Bangalore District Court
Stephan Rj R vs Pulak Banik Alias Owner Of The Shyam ... on 3 January, 2024
1
KABC030338402019
Digitally signed
by R MAHESHA
R
Date:
MAHESHA 2024.01.03
18:00:19 +0530
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU.
Dated this the 3 rd day of January 2024
Present : Sri.R.Mahesha.
B.A.L., LL.B.,
IX Addl.C.M.M., Bengaluru.
JUDGMENT
1.C.C.No. 10644/2019
2.Date of offence 19.11.2018
3.Complainant State by Hanumantha Nagar
Police Station.
4.Accused 1. Pulak Banik
2. Sardarmal
Both R/o. Bengaluru.
2
5. Offences U/Sec.51(B), 63 of Copyright Act.
complained of
6.Plea Accused No.1 & 2 pleaded not
guilty.
7.Final Order Accused No.1 & 2 are
acquitted.
8.Date of Order 03-01-2024.
The Police Sub-Inspector of Hanumanthanagar Police Station, Bengaluru has filed this charge sheet against the accused for the offence punishable U/Sec.51(B), 63 of Copyright Act.
2. The brief facts of the prosecution case is that, on 19/11/2018 at about 4.15 pm within the limits of Hanumanthanagar Police Station, situated at No.1189, Shyam Sundar Automobiles and Prem Automobiles, Ashok Nagar, Shankarnag Circle, Bengaluru, complainant - 3 Sri.Stephan Raj Investigation Officer of EIPR India Private Limited the accused persons were manufacturing of spurious/counterfeit TVS Motors Limited spare parts without obtaining any permission from complainant, the authorized officer of the said company and mis-utilized the same without obtaining any permission from the complainant and were selling the same to the public and cheated the company and also public. Hence, CW.1 lodged first information. The Station House Officer registered a case in Cr No.306/2018 for the offences punishable u/Sec.51(B), 63 of Copyright Act, and submitted First Information Report to this Court. After investigation, Police Inspector of S J Park Police Station filed charge sheet for the said offences punishable u/Sec.51(B), 63 of Copyright Act and Sec.420 of IPC against the accused No.1 and 2. Hence, they have committed the alleged offences. 4
3. Accused No.1 and 2 are on bail. On receipt of charge sheet, this court took the cognizance of the alleged offences and furnished copy of the prosecution papers to the accused No.1 and 2. After hearing on charge, this Court has framed charge for the offences punishable U/Sec.51(B), 63 of Copyright Act and Sec.420 of IPC for which accused No.1 and 2 pleaded not guilty and claimed to be tried.
4. The prosecution, in order to prove its case, has examined 2 witnesses as PW.1 and 2 and got marked documents at Ex.P.1 to 6 and MO.1 to 4 and closed the side of the prosecution evidence, and Statements u/Sec.313 of Cr.P.C. recorded, read over and explained in the vernacular language of the accused No.1 and 2, wherein accused No.1 and 2 have denied the incriminating 5 circumstances appeared against them as false and did not choose to lead defence evidence. As such, the matter was posted for arguments.
5. I have heard the arguments on both sides.
6. The points that arise for my consideration are as under:
(1) Whether the prosecution proves beyond reasonable doubt that on 19/11/2018 at about 4.15 pm within the limits of Hanumanthanagar Police Station, situated at No.1189, Shyam Sundar Automobiles and Prem Automobiles, Ashok Nagar, Shankarnag Circle, Bengaluru, complainant -
Sri.Stephan Raj Investigation Officer of EIPR India Private Limited the accused persons were manufacturing of spurious/counterfeit TVS Motors Limited spare parts without obtaining any permission from complainant, the authorized officer of the said company and mis-utilized the same without obtaining any permission from the complainant and were selling the same to the public and cheated the company and also public and thereby committed an offences punishable 6 u/Sec.51(B), 63 of Copyright Act and Sec.420 of IPC ?
2 ) What order ?
7. My findings to the above points are as under:
Point No.1 : In the Negative, Point No.2 : As per final order, for the following:
REASONS
8. Point No.1 :- It is well settled that in a criminal case the entire burden of proof rests upon the prosecution and the accused need to prove nothing. Suffice for the accused to create doubt about the case of the prosecution and the reliability of the witnesses for the prosecution.
9. The main allegation of the prosecution is that on 19/11/2018 at about 4.15 pm within the limits of Hanumanthanagar Police Station, situated at No.1189, Shyam Sundar Automobiles and Prem Automobiles, Ashok 7 Nagar, Shankarnag Circle, Bengaluru, complainant - Sri.Stephan Raj Investigation Officer of EIPR India Private Limited the accused persons were manufacturing of spurious/counterfeit TVS Motors Limited spare parts without obtaining any permission from complainant, the authorized officer of the said company and mis-utilized the same without obtaining any permission from the complainant and were selling the same to the public and cheated the company and also public. As already stated supra, the prosecution has examined 2 witnesses as PW.1 and 2 and documents got marked as Ex.P.1 to 6 and MO.1 to 4.
10. The prosecution has been examined CW.1 as PW.1, he being Investigation Officer in EIPR Company and informant of this case. He specifically testified before 8 this Court that during his survey he got credible information regarding sale of TVS motor cycle spare parts in T R Nagar in different shops. Therefore, he lodged FIS before Station House Officer of Hanumantha Nagar police station on 19/1/2018 against the accused as per Ex.P.1. After that the police officers and 2 panchas came with CW.1 and they verified one Shamsundar Automobile shop and Frame Automobiles and they found spurious products of TVS company. Therefore, the Investigation Officer has seized spare parts of TVS motor cycle in the presence of panchas as per Ex.P.2. He identified the accused and documents MO.1 to 4.
11. The prosecution has been examined CW.7 as PW.2 being Investigation Officer of this case. He specifically testified before this Court that on 19/11/2018 when he 9 was in Station House Officer duty CW.1 came and gave written complaint against the accused and verified the case papers and registered case against the accused and he submitted original FIR to this Court and copy of the same forwarded to his senior police officers. He identified his signature which is bear in Ex.P.1. Further he deposed that after that he proceeded with CW.2 to 6 to one Shyamsundar auto mobile shop and Prem Automobile shop. He verified the said shops and found counterfeit products of TVS company. Therefore, he seized said products by drawing Ex.P.2 and he seized five Rs.500/- notes from the possession of accused. After that he came back with seized articles and accused persons, he registered seized articles in property register and same reported to this Court and he arrested the accused persons and followed guidelines of Hon'ble Apex 10 Court and he recorded the voluntary statements of both accused and he recorded the statements of CW.2 to 6. He identified documents i.e. Ex.P.3 to 5 and MO.1 to 4 and both accused.
13. On perusal of oral and documentary evidence it appears that CW.1 being attorney holder and Investigation Officer in EIPR India Private Limited Company he lodged FIS before the Station House Officer of Hanumanthanagar police station stating that on inforamtion he made enquiry in and around Bengaluru city and traced the sale of counterfeit TVS motors spares at Shyamsundar automobile No.1189, 80 feet road, X Cross, Ashoknagar, Shankar Nag Circle, Bengaluru and Prem Automobile 80 feet road, Vidyapita circle, BSK 1 st stage, Bengaluru and they were selling the duplicate items cheating the public and causing loss to the 11 company. Therefore, the accused has violates and mis- used TVS motor Company copyright. Hence, he lodged Ex.P.1 against accused No.1 and 2. Upon the Ex.P.1 the police officers and 2 panchas were proceeded and caught accused by name Pulakbanik owner of Shyam Sundar automobile and Sardarmaal owner of Prem automobile at their shops. The Investigation Officer of this case drawn seizure panchanama as per Ex.P.2 in the presence of panch witnesses i.e. CW.2 to 6 he seized MO.1 to 4. In the cross-examination pw.1 clearly admitted he saw the accused persons on 19/11/2018 at their shops before that he has not seen the accused persons. Further it is elicited in the cross-examination that while lodging FIS he got documents, genuine products of TVS company products purchased by the accused, he handed over invoice to police officers. Further he admitted in his 12 cross-examination that before lodging FIS i.e. prior to 15 days of lodging FIS he purchased products from the shop of accused. Further it is elicited in the cross-examination of pw.1 that they went to shop total 5 members, one Harish is his colleague after seize of products they sent to company for technical analysis. Further it is elicited in his cross-examination that the police officers have took panchas from the police station he unable to say the names of panchas. Further he admitted that during his survey he could not find out who supplied products to the accused. Further it is elicited in his cross- examination that the Investigation Officer of this case as made as witness one Manager, TVS company in his charge sheet. Further it is elicited in the cross- examination of pw.2 that CW.1 has not brought any documents at the time of lodging FIS and 7 members 13 were went to raid and he is not investigated MO.2 to 4 i.e. counterfeit products are where and whom were produced them and he is not took any neighbours and local residents of said shops as panchas to Ex.P.2. Further It is relevant to note that the prosecution in order to bring home the guilt of accused has cited CW.1 to 7, out of which the prosecution has been able to examined pw.1 and 2, rest of prosecution witnesses i.e. CW.2 to 6 are not yet stepped into witness box. Therefore, this Court took prayer of learned Sr.APP rejected and CW.2 to 6 are dropped out vide order dated 11/7/2023. On careful scrutize of pw.1 and 2 it appears that pw.1 specifically deposed he saw accused prior to lodging of FIS i.e. prior to 15 days in their shop and he purchased products from the both shops at the time of lodging FIS he handed over documents, original products of TVS company, products 14 purchased by accused shops and invoice to CW.7 along with Ex.P.1. But CW.7 specifically admitted before this Court that he is not received documents original products of TVS company from CW.1. Further PW.1 clearly admitted that the seized articles sent to the Manager, TVS company for technical analysis and he assessed the seized articles are counterfeit products of TVS company and Investigation Officer has made the said Manager TVS company as witness in his charge sheet. To the contrary, CW.7/PW.2 clearly admitted he is not sent seized articles to TVS Company and he is not made Manager TVS Company as witness in the instant case. So from the evidence of pw.1 and 2 it appears that many contradictions, omissions and improvements. Furthermore, it could not possible to understand how Investigation Officer of this case came to conclusion 15 without verified original products of TVS company or without sent seized articles to TVS company how he came or ruled out the seized articles are counterfeit products of TVS company. The prosecution has failed to prove contents of Ex.P.1 so its creates serious doubt regarding the version of prosecution. Therefore, this court clearly held that prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I answer Point No.1 in the negative.
14. Point No.2 : For the aforesaid reasons, I proceed to pass the following:
ORDER Acting under Section 248(1) of Cr.P.C., accused No.1 and 2 are hereby acquitted of the offences punishable u/Sec. 51(B), 63 of Copyright Act and Sec.420 of IPC. 16 The bail bonds and surety bonds executed by accused No.1 and 2 shall continue for a period of two months from the date of this order and thereafter same shall stands cancelled automatically. The cash i.e. Rs.2,500/- item No.1 and 2 seized in PF No.80/2018 shall be confiscated to State, after appeal period is over.
The seized properties in PF No.80/2018 item No.3 and 4 shall be destroyed as worthless after the appeal period is over.
(Dictated to the stenographer directly on computer, corrected directly on computer and then pronounced by me in open court on this the 3 rd day of January 2024).
(R.Mahesha) IX Addl.Chief Metropolitan Magistrate, Bengaluru.
17ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
PW.1 : Stephan Raj PW.2 : R.Kambaiah. LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION: Ex.P.1 : Complaint Ex.P.2 : Panchanama Ex.P.3 to 5 : Documents Ex.P.6 : FIR.
List of material objects marked on behalf of the prosecution:
MO.1 to 4 : Cash & spare parts.
List of witnesses examined on behalf of the defence:
NIL List of documents marked on behalf of the defence:
NIL List of materials marked on behalf of the defence:
NIL.
IX ADDL.C.M.M. Bengaluru.18
Judgment pronounced in the open court (Vide separate order) ORDER Acting under Section 248(1) of Cr.P.C., accused No.1 and 2 are hereby acquitted of the offences punishable u/Sec. 51(B), 63 of Copyright Act and Sec.420 of IPC.
The bail bonds and surety bonds executed by accused No.1 and 2 shall continue for a period of two months from the date of this order and thereafter same shall stands cancelled automatically.
The cash i.e. Rs.2,500/- item No.1 and 2 seized in PF No.80/2018 shall be confiscated to State, after appeal period is over. The seized properties in PF No.80/2018 item No.3 and 4 shall be destroyed as worthless after the appeal period is over.
IX ADDL.C.M.M. Bengaluru.
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