Bangalore District Court
And The Person Who Participated In The ... vs Before The Court Was In The Said Shop And ... on 20 February, 2015
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 20th day of February 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 19410/2012
2.Date of Offence 28-2-2012
3.Complainant State by Cottonpet Police Station
4.Accused Abhishek Jinendar Oswal S/o.
Jinendar Kumar, Aged 36 Years,
No.32, 13th Main, B.S.K 1st Stage,
Bangalore-50.
C/o. No.12, Ground Floor, Kothari
Printers, Sulthanpet, Balaji
Complex, Bangalore.
5. Offences complained U/s.63(b), 64 of Copyright Act 1957.
of
6.Plea Accused pleaded not guilty.
7.Final Order Accused is Acquitted
8.Date of Order 20-2-2015
REASONS
The Sub Inspector of Police, Cottonpet Police Station,
Bangalore has filed this charge sheet against the accused for
the offences punishable U/s. 63(b), 64 of Copyright Act 1957.
2 C.C.No.19410/2012
2. The brief facts of the prosecution case are that on 28-
2-2012 within the limits of Cottonpet Police station, in Kothari
Printers No.A-12, Balaji Complex, Sultanpet, accused was
using the SHREE-708E software over which Modular Infotech
Pvrt., Ltd., had copyright without obtaining any permission or
consent from the said company and was utilizing the said
software for his business purpose and earning the money from
the general public as if he had permission from the copyright
holder and thereby cheated the copyright holder company as
well as general public and committed aforesaid offences.
3. The accused is on bail. On receipt of chargesheet this
court took cognizance of the offence and furnished the copies
of the prosecution papers to the accused. After hearing on
charges, this court framed the charge for the offences
punishable U/s. 63(b) of Copyright Act 1957 and Sec.420 of
IPC and questioned the accused regarding the charge made
against him, he denied the charge and claimed to be tried.
4. The prosecution in order to prove its case got
examined 2 witnesses as PW 1 and 2 and got marked 8
documents at Exs.P.1 to Ex.P.8 and also marked four material
objects as per MO 1 to 4. Since CW 2 to 4 and 6 to 13 did not
turn up before this court, by rejecting the prayer of Sr.APP,
this court dropped the examination of said witnesses.
3 C.C.No.19410/2012
5. Thereafter, this court examined the accused as
required U/s.313 of Cr.P.C., 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 two witnesses. PW 1 P.N.Venakatesh is the police
sub inspector who conducted the raid. PW 2 Shankar is the
complainant and the person who participated in the raid. It
appears inspite of giving sufficient opportunities the
prosecution has not examined other witnesses on record.
8. The testimony of PW2 Shankar the managing executive
officer of perfect anti-piracy course department indicating that
on 28-2-2012 he received information that the owner of
Kothari Printers without license was using the software of his
company. Accordingly, on the same day at 12.00 PM he
visited cottonpet Police station and lodged the complaint.
After lodging of the complaint the said cottonpet police took
him, his assistant CW 4 to the said Balaji Complex were
Kothari Printers is located. They found one Abhishek Voswal
in the said printers. The police informed the said person the
purpose of their visit. His assistant CW 4 asked the said
Abhishek Oswal to open his computer. Accordingly, the said
4 C.C.No.19410/2012
Abhishek Oswal opened the computer and found the software
Shri Lipi belonged to Modular Infotech Pvt., Pune. The police
asked the said Abhishek Oswal whether he had any license to
use the said software. But the said Abhishek Oswal pleaded
no. Accordingly, they took the printout of said software from
computer of said Abhishek Oswal, prepared the mahazar and
seized the computer. His testimony further indicating that
except himself CW 4 and police, no other persons were in the
spot while conducting the raid. Since PW 1 has not fully
supported the case of the prosecution he has been treated as
hostile. In the cross examination PW 1 has denied the
suggestion that at the time of conducting the raid the panch
witnesses and other police staff are also participated. However,
he admitted the suggestion that on 28-2-2012 between 3 to 4
PM., the police have prepared the seizure mahazar. He further
specifically denied the suggestion that one Jagadish and
Murthy have affixed their signature as an independent
panchas. However, he admitted the seizer of CPU, Monitor,
Keyboard and one mouse. He voluntarily stated that he
couldn't remember whether the police have seized the said
CPU, Monitor, Keyboard and one mouse. PW 1 was subjected
to cross-examination by learned counsel for the accused.
9. PW 1 P.N.Venkatesh the ASI of Cottonpet Police
station has deposed that on 28-2-2012, CW 8 the police
Inspector of his Police station took him, his other staff near
5 C.C.No.19410/2012
Kothari printers situated at Sulthanpet. CW 8 has conducted
the raid and seized Sri 708E software from the computer. The
accused before the court was in the said shop and he was
asked as to whether he had any license to use the same, for
which the accused pleaded no. Thereafter, by preparing the
seizure mahazar seized Monitor, mouse and CPU. PW 1 has
admitted the presence of one Jagadish and Murthy at the time
of preparing the mahazar.
10. As stated above inspite of giving sufficient
opportunities, the prosecution has not examined other
witnesses on record. In a case like this an offences have to be
proved in a circumstantial evidence by way of proving the
seizure mahazar beyond all reasonable doubt. Further
prosecution has to prove that the Infotech Moduler Pvt., Pune
had copyright over software by name Sri.708E. Further the
prosecution has to prove that the accused without obtaining
any license or permission from the copyright holder was using
the said software. Further the prosecution has to prove that
the accused in the owner of the Kothari Printers.
11. As stated above the prosecution to prove seizure
mahazar has examined PW 1 and 2. Though PW 1 deposed
regarding conducting of the raid, he has not supported the
case of the prosecution for the reason that he denied the
presence of independent seizure mahazar witnesses at the
6 C.C.No.19410/2012
time of preparing of seizer mahazar. Whereas as per the
testimony of PW 2 the seizure mahazar was conducted in the
presence of independent seizure mahazar witnesses i.e. before
CW 2 and 3. Therefore, the testimony of PW 1 and 2 is not
trusty worthy to believe to come to the conclusion that the
prosecution has proved the seizure mahazar beyond all
reasonable doubt. In my opinion, in order to believe the
testimony of PW 1 and 2, independent corroboration is
necessary. Unfortunately, the prosecution has not examined
the independent seizure mahazar witnesses and also the
Investigating Officer who prepared the seizure mahazar.
Therefore, the prosecution has failed to prove the seizure
mahazar beyond all reasonable doubt.
12. It appears, the prosecution has not got marked the
copyright certificate of Sri Moduler Infotech Company Limited
to prove that the said company had copyright over software
Sri.708E. Further the prosecution has not examined any
witness to prove that the accused was unauthorizedly using
Sri.708E software without obtaining any license or permission
from the copyright holder. Further the prosecution has not
got marked any documents and has not examined any
witnesses to prove that the accused is the owner of the Kothari
printers. Therefore, looking from any angle, I am of the
considered opinion that the evidence on record is insufficient
to come to the conclusion that the prosecution has proved its
7 C.C.No.19410/2012
case beyond all reasonable doubt. Accordingly, the accused is
entitled for benefit of doubt. Hence, I proceed to pass the
following:
ORDER
This court did not found guilt of accused for the offences U/s.63 (b) of Copyright Act 1957 and Sec.420 of IPC.
Hence acting U/s.248(1) of Cr.PC. accused has been acquitted for the above referred offences.
His bail bond and surety bond stands cancelled. M.O 1 to 4 are confiscated to Government 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 20th day of February 2015) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
PW1 P.N.Venkatesh PW2 Shankar
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1 and 2 Copy
Ex.P.3 Complaint
Ex.P.3 (a) Signature
8 C.C.No.19410/2012
Ex.P.4 Mahazar
Ex.P.4(a) Signature
Ex.P.5 and 6 Complaint authority copy Ex.P.7 and 8 Registration copy LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION :
M.O 1 CPU, Monitor, Keyboard, and Mouse. to 4 LIST OF WITNESSES EXAMINED, DOCUMENTS & MATERIALS MARKED ON BEHALF OF THE DEFENCE: NIL IX ADDL.C.M.M. Bangalore.