Bangalore District Court
K. Harish Kumar vs Dinesh on 15 February, 2024
1 CC No.17630/2019
KABC030556332019
Digitally signed
R by R MAHESHA
MAHESHA Date: 2024.02.16
11:44:07 +0530
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU.
Dated this the 15 th day of February 2024
Present : Sri.R.Mahesha.
BAL.LLB.,
IX Addl.C.M.M., Bengaluru.
CC No.17630/2019
1.C.C.No. 17630/2019
2.Date of offence 12/04/2018
3.Complainant State by Kalasipalya Police
Station.
4.Accused A1. Dinesh,
S/o Heera Lal,
Aged about 21 years,
R/at 2nd Cross,
Bapooji Nagar Main Road,
City Light, Mysore Road,
Bengaluru.
A2. Hanumana Patel,
S/o Ramalal Patel,
2 CC No.17630/2019
Aged about 28 years,
M/s. Sree.B.R.Auto Parts,
Shop No.S-4, 2nd Floor,
Sharada Complex, MM Road,
Kalasipalya, Bengaluru.
5. Offences U/Sec.51(b), 63 of Copyright Act,
complained of r/w section 420 of IPC.
6.Plea Accused No.1 & 2 are pleaded not
guilty.
7.Final Order Accused No. 1 & 2 are
acquitted.
8.Date of Order 15/02/2024.
JUDGMENT
The Police Sub-Inspector of Kalasipalya Police Station, Bengaluru has filed this charge sheet against the accused No. 1 & 2 for the offences punishable U/Sec.51(b), 63 of Copyright Act, r/w section 420 of IPC.
2. The brief facts of the prosecution case are as under:
It is the case of the prosecution that, on 12.04.2018 at about 3.30 pm within the limits of Kalasipalya Police station, at 3 CC No.17630/2019 BR Automobiles, Shop No.54, Sharada Complex, JC Road, Bengaluru . CW.1 represented by TVS MOTORS, HERO MOTO CORP AND BOSCH, the accused persons are manufacturing of spurious/ counterfeit spare parts without obtaining any permission from CW.1, the authorized officer of the said company and misutilized same and thereby violated the copyright of the company and also caused loss to it and cheated the company and public. In this regard, CW.1 lodged first information statement and based on the same FIR came to be registered in Cr.No.106/2018 for the offence punishable u/Sec. 63 of Copyright Act, 420, 511 r/w section 149 of IPC. Thereafter, CW.1 along with CW.2 to CW.7 and with panchas rushed to the spot and conducted raid and seized the alleged duplicate products by drawing panchanama. Thereafter, PI completed the investigation and filed the charge sheet against the accused No. 1 & 2 for the offences punishable U/Sec.51(b), 63 of Copyright Act, r/w section 420 of IPC. 4 CC No.17630/2019
03. After filing of the charge sheet this Court has taken the cognizance of the offences punishable under section U/Sec.51(b), 63 of Copyright Act, r/w section 420 of IPC and issued summons to the accused No.1 & 2. Accused have appeared before this Court through their counsel and obtained bail. The copy of the charge sheet has been furnished to the accused persons as per Sec.207 of Cr.P.C. After hearing both sides the charge has been framed and read over to accused. But they pleaded not guilty and claimed to be tried. Hence, the case has been posted for prosecution evidence.
04. The prosecution in order to prove its case, has examined five witnesses as PW.1 to 5 and four documents got marked as Ex.P.1 to Ex.P.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 & 2, wherein accused have denied the incriminating circumstances appeared against them as false and did not choose to lead defence evidence.
5 CC No.17630/2019
05. I have heard the arguments of both sides. Perused the entire oral evidence and documents placed on record.
06. The points that arise for my consideration are as under:
(1) Whether the prosecution proves beyond reasonable doubt that, on 12.04.2018 at about 3.30 pm within the limits of Kalasipalya Police station, at BR Automobiles, Shop No.54, Sharada Complex, JC Road, Bengaluru . CW.1 represented by TVS MOTORS, HERO MOTO CORP AND BOSCH, the accused persons are manufacturing of spurious/ counterfeit spare parts without obtaining any permission from CW.1, the authorised officer of the said company and misutilized same and thereby violated the copyright of the company and also caused loss to it and cheated the company and public and thereby committed an offences punishable U/Sec.51(b), 63 of Copyright Act, r/w section 420 of IPC ?
(2) What order ?
07. 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 : 6 CC No.17630/2019
REASONS
08. Point No.1 :- The prosecution has alleged that on, on 12.04.2018 at about 3.30 pm within the limits of Kalasipalya Police station, at BR Automobiles, Shop No.54, Sharada Complex, JC Road, Bengaluru . CW.1 represented by TVS MOTORS, HERO MOTO CORP AND BOSCH, the accused persons are manufacturing of spurious/ counterfeit spare parts without obtaining any permission from CW.1, the authorized officer of the said company and misutilized same and thereby violated the copyright of the company and also caused loss to it and cheated the company and public. Therefore, the burden is on the prosecution to prove guilt of the accused No1 & 2. As already stated supra, the prosecution has examined 5 witnesses as PW.1 to PW.5 and got marked four documents as per Ex.P.1 to Ex.P.4.
09. The prosecution has been examined CW.7 as PW.1, he being Police Officer and Investigation Officer of this case and CW.5 to 7 are examined as PW.2 to 4 there being Police Officers 7 CC No.17630/2019 and accompanied with PW.1 while ride. He/ PW.1 specifically testified before this court that, on 12.04.2019, when he was on station house duty, CW.1 came and gave written complaint , verify and registered case. He prepared FIR, original copy of FIR submitted before Jurisdictional trial court and copy of FIR forwarded to his Police Officers. After that, he called two panchas i.e., CW.2 & 3 and he called his staff i.e., CW.1 & 4 to 6 and proceeded with them to the place of alleged incident. First he went to BR Auto parts, JC Road, Bengaluru, and he enquired, they said that, their names as Dinesh & Hanuman Patel and he informed about complaint given by CW.1 and verify shop and found different spare parts of TVS MOTORS, HERO MOTO CORP AND BOSCH company and he found the said properties are counterfeit products of Canon Company. After that, he recovered entire counterfeit products by drawing Ex.P.3 and he returned with accused and counterfeit products. Further, he deposed before the court that, he received genuinity certificate from CW.1 , he arrested accused and he reported seized articles to Hon'ble court. Further, he 8 CC No.17630/2019 deposed before the court that, he recorded statement of CW.2 to 6. Further, he deposed before the court that, he identified Ex.P.1 to Ex.P.4 , MO.1 and accused person. It is relevant to note that, on 06.03.2023, the learned counsel for accused sought further time for conduct cross examination, therefore this court took prayer of Learned counsel for accused rejected and cross of PW.1 taken as nil.
10. Further, PW.2 to PW.4 have specifically testified before this court that, upon the oral order of CW.7 they have accompanied while ride and they also done their work as per the order of CW.7 and all the witnesses are identified MO.1 and accused. PW.2 to 4 have been subjected cross examination by accused . They clearly admitted that, they went alleged place of incident at about 4.15 pm., and they denied other formal and material suggestions made by accused.
11. The prosecution has been examined CW.1/ PW.5, he being Investigation Officer of EIPR Company, he specifically 9 CC No.17630/2019 testified before this court that, EIPR Company has been authorized to conduct survey to trace counterfeit products of said company and lodged complaint against accused persons. Accordingly , that on 12.04.2018, he got credible information about selling of counterfeit products of TVS MOTORS, HERO MOTO CORP AND BOSCH company in SP road, Bengaluru. Therefore, he lodged FIS before the SHO of Kalasipalya Police Station. After that, he proceeded with CW.7 and other Police Officers, two panchas, two shops of accused and CW.7 inspected and found counterfeit products of TVS MOTORS, HERO MOTOR CORP AND BOSCH company in their shops and CW.7 has seized by drawing Ex.P.3. He identified accused persons, MO 1, he has been subjected cross examination . in the cross examination he specifically admitted that, he is not purchased items from accused shop and he denied other material suggestions made by accused during course of cross examination.
10 CC No.17630/2019
12. On perusal of oral and documentary evidence placed by prosecution it appears that, on 12.04.2018, CW.1 being Investigation Officer of EIPR Company and during his market survey, he got credible information about some shops or involved in the sales / distribution spurious counterfeit products of TVS MOTORS, HERO MOTO CORP AND BOSCH company parts and packing materials purportedly manufacture by the cannon company. Therefore, he lodged Ex.P.1 before SHO of Kalasipalya Police Station . Accordingly this case has been registered against accused No.1 & 2. CW.7 being PSI of Kalasipalaya Police Station, he proceeded and seized counterfeit products of TVS MOTORS, HERO MOTO CORP AND BOSCH company from the possession of accused i.e., MO 1 by drawing Ex.P.3 in the presence of CW.2 & 3. CW.2 & 3 are the private, individual and independent witnesses to Ex.P.3 . CW.7 seized MO 1 in the presence of CW.1 to 6 from the possession of accused. In order to bring home the guilt of the accused NO.1 & 2, the Investigation Officer cited CW.1 to 7 in charge sheet. The prosecution able to examine CW.1 ,4 to 7 as PW.1 11 CC No.17630/2019 to PW.5 , rest of witnesses i.e., CW.2 & 3 are not yet stepped into witness box. It is relevant to note that, despite took coercive steps against CW.2 & 3, the prosecution has failed to secure presence of CW.2 & 3 . Therefore, they are dropped out on 04.01.2024. Further, it is relevant to note that, the counsel for accused has filed application under section 311 Cr.P.C., to recall PW.1 for the purpose of cross examination , the said application allowed by imposing cost of Rs.750/- each , both accused have complied order dated 26.07.2023. After that, this court issued process against PW.1, despite that, PW.1 has not turned up, Therefore, this court took prayer of Learned Senior APP rejected and PW.1 evidence discarded has not tender for cross examination on 03.11.2023. Further, it is relevant to note that, Learned Senior APP has filed IA under section 311 Cr.P.C., to recall PW.1 and CW.1 to 3, the counsel for accused submitted before this court, he has no objection to consider IA filed by prosecution. Therefore, again the application filed by Learned Senior APP allowed and PW.1, CW.1 to 3 are recalled and permitted prosecution to conduct examination of above 12 CC No.17630/2019 witnesses and this court again issued process against PW.1 , CW. 1 to 3. after that, the prosecution has examined CW.1 as PW.5. despite took coercive steps against PW.1 , CW.2 and 3 , the prosecution failed to secure their presence. Therefore, 3 rd time, took this court prayer of Learned Senior APP rejected and CW.2 & 3 are dropped out. Evidence of PW.1 taken as discarded as not tender for cross examination on 04.01.2024. Admittedly, CW.1 has not purchased any items from the said shops. The original HERO MOTO CORP, TVS MOTORS AND BOSCH COMPANY spare parts have not been sent to CW.1 for the purpose of technical analysis. CW.1 has not produced any documents pertains to his qualification eligibility to conduct analysis on counterfeit products. Further, it is relevant to note that, PW.1 being Investigation Officer of this case , he is not tender for cross examination, it is fatal to the case of prosecution. Further, it is relevant to note that, CW.2 & 3 are panch witnesses to Ex.P.3, they have not been examined by the prosecution. So, it is also fatal to the case of prosecution. So from this court view, Ex.P.3 contents and seizure of 13 CC No.17630/2019 properties from the possession of accused No.1 & 2 are not proved by prosecution beyond all reasonable doubts. Therefore, this court clearly came to conclusion that, the prosecution has been failed to prove guilt of accused No.1 & 2 beyond all reasonable doubts. Accordingly, I answer Point No.1 in the negative.
13. 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 & 2 are hereby acquitted of the offences punishable U/Sec.51(b), 63 of Copyright Act, r/w section 420 of IPC.
The bail bonds and surety bonds executed by accused No.1 & 2 shall continue for a period of six months from the date of this order and thereafter same shall stands canceled automatically. 14 CC No.17630/2019
Office is hereby directed properties from Sl.No.1 to 3 as mentioned in PF. 34/2018 shall order to be destroyed as worthless after appeal period over. (Dictated to the stenographer directly on computer, corrected directly on computer and then pronounced by me in open court on this the 15 th day of February 2024).
(R.Mahesha) IX Addl.Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of the prosecution:
PW.1 : S.Rama Naik PW.2 : Gangamahimaiah PW.3 : Vinod Kumar PW.4 : Ramaswamy PW.5 : Harish Kumar
List of documents marked on behalf of the prosecution:
Ex.P.1 : Complaint
Ex.P.2 : FIR
Ex.P.3 : Panchanama
Ex.P.4 : Two certificates
15 CC No.17630/2019
List of material objects marked on behalf of the prosecution: MO.1 : Sl.No.1 to 3
mentioned in PF. 34/2018 List of witnesses examined on behalf of the defence:
- NIL -
List of documents and materials marked on behalf of the defence:
- NIL -
IX ADDL.C.M.M. Bengaluru.16 CC No.17630/2019
Judgment pronounced in the Open Court (Vide separate order) ORDER Acting under Section 248(1) of Cr.P.C., accused No.1 & 2 are hereby acquitted of the offences punishable U/Sec.51(b), 63 of Copyright Act, r/w section 420 of IPC.
The bail bonds and surety bonds executed by accused No.1 & 2 shall continue for a period of six months from the date of this order and thereafter same shall stands canceled automatically.
Office is hereby directed properties from Sl.No.1 to 3 as mentioned in PF. 34/2018 shall order to be destroyed as worthless after appeal period over.
IX ACMM, Bengaluru.17 CC No.17630/2019