Bangalore District Court
J Suresh Raju Pi vs Santhosh N Poojari on 18 March, 2024
KABC030031622018 Digitally signed
by R MAHESHA
R Date:
MAHESHA 2024.03.19
11:09:14 +0530
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU.
Dated this the 18 th day of March 2024
Present : Sri.R.Mahesha.
B.A.L., LL.B.,
IX Addl.C.M.M., Bengaluru.
CC.1235/2018
1.C.C.No. CC.1235/2018
2.Date of offence 16.01.2016
3.Complainant State by Bharathi Nagara
Police Station.
4.Accused 1. Santhosha N Pujari,
S/o Narayana Pujari,
Aged about 38 years,
R/at No.128, 8th Main,
5th Cross, AGS Layout,
Arehalli, Bengaluru Nagara.
2. Ranjith -Abated
5. Offences U/Sec.292 IPC and 52(A) & 68(A)
complained of of Copyright Act and 420 of IPC.
6.Plea Accused No.1 pleaded not guilty.
7.Final Order Accused No.1 is acquitted.
8.Date of Order 18-03-2024.
JUDGMENT
The Police Sub-Inspector of Bharathi Nagara Police Station, Bengaluru has filed this charge sheet against the accused No.1 & 2 for the offences punishable U/Sec.292 IPC and 52(A) & 68(A) of Copyright Act and 420 of IPC .
02. The brief facts of the prosecution case are that, on 16.01.2016 at about 11.00 am CW. 1 has got credible information within the limits of Bharathi Nagar Police Station, situated at Near Halasuru Kere, infront of Sagar Hotel, Bengaluru, the accused persons were selling different languages of duplicate and obscene CD's of reputed Company to the public, without obtaining the valid permission/license from the copyright owner and infringed the right of the copyright of the said company and also cheated to the public. Hence, CW.1 lodged first information. The Station House Officer registered a case in Cr No.14/2016 for the offences punishable U/Sec.292 IPC and 52(A) & 68(A) of Copyright Act and submitted First Information Report to this Court. After investigation, Police Sub-Inspector of Bharathi Nagara Police Station filed charge sheet for the said offences punishable U/Sec.292 IPC and 52(A) & 68(A) of Copyright Act and 420 of IPC against the accused. Hence, he has committed the alleged offences.
03. Accused No.1 & 2 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 persons. Further, it is relevant to note that, the NBW of accused No.2 returned as dead and death certificate of accused No.2 enclosed with report by Police Officers. Therefore, this court ordered case against accused No.2 stood as abated vide order dated 28.02.2022. After hearing on charge, this Court has framed charge for the offences punishable U/Sec.292 IPC and 52(A) & 68(A) of Copyright Act and 420 of IPC for which accused pleaded not guilty and claimed to be tried.
04. The prosecution, in order to prove its case, has examined six witness as PW.1 to PW.6 and got marked documents at Ex.P.1 to Ex.P.4 and also material objects marked at MO.1 to 9 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, wherein accused has denied the incriminating circumstances appeared against him as false and did not choose to lead defence evidence. As such, the matter was posted for arguments.
05. I have heard the arguments on both sides.
06. The points that arise for my consideration are as under:
(1) Whether the prosecution proves beyond reasonable doubt that, on 16.01.2016 at about 11.00 am within the limits of Bharathi Nagar Police Station, situated at Near Alasuru Kere, infront of Sagar Hotel, Bengaluru, CW.1 to 3 raid the accused persons who were selling the duplicate and obscene CDs of reputed Company to the public, without obtaining the valid permission/license from the copyright owner and infringed the right of the copyright of the said company and also cheated to the public and thereby committed an offences punishable U/Sec.292 IPC and 52(A) & 68(A) of Copyright Act and 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:
REASONS
08. 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.
09. The main allegation of the prosecution is that, on 16.01.2016 at about 11.00 am within the limits of Bharathi Nagar Police Station, situated at Near Alasuru Kere, infront of Sagar Hotel, Bengaluru, CW.1 to 3 raid the accused persons who were selling the duplicate and obscene CDs of reputed Company to the public, without obtaining the valid permission/license from the copyright owner and infringed the right of the copyright of the said company and also cheated to the public. As already stated supra, the prosecution has examined six witness as PW.1 to PW.6 and documents got marked as Ex.P.1 to Ex.P.4.
10. The prosecution has been examined CW.13 as PW.1, he being Police Officer. He specifically testified before this court on 16.01.2016 at about 06.30 pm, when he was on station house duty, CW.1 came and gave written complaint, and mahazar along with different languages CD's and DVD's and cash of Rs.3,300/- received, verified and registered case. He prepared FIR, original copy of FIR submitted before Jurisdictional trial court and copy of FIR forwarded to his Police Officers. Further he sated that, he took proper surety from accused and got him released on bail. Further, she deposed before the court that, he recorded the statements of CW.4 to 11. After completion of the investigation, he submitted charge sheet against accused and he identified his signature found in Ex.P.1 to 4 . Further, it is relevant to note that, at the request of Learned Senior APP further chief examination of PW.1 deferred for the reasons for production of seized properties before this court for trial. Therefore, further chief examination of PW.1 deferred.
11. The prosecution has been examined CW.8 as PW.2, CW.5 as PW.3, CW.7 as PW.4, CW.11 as PW.5, CW.1 as PW.6, they being Police Officers and association with CW.1 while conduct raid on 16.01.2016. They specifically testified before the court that, on 16.01.2016 CW. 1 called CW. 8, 5, 7, 11 and shared information get through informants and they proceeded with CW.1 with panchas near Halasuru Lake, infront of Sagar Hotel, Bengaluru, some persons have selling obscene CD's. They surrounded and caught accused persons and seized 18,010 counterfeit CD's of different language, labels and cash of Rs.3,300/- from the accused by drawing Ex.P. 3. After that, they came back with seized articles with accused to Police Station. They identified accused and MO.1 to 9 and they have been subjected cross examination by accused counsel.
12. On perusal of oral and documentary evidence placed by the prosecution it appears that, it is the suo moto case registered by CW.1 against three accused. The accused No.3 has not secured by Investigation Officer. Therefore, he charge sheeted against only two accused persons. It is the specific case of prosecution that, CW.1 got credible information through police informants about selling of counterfeit and obscene CD's infront of Shanthi Sagar Hotel on footpath and CW.1 and his other Police Officers proceeded and CW. 1 called two panchas and found one person Ranjith has selling CD's to public and they surrounded and caught him and he admitted his guilt before CW.1. Further, on being enquiry of Ranjith, he submitted before CW.1 is a labourer under one Santhosh and they have stored some more CD's near Shanthisagar Hotel in one shop and as per the information given by Ranjith, CW.1 has seized 22,000 different languages CD's by drawing Ex.P.3 and he came back with accused and Ranjith and recovered articles. In order to substantiate case of prosecution, the prosecution has cited CW. 1 to 13 witnesses in charge sheet. Out of which the prosecution able to examine PW.1 to 6. PW.1 to 6 are Police Officers. PW.1 is a station house officer of Bharathi Nagara Police Station. CW.1 is a Police Inspector in CCB, PW.2 to 5 are Police Officers in CCB and they have assisted to CW.1 to conduct raid. In their cross examination of 2 to 6, they have specifically admitted they had been to spot through private and Government vehicle. PW.2 to 5 has specifically admitted they went to alleged place of incident total five persons , but PW.6 specifically admitted they had been went to spot total six persons. Further, PW.2 to 6 are admitted that, CW.1 has not sent any decayi to purchase CD's from accused. Further, PW.2 to 6 have admitted that, before seized they have not play CD's at spot. Further, it is admitted by CW.6 in his cross examination, accused has selling CD's arranging on table and CD's are kept in box and polythene bag, but CW.1 has not seized the said table, box and polythene bag from the possession of accused. Further, PW.2 to 6 are admitted that, all the CD's which are alleged to be seized by CW.1 from the possession of accused on footpath i.e., 18,010 CD's are not obscene CD's. Further, CW.1 has came to conclusion at spot by himself the alleged seized CD's are counterfeit, replica CD's of reputed company. Further, it is relevant to note that, after recovered CD's from CW.1 and his team, the said CD's are sent to 'United Copyright Association' and one Gajendra, Investigation Officer and authorized signatory has verified sample CD's sent by CW.13 and CW.12 has issued genuinity certificate regarding sample CD's sent by Investigation Officer. But, there is no any scrap of papers on record regarding sending of sample CD's to CW.12. Further, it is relevant to note that, CW.12 has issued genuinity certificate as per Ex.P.4. But, author of document i.e., CW.12 has not been examined by the prosecution. Further, it seen from prosecution papers Investigation Officer has not recorded the statement of CW. 12. Further, CW.1 in his chief examination specifically deposed before the court that, after got credible information, he himself and his other police staff had been to spot and called two panchas and he explained about facts of this case and he issued written notice to them to stood as panchas to conduct raid. But, the said notice has not been produced by prosecution. Further, CW.1 stated he himself typed notice at spot and served to panchas at spot. But, it has been produced by prosecution where and how CW.1 get presence of panchas is doubtful. Further, it is relevant to note that, CW.2, 3 and 12 are material witnesses to prove the contents of Ex.P.3 & 4, but prosecution has failed to secure their presence. Therefore, they are dropped out by this court. the non examination of material witnesses is fatal to the case of prosecution. Non examination of independent witness by the prosecution, this court incline to accept the contents and recovery made by CW.1 and his associates by drawing Ex.P.3. Further, it is relevant to note that, PW.1 being Police Officer and Investigation Officer of this case, on 24.01.2023 the prosecution partly examined CW.13 as PW.1 and at the request of Learned Senior APP, further chief examination deferred for want of production of properties, but despite took coercive steps against PW. 1, he prosecution has failed to secured his presence before this court. Therefore, PW.1 evidence discarded on 27.01.2024. So, the incomplete evidence of PW.1 is not helpful to the case of prosecution. So, from evidence of PW. 2 to 6 have contain many contradictions, omissions and improvements. Further, it is relevant to note that, despite took coercive steps against CW.2 to 4, 9, 10 & 12, the prosecution has been failed to secured their presence well in time. Therefore, they are dropped out vide order dated 27.01.2024. Non-examination of material witnesses is fatal to the case of prosecution. The prosecution has failed to prove the contents Ex.P.3 & 4 beyond reasonable doubt. Therefore, the prosecution has failed to prove the guilt of the accused No.1 beyond reasonable doubt. 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 is hereby acquitted of the offences punishable U/Sec.292 IPC and 52(A) & 68(A) of Copyright Act and 420 of IPC .
The bail bonds and surety bonds executed by accused No.1 shall continue for a period of two months from the date of this order and thereafter same shall stands cancelled automatically. Office is hereby directed properties mentioned in PF.02/2016 from Sl.No.1 to 8 CD's shall order to be destroyed as worthless after appeal period over. Office is hereby directed properties mentioned in PF.02/2016 from Sl.No.9 cash of Rs.3,300/- shall order to be forfeited to the state after appeal period over.
Further, office to directed issue court notice to Jurisdictional SHO and Investigation Officer with a direction to produce entire properties before this court for destruction.
(Dictated to the stenographer directly on computer, corrected directly on computer and then pronounced by me in open court on this the 18th day of March 2024).
(R.Mahesha) IX Addl.Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
PW.1 : Raju PW.2 : Sreenivasa PW.3 : Shanthakumar PW.4 : Ranganatha PW.5 : Anand Kumar PW.6 : Suresh Raju LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1 : Complaint Ex.P.2 : FIR Ex.P.3 : Panchanama Ex.P.4 : Report List of material objects marked on behalf of the prosecution: MO.1 to 8 : CD's MO.9 : Cash of Rs.3,300/-
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.
Judgment pronounced in the open court (Vide separate order) ORDER Acting under Section 248(1) of Cr.P.C., accused No.1 is hereby acquitted of the offences punishable U/Sec.292 IPC and 52(A) & 68(A) of Copyright Act and 420 of IPC .
The bail bonds and surety bonds executed by accused No.1 shall continue for a period of two months from the date of this order and thereafter same shall stands cancelled automatically. Office is hereby directed properties mentioned in PF.02/2016 from Sl.No.1 to 8 CD's shall order to be destroyed as worthless after appeal period over.
Office is hereby directed properties mentioned in PF.02/2016 from Sl.No.9 cash of Rs.3,300/- shall order to be forfeited to the state after appeal period over.
Further, office to directed issue court notice to Jurisdictional SHO and Investigation Officer with a direction to produce entire properties before this court for destruction.
IX ADDL.C.M.M. Bengaluru.