IPC and read over to the accused in the
language known to him, he pleaded not guilty and claimed to
be tried.
4. The prosecution to prove the guilt against accused has
examined three witnesses as P.Ws.1 to 3 and got marked 4
documents at Exs.P.1 to Ex.P4 and also marked one material
object as per M.O.1. Since C.Ws.2 to 6 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 U/s.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 the arguments on both sides.
7. The prosecution to prove guilt against accused has
examined three witnesses. P.W.1 K.Narayana Gowda is the
police inspector who conducted the raid. P.W.2 Shivananda
Bevur is another police inspector who conducted investigation
and filed charge sheet. P.W.3 Rajanna is the head constable
who said to have participated in the raid. It appears, in spite
of giving sufficient opportunities the prosecution has not
examined the independent seizure mahazar witnesses,
4 C.C.No.1243/2014
eyewitness and the expert who gave opinion regarding seized
DVDs. I have carefully perused the evidence on record.
8. The testimony of P.W.1 indicating that on 6-8-2010 at
8-30 p.m., when he was on station duty, received credible
information regarding selling of pirated DVDs near Thirumala
Bar and Restaurant at Kamakshipalya bus stand. He
confirmed the said information and called C.Ws.2 and 3 as
panchas. Thereafter, he and said panchas along with his
police staff C.Ws.6 and 7 herein, visited said place and found
one person selling the some CDs by keeping on foot path. He
enquired the said person about any license or documents but
he pleaded no. He verified and found 350 DVDs of different
languages of films. He enquired the name, address of the said
person, and came to know as Mallesh son of Mahadeva Naik.
He seized 350 DVDs by preparing the seizure mahazar.
Thereafter, he along with seized DVDs and accused visited
police station and registered sumoto case. He arrested the
accused person, recorded his voluntary statement and sent
him to the judicial custody. Thereafter, he recorded the
statements of witnesses and handed over case papers to the
PSI of his police station for further investigation.
9. P.W.3 Rajanna the head constable who participated in
the raid has corroborated the testimony of P.W.1. His
testimony indicating that on 6-8-2012 at 8-30 p.m., when he
was on station duty P.W.1 took him, C.W.6 his colleague along
5 C.C.No.1243/2014
with two panchas to the Kamakshipalya bus stand. They took
custody of one person who was selling DVDs on footpath.
P.W.1 has seized DVDs of Mogudu, Rajanidhi Andrudu and
Pranam Telugu films and other film DVDs. P.W.1 enquired
the person from where he brought the same, for which he
stated that he purchased the same from one person of SP road
but he did not know the name of the said person. On
verification of DVDs, they found that the said DVDs not
contained the date of manufacture, maximum retail price, the
name of manufacturing company and accordingly he seized
the same by preparing the seizure mahazar.
10. P.W.2 the investigating officer has deposed that on
4-12-2012 he received the case papers and sent seized DVDs
to the super cassette industries for opinion. On 23-12-2013,
he received opinion and after completion investigation, he filed
charge sheet against accused. In my opinion, the evidence of
PW.2 is only formal one and need not required detailed
consideration.
11. In a case like this the offences has to be, proved in a
circumstantial evidence by way of proving the seizure mahazar
of seized DVDs beyond all reasonable doubt. Further the
prosecution has to prove that the seized DVDs are pirated
which did not contain the necessary particulars as required
under section 52(A) of the Copyright Act. Further, the
prosecution has to prove that some company or some person
6 C.C.No.1243/2014
had copyright over different language film of seized DVDs.
Further, the prosecution has to prove that the accused was
selling the seized DVDs on footpath near Thirumala Bar and
Restaurant at Kamakshipalya bus stand.
12. As stated above, the prosecution to prove the seizure
mahazar has examined two witnesses i.e., P.Ws.1 and 3.
Though P.Ws.1 and 3 were subjected to cross-examination by
the learned counsel for the accused, but nothing worth is
elicited from them to doubt their testimony. Admittedly, the
prosecution has not examined the independent seizure
mahazar witnesses. It appears even though the prosecution
has not examined independent seizure mahazar witnesses to
prove the same I have no reason to disbelieve the testimony of
P.W.1 in the matter of seizure who conducted the raid. Even
though P.W.3 not signatory to the seizure mahazar, still I
have, no reason to disbelieve his testimony whose testimony
corroborated to the testimony of P.W.1. No doubt, P.Ws.1 and
3 are the police officers and police staff their evidence is not
suffering from any infirmity and nothing animosity against
accused is elicited from them to say that they have deposed
falsely before the court. Therefore, from the evidence of P.Ws.1
and 3, I am of the considered opinion that the prosecution has
successfully proved the seizure mahazar of seized DVDs
beyond all reasonable doubt.
7 C.C.No.1243/2014
13. In my further opinion, mere proving the seizure
mahazar 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 sized DVDs are pirated.
The testimony of P.W.2 the investigating officer indicating that
on 4-12-2012 he sought opinion from super cassette
industries as to whether the seized DVDs are pirated and
accordingly, on 23-10-2013 he received said report. The
prosecution papers indicating that, C.W.4 Arun the senior
executive of anti piracy department has given report in respect
of seized DVDs but the said report is not marked in evidence.
In order to believe the report, examination of C.W.4 its author
is necessary. It appears, inspite of giving sufficient
opportunities, the prosecution has not examined the author of
report i.e., C.W.4 herein. The prosecution papers indicating
that the member companies of super cassette industries had
copyright over films of DVDs seized during the course of
investigation. Therefore, naturally super cassette industries
had interest over their member companies. Since P.W.4 is the
senior executive of super cassette industries naturally, he
gives report favour of his company only. Therefore, prima
facie the report sought from the super cassette industries is
not acceptable one. In my opinion, the investigating officer
ought to have obtained report regarding seized DVDs from the
independent expert but he has not done so for the reason best
known to him.
8 C.C.No.1243/2014
14. As stated above, even though the investigating officer
has obtained report regarding seized DVDs from C.W.4, to
prove the same the prosecution has not examined said C.W.4.
Therefore, the prosecution has failed to prove that the seized
DVDs are pirated which did not contain necessary particulars
as required under section 52(A) of Copyright Act.
15. Further, the prosecution has not examined any
witnesses and has not been marked any documents to prove
that the member companies of super cassette industries had
copyright over different language films of seized DVDs. It
appears the investigating officer during the course of
investigation has recorded the statement of C.W.5 who said to
have witnessed the act of selling the pirated DVDs by accused
but inspite of giving sufficient opportunities, the prosecution
has not examined C.W.5.
16. As per the case of the prosecution, the accused was
selling the DVDs on footpath near Thirumala Bar and
restaurant. In my opinion, the owner or any inmates of said
bar present at the time of conducting of raid is the competent
person to speak regarding selling of pirated DVDs by accused
on footpath. But investigating officer has not examined the
owner or any inmates of the Thirumala bar and restaurant
particularly at the time of raid to prove that the accused was
selling the pirated DVDs on footpath.
9 C.C.No.1243/2014
17. In my opinion, even though the prosecution to prove
guilt against accused has examined three witnesses it has
failed to link each circumstance to connect the accused for the
offences charged against him. Therefore, having regarding to
the facts and circumstances of the case and the discussions
made above, I am of the considered opinion that the evidence
on record is in sufficient to hold 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:
ORDER
This court did not found guilt of accused for the offences under section 63 and 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 the seized DVDs 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 24th day of November 2015) (J.V.Vijayananda) IX Addl.Chief MetropolitanMagistrate, Bangalore.
10 C.C.No.1243/2014ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1 K.Narayana Gowda P.W.2 Shivananda Bevura P.W.3 Rajanna
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1 Complaint Ex.P.1(a) Signature of P.W.1 Ex.P.2 Mahazar Ex.P.2(a) Signature Ex.P.3 FIR Ex.P.3(a) Signature of P.W.1 Ex.P.4 Report LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION :
M.O.1 DVDs LIST OF WITNESSES EXAMINED, DOCUMENTS AND
MATERIALS MARKED ON BEHALF OF THE DEFENCE:
NIL IX ADDL.C.M.M. Bangalore.