Bangalore District Court
State By Halasuru Gate Police Station vs Nos. 1 And 2 Has Examined 3 Witnesses And ... on 27 August, 2015
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 27th day of August 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 14219/2013
2.Date of Offence 01-07-2013
3.Complainant State by Halasuru Gate Police Station
4.Accused 1. Thimmesh.Y S/o Venkatappa, 24 years,
R/a Puttamma's Vatara, behind Provision
Store, Singapura Layout, Vidyaranyapura
post, Bengaluru.
2. Srinivas.A, S/o Anjinappa, aged about 20
years, R/at uttamma's Vatara, behind
Provision Store, Singapura Layout,
Vidyaranya pura post, Bengaluru.
5. Offences complained of U/s. 51 (1), (A), (B) and 63 Copyright Act
1957 and Sec 420 r/w Sec 34 of IPC.
6.Plea Accused No.1 & 2 pleaded not guilty.
7.Final Order Accused No.1 & 2 are acquitted
8.Date of Order 27-8-2015
2 CC.No.14219/13
R E A S O N S
The Sub Inspector of Police, Halasuru Gate Police Station,
Bengaluru has filed this charge sheet against the accused Nos.1 and 2
for the offences punishable U/s. 51(1), (A), (1)(B) and 63 of Copyright
Act 1957 and Sec.420 r/w Sec 34 of IPC.
2. The brief facts of the prosecution case are that on
01/07/2013 at 12 noon, in Megha Book Center and Asha Book Center
shops No.58 and 60 respectively situated at Jayaram Complex, Avenue
Road, within the limits of Halasuru gate Police Station, the accused
Nos.1 & 2 being the owners of the said shops were found in possession
and selling of counterfeit books in the name of Quantitative Aptitude
and Verbal & Non Verbal reasoning without obtaining any authorization
or written consent from the copyright holder and thereby infringed
the copyright of said companies and further the accused persons were
selling the said books in their respective shops as if the said books
are supplied by copyright holder company and thereby cheated the
general public as well as copyright holder company and committed
aforesaid offences.
3. The accused Nos.1 & 2 are on bail. On receipt of charge
sheet, this court took cognizance of the offences and furnished the
copies of the prosecution papers to the accused Nos.1 & 2 as required
under Sec 207 of Cr.P.C. After hearing on counsels of both and also
3 CC.No.14219/13
the learned Sr. APP, charge for the offences punishable under
Section 63 of Copyright Act and section 420 of IPC has been framed
and read over to the accused Nos.1 and 2 in the language known to
them, for which they denied the charge and claimed to be tried.
4. The prosecution in order to prove the guilt against the
accused Nos. 1 and 2 has examined 3 witnesses and got marked 11
documents as per Ex.P1 to P11 and also got marked MO- 1 and 2.
5. Thereafter, statement under Section 313 of Cr.P.C has been
framed and read over to the accused Nos.1 and 2 in the language
known to them. They denied the incriminating evidence appeared
against them and did not claim to adduce defence evidence.
6. I have heard both the counsels and perused the entire file.
7. As stated above the prosecution to prove guilt against
accused Nos.1 & 2 has examined 3 witnesses. PW-1 Ashok M.S. is the
Police Inspector, who conducted the raid and seized counter feet
books. PW-2 Shivaraj is the Police Head Constable, who said to have
participated in the raid. PW-3 A.T Nataraj is the Police Sub
Inspector, who investigated the matter and filed charge sheet against
the accused persons. It appears in spite of giving sufficient
opportunities, the prosecution has not examined the independent
4 CC.No.14219/13
seizer witnesses i.e., CW-3 and 4 and the person who gave opinion
regarding seized books i.e., CW-2 herein.
8. As stated above, PW-1 is the Police Inspector who conducted
the raid and PW-2 is the Police Head Constable who participated in
the raid. Their testimony indicating that on 1.7.2013, upon credible
information of selling of counterfeit books in shops at Jayaram
complex, Avenue Road, PW-1 the PI called CW-3 and 4 as panchas to
conduct the raid. Thereafter, they, their other staff, 2 panchas along
with CW-5 visited Megha Book Center shop in the said complex and
found selling of books. CW-2 the representative of Anti Piracy Cell
found 12 Quantitative Aptitude counter feet books. PW-1 questioned
the person in the said shop by name Thimmesh regarding licence to
sell the said books. Since, the said Thimmesh pleaded no, he seized
the said 12 counterfeit books along with Samsung mobile phone by
preparing seizer mahazar in the presence of witnesses.
9. Their testimony further indicating that thereafter, they
visited Asha Book Center and found one person by name Srinivas. CW-
2 has verified and found 5 counterfeit books in the name of
Quantitative Aptitude and one Verbal and Non Verbal counterfeit
books. Since, the said person has not placed any documents regarding
permission to the sell the same PW-1 has seized the same by
preparing the seizure mahazar. Their testimony further indicating
that, thereafter they visited Halasuru Gate Police Station and handed
5 CC.No.14219/13
over the accused persons along with seized counterfeit books with
report for further investigation.
10. The testimony of PW-3, the investigation officer indicating
that on 1.7.2013, he received complaint, seizure mahazar, seized
counterfeit books and two persons from PW-1. Accordingly, he
registered the case. Thereafter, he enquired the accused persons and
recorded their voluntary statement as they confessed regarding
commission of offences. Thereafter, he recorded the statements of
CW-3 to 5, obtained report from CW-2 regarding the seized books
and after completion of investigation filed the charge sheet against
the accused persons.
11. In a case like this, the offence has to prove in a
circumstantial evidence by way of proving the seizure mahazar of MO-
1 and 2 beyond all reasonable doubt. Further, the prosecution has to
prove that the seized books are counterfeit in the name of
Quantitative Aptitude and Verbal and Non Verbal Reasoning over
which S. Chand & Company Pvt Ltd., had copyright. Further, the
prosecution has to prove that the accused No.1 is the owner of Megha
Book Center and accused No.2 is the owner of Asha Book Center.
12. As stated above, the prosecution to prove the guilt against
accused has examined 3 witnesses. PW-1 and PW-2 have spoken
regarding the seizure mahazar of MO-1 and 2. Though, PW-1 and 2
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were subjected to cross-examination, but, nothing worth is elicited
from them. As stated above in spite of giving sufficient
opportunities, the prosecution has not examined independent seizure
mahazar witnesses. In my opinion, even though, the prosecution has
not examined independent seizure mahazar witnesses, I have no
reasons to disbelieve the testimony of PW-1 and 2. Though, PW-1 is
the Police Inspector and PW-2 is the Police Head Constable who are
police officer and staff respectively, in my opinion their evidence is
not suffering from any infirmity to disbelieve. Absolutely, I have no
reason to disbelieve the testimony of PW-1 and 2 in the matter of
raid and seizure of MO-1 and 2 by preparing the seizure mahazar.
Accordingly, I am of the considered opinion that the prosecution has
successfully proved the seizure mahazar of MO-1 and 2 beyond all
reasonable doubt.
13. In my opinion, mere proving the seizure mahazar of MO-1
and 2 is not sufficient to connect the accused Nos.1 and 2 for the
offences alleged against them. In order to connect the accused
persons, the prosecution has also to prove that the seized books are
counterfeit. The testimony of PW-3 indicating that during the course
of investigation, he obtained the report from CW-2, Head of Anti
Piracy Cell regarding seized books. Unfortunately, in spite of giving
sufficient opportunities, the prosecution has not examined CW-2.
Though the prosecution through PW-3, the Investigation Officer
marked the opinion of CW-2, in my opinion mere marking of the same
7 CC.No.14219/13
in the absence of evidence of author of Ex.P8 i.e., CW.2, is not
amounts to proof. Moreover, CW-2 is not government recognized
expert and admittedly, he is the representative of the copyright
holder company who has interest in favour of Copyright Holder
Company and as such, it is not safe to place reliance on his sole
testimony. Accordingly, I am of the considered opinion that the
prosecution has failed to prove that the seized books are counterfeit
in the name of copyright holder company.
14. Further, the prosecution has not examined the
representative of S. Chand & Company Private Ltd., and has not
marked any acceptable documents to prove that the said Chand &
Company had copyright over Quantitative Aptitude, Verbal and Non
Verbal Reasoning. Further, the prosecution has not examined any
witnesses and has not marked any documents to show that the
accused Nos.1 and 2 are the owners of the Megha Book Center and
Asha Book Center respectively. No doubt, PW-1 and 2 have stated
that accused Nos.1 and 2 are the owners of the said book center,
their say in the absence of documentary evidence cannot be relied
upon. Therefore, having regard to the facts and circumstances of the
case and the facts available on record, I am of the considered opinion
that the evidence on record is not sufficient to conclude that the
prosecution has proved its case beyond all reasonable doubt.
Accordingly, Accused Nos.1 and 2 are entitled for benefit of doubt. In
the result, I proceed to pass the following:
8 CC.No.14219/13
ORDER
This court did not found guilt of accused Nos.1 & 2 for the offences under section 63 of Copyright Act 1957 and section 420 of IPC.
Consequently, acting under section 248(1) of Cr.P.C., accused Nos.1 & 2 have been acquitted for the above-referred offences.
Therefore, their bail bond and surety bond stands cancelled.
MO 1 and 2 are confiscated to government after appeal period is over.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 27th day of August 2015) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of Witnesses examined on behalf of Prosedution:
PW-1 : Ashok M.S. PW-2 Shivaraj PW-3 A.T. Nataraj
List of Exhibits marked on behalf of prosecution Ex.P1 : Complaint Ex.P1(a) : Signature of PW-1 Ex.P2 : Mahazar 9 CC.No.14219/13 Ex.P2(a) : Signature of PW-1 Ex.P2(b) : Signature of PW-3 Exs.P3 : Authority letter Ex.P4 Resolution letter Ex.P5 Copy right agreement Ex.P6 : M.O.A. Ex.P7 Trademark Certificate Ex.P8 Permission letter issued to complainant Ex.P9 Letter issued by Chand & Co Ex.P10 Report Ex.P10(a) Signature of PW-1 Ex.P10(b) Signature of PW-3 Ex.P11 FIR Ex.P11 (a) Signature of PW-1 List of Witnesses examined on behalf of Defence:
: Nill List of documents marked on behalf of Defence:
: Nill List of M O's :
MO 1 : 18 counterfeit books and 2 original books
MO 2 Samsung Mobile phone
IX ADDL.C.M.M.
Bangalore.
10 CC.No.14219/13
Judgement pronounced in the open court vide separate sheet.
ORDER This court did not found guilt of accused Nos.1 & 2 for the offences under section 63 of Copyright Act 1957 and section 420 of IPC.
Consequently, acting under section 248(1) of Cr.P.C., accused Nos.1 & 2 have been acquitted for the above-referred offences.
Therefore, their bail bond and surety bond stands cancelled.
MO 1 and 2 are confiscated to government after appeal period is over.
IX ADDL.C.M.M. Bangalore.11 CC.No.14219/13