Delhi District Court
Rajan Behl vs The State (Delhi Admn.) on 18 May, 2010
1
IN THE COURT OF SH. DHARMESH SHARMA :
ADDITIONAL SESSIONS JUDGE-II, NORTH DISTRICT :
DELHI
CRIMINAL APPEAL : 01/2010
Date of filing of Appeal: 18.01.2010
Date on which arguments heard and
Judgment reserved: 11.05.2010
Date of Judgment : 18.05.2010
Rajan Behl
S/o Sh. Kirori Mal
R/o K-3, Ajay Enclave,
Tilak Nagar, New Delhi
.............Appellant
Versus
The State (Delhi Admn.)
..........Respondent
CRIMINAL APPEAL : 03/2010
Jai Prakash
S/o Sh. Kirori Mal
R/o 4/6, Gali Paharwali,
Chatta Mal Mian, Daryaganj,
Delhi.
..........Appellant
Versus
The State (Delhi Admn.)
..........Respondent
2
APPEARANCE:-
Sh. Rakesh Talwar and Sh. Mukesh Talwar, advocates for
the appellants/accused.
Mr. Maqsood Ahmed, Ld. APP for the State / respondent.
JUDGMENT:
1. This common judgment shall decide the above noted two appeals preferred as per u/s 374 Cr.P.C by the appellants who faced joint trial assailing judgment dt.26.11.09, whereby the appellants were convicted u/s 63 of the Copyright Act, 1957 (herein after referred as CR Act) read with section 78, 79 of The Trade Marks & Merchandise Act, 1958 (TMM Act) and thereafter, vide order on sentence dt. 21.12.2009, sentenced to various terms of imprisonment.
2. The present case was registered on the complaint dt.01.08.1995 (ExPW2/A) of one Sewak Ram Arora (PW2) Authorized Signatory for M/s Havell's Industries, to the effect that the company is owner of Trade Mark "Havell's"
registered under the TMM Act manufacturing electrical goods such as switch gears, meters, cables distribution boards etc. He stated that the Trade Mark "Havell's" has acquired tremendous reputation and goodwill in the market and the company is spending huge amount over the years for its advertisement and marketing. The grievance was that it had come to their knowledge that some unscrupulous persons are engaged in the manufacturing of spurious goods by using their Trade Mark "Havell's" unauthorizedly and illegally and also by applying printing labels, papers roles etc. 3 for use of manufacturing of corrugated boxes unauthorizedly and illegally using the trade mark. It was further complained that as per their knowledge, somebody at A-123 Shastri Nagar, Delhi is engaged in printing of paper roles and printing labels infringing their Trade Marks without their consent and permission; indicating that the use of such of Trade Mark without their consent and permission is an offence under the TMM Act besides C.R.Act, the SHO PS Sarai Rohilla was requested to initiate appropriate action.
3. Accordingly, the police swept into action and along with the complainant, the premises bearing no. A-123 was raided and accused / appellant Jai Prakash was arrested who was found procuring printing of roles labeled with Trade Mark "Havell's". The rolls along with stamps etc were seized and upon the disclosure statement of accused Jai Prakash some spurious counter feit goods were recovered from the shop at Darya Ganj, Delhi and also from Khurja, U.P. Later on, the appellant / accused Rajan Bahl was arrested from his shop at Bhagirath Place and duplicate / counter feit goods i.e. Switch gears in different categories were recovered.
4. After completion of investigation, the chargesheet was filed. Needless to state that the accused / appellant Jai Prakash was charged u/s 63 of Cr.P.C Act for being found in possession of rubbers and printed materials with the impression of Havell's. As per the seizure memo Mark A; and secondly charged on account of infringing the registered Trade Mark "Havell's" with the intention to keep the printed 4 material for sale, trade and manufacturing punishable u/s 78, 79 of TMM Act. Accused / appellant Rajan Behl was similarly charged u/s 63 of the C.R. Act for being found in possession of rubber and printed materials with the impression of "Havell's"; and also charged on account of being in possession of counter feit / duplicate goods as per seizure memo (ExPW2/D) u/s 78, 79 of TMM Act. Both the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case examined as many as eight witnesses. PW2 Sewak Ram Arora was the complainant and I shall dwell on his evidence later on in this judgment. PW6 was Harish Chander Sharma, Supervisor in Havell's India Limited. He was associated at the time of recovery of counter feit / duplicate goods from the shop of accused / appellant Rajan Behl. I shall dwell on his evidence later on in this judgment. Later on, other witnesses were police witnesses: PW1 Ct. Anil Kumar, PW4 Ct. Hari Singh, PW5 Bhagwan Singh, PW7 Ct. Mahipal Singh, who were associated during investigation along with PW8 SI Vikramjeet Singh, who was investigating officer. PW3 ASI Veena was duty officer who recorded the FIR ExPW3/A.
6. Sh. Sanjay Bansal, Ld. ACMM, Delhi vide impugned judgment dt. 26.11.09 found the evidence of PW2 Sewak Ram Arora credibly enough to hold that the accused / appellant were infringing the Trade Mark and also selling counter feit / duplicate goods of the complainant company. The two accused / appellants were accordingly convicted and 5 vide order dt.21.12.09, both the convicts / appellants were sentenced to rigorous imprisonment for a period of six months and to pay a fine of Rs.50,000/- each u/s 63 of the C.R. Act. In default of payment of fine, both of them were further directed to undergo simple imprisonment for one month each. Further, the appellants were sentenced to rigorous imprisonment for a period of six months and to pay a fine of Rs.1,000/- each u/s 79 of TMM Act. In default of payment of fine, both of them were further directed to undergo simple imprisonment for one month each. Similar punishment was given to both the appellants u/s 79 of TMM Act.
7. In Criminal Appeal No.03/10, appellant Jai Prakash has assailed the impugned judgment and order on sentence on the ground that the same are bad in law in as much as, the prosecution failed to prove its case beyond reasonable doubt and the Ld.ACMM had shifted the burden of proof upon the appellant which against the Cardinal Principal of Criminal law; that the Ld.Trial Court ignored the contradictory evidence of PW2, PW7 and PW8 in regard to the recovery of case property allegedly from A-123 Shastri Nagar, Delhi, about the presence of the appellant thereat; that the Ld. ACMM failed to consider that the prosecution failed to prove the recovery of any goods from A-123, Shastri Nagar, Delhi and also from the premises at Darya Ganj; that no evidence was collected; that the appellant Jai Prakash was the owner of the premises that were raided.
68. So far as appellant Rajan Behl is concerned, he has also assailed the impugned judgment and order of sentence more or less on similar grounds. It is primarily urged that the counterfeit / duplicate goods were seized while lying in the open, outside the shop of the appellant and no evidence has been led that the bags that were seized had any connection with him; that Ld.ACMM ignored the apparent contradictions in the evidence of PW4 in regard to the recovery of alleged counter feit / duplicate goods and no public witness were joined at the time of alleged recovery.
9. I have given my thoughtful consideration to the submissions made by the Ld.counsel for the appellants. I have also perused the oral and documentary evidence on the record of the case. Let us first have a look at the relevant provisions of law. Section 63 of the C. R. Act provides as under:
Offence of infringement of copyright or other rights conferred by this Act - Any person who knowingly infringes or abets the infringement of -
(a) the copyright in a work, or
(b) any other right conferred by this Act, (except the right conferred by the section 53A).
Shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees. Rest omitted as not relevant.
Section 78 and 79 of the TMM Act provide as under ;
Section 78 : Penalty for applying false trade marks, trade descriptions, etc.- Any person who,-
(a) falsifies any trade mark; or
(b) falsely applies to goods any trade mark; or
(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying, or of being used for falsifying, a trade mark; or 7
(d) applies any false trade description to goods; or
(e) applies to any goods to which an indication of the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied under section 117, a false indication of such country, place, name or address; or
(f) tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied under section 117; or
(g) causes any of the things above mentioned in this section to be done, shall, unless he proves that he acted without intent to defraud, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both:
Proviso omitted as not relevant.
Section 79 : Penalty for selling goods to which a false trade mark or false trade description is applied - Any person who sells, on exposes for sale, or has in his possession for sale or for any purpose of trade or manufacture, any goods or things to which any false trade mark or false trade description is applied or which, being required under section 117 to have applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer or the person for whom the goods are manufactured, are without the indication so required, shall, unless he proves,-
(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods; and
(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things; or
(c) that otherwise he had acted innocently, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both:
Proviso omitted as not relevant.
10. In the background of the said provisions, first thing first, it is proved in the evidence of PW-2 that M/s Havell's Industries has its Trade Mark "HAVELL'S" registered since 01.09.1973 as per Certificate issued by the Registrar of Trade Marks Ex.PW2/F. Further, as per Certificate 8 Ex.PW2/E, the use of the Trade Mark "HAVELL'S" was further confirmed in respect of electric switches, electric wires, cables, meters (recording), ammeters, volmeteres, electric relays, thermostat, distribution boards all being goods included in Clause 9.
11. So far as issue of the Copyright is concerned, the mark of "Havell's" which is a triangular figure with 'H' inscribed on the upper portion and Havell's written beneath thereof is an artistic work within the meaning of Section 2 (c) of the Copyright Act. It is immaterial that it does not possess any artistic quality and the only apparent feature is that it has a distinctive identification. Evidence of PW-2 that his company has acquired a great reputation in the market in regard to electric wires, switches, cables and meters (recording) etc. was not challenged and the distinctive mark is without any doubt the property of the company. As a matter of fact, no dispute is raised that the trade mark "Havell's" and pictorial presentation are both protective properties and cannot be used or infringed upon.
12. The issue that begs consideration is whether the accused persons were infringing the Copyright and / or the Registered Trade Mark in the manner alleged by the prosecution and whether any recoveries were effected by PW-2 in association with PW-6 besides police witnesses? It is in the evidence of PW-2 that he along with police party reached at a Printing Press located in Shastri Park where accused Jai Praksh was present; that from the premises A-
9123, Shastri Nagar, Delhi seven rubbers stamps of "Havell's"
in blue colour were seized besides two printed paper rolls with the print "Havell's" which were seized vide memo Ex.PW 2/H signed by the appellant . The said case property was produced in the Court and was identified and marked Ex.P-1 collectively. It is then in the evidence of PW-2 Sewak Ram Arora that PW-8 SI Vikram Jeet interrogated the accused Jai Praksh who made a disclosure statement which is Ex.PW 2/B pursuant to which the accused took them to Kuchcha Tara Chand, Dariya Gunj from where 160 packed/unpacked finished/ unfinished with the same forged label and packing material of his company ie. M/s Havell's were recovered and seized vide memo Ex.PW 2/C signed by the accused Jai Prakash.
13. Evidence of Pw-2 was corroborated by PW-7 Ct. Mahipal who was tendered for cross examination but the opportunity was not availed by the appellant. Evidence of PW-2 was further corroborated by PW-8 SI Vikram Singh and I do not find anything in his evidence which would make the evidence of PW-2 not credible. It is in the cross examination of PW-2 that appellant Jai Prakash reached A-123, Shastri Nagar, Delhi where he had given an order for printing of the rolls on job order. There is no suggestion in the cross examination of PW-2 that the said property was planted and no recovery of counterfeit printed label / material was effected. PW-2 gave a vivid description of the room in Dariya Gang besides stating in his cross examination that the room was opened by appellant Jai Prakash who was having the 10 keys from where the recovery of duplicate printing rolls and material vide Ex.PW 2/E was made.
14. Much mileage was sought to be taken from the fact that no public witnesses were joined but at the same time, I do not find anything in the evidence of PW-2 and PW-8 that they had any false motive to implicate the appellant in this case. Though, there is a lapse in the investigation in as much as no evidence was collected as to who was the owner of the room located at Dariya Gang, at the same time, in as much as the keys were produced by the appellant Jai Prakash who opened the room, the inevitable inference is that he was in active and actual possession of room and the incriminating material.
15. Evidence of PW-2 further brings that on 14.08.1995 they came to know that appellant Rajan was running a shop at Bhagirath place and was in possession some counterfeit / duplicate kit kat fues of different capacities infringing their trade mark Havell's. He deposed that the place was raided and a huge quantity of switchgear / fues were seized as per memo Ex.PW 2/D signed by the accused Rajan Behl. PW-1 Ct. Anil corroborated the version of PW-2. The evidence of PW-2 read vis-a-vis PW-1 and PW-8 invite the inference that the accused / appellant Rajan was present in his shop and the counterfeit /duplicate material was lying in front of his shop. There is no weight in the arguments that no connection of the appellant has been shown with the goods so seized as it was lying in the open. PW-2 and police witnesses were 11 categorical that the counterfeit goods were lying in front of the shop of the appellant which is a common practice at the commercial complex at Bhagirath Place. Nothing is brought out in the evidence of PW-2 that he had any malice or ulterior motives to depose falsely against the accused. Evidence of PW-6 further corroborates the version that counterfeits /duplicate goods were lying in front of shop of the appellant. Version of PW-6 is uncontroverted and unrebutted. Further, nothing is brought in the evidence that the accused Rajan Behl had no knowledge of the goods being spurious.
16. It is also in the evidence of PW-2 that at the instance of accused Jai Praksh, he along with the police party went to Khurja, UP where 22 gunny bags and 2 dyes were seized as per memo Ex.PW 2/F signed by the appellant Jai Prakash.
17. It is pertinent to mention here that the entire case property reflected in Ex.PW 2/C, Ex.PW 2/D and Ex.PW 2/F was produced at the time of evidence of PW-2 and the entire case property was correctly identified and was marked Ex.P- 1 collectively. No objection by Ld. Defence Counsel or appellant was recorded in regard to any discrepancies in the recovered property. PW-2 was deposing in this case by virtue of attorney / authority granted to him vide document Ex.PW2/M. It is categorical evidence of PW-2 that there were 28-29 gunny bags that were recovered at the time of raid from a factory at Khurja, UP and the recovery was affected in the presence of police officials from the Local Police Station and from Delhi Police. Mere fact that the public witnesses 12 were not joined is hardly of any consequence. It is common fact that it is very difficult to join public witnesses in a case like this. Moreover, the recovery of such spurious goods have not even been challenged in the evidence.
18. Thus, it has been proved beyond reasonable doubt by the prosecution that accused Jai Prakash was found in possession of printing rolls that were having the pictorial presentation of 'Havell's' which infringed the copyright of the complainant. Accused Jai Prakash was also found in possession of such printing rolls having false trade mark and thereby infringing trade marks of the complainant besides having dye, block for such things. Similarly, accused Rajan Behl was found in possession of spurious goods belonging to the complainant also falsifying / infringing the trade mark of the complainant. The goods were stored for sale with a view to earn profits. Therefore, the appeal assailing the conviction is liable to be dismissed and conviction u/s 63 of Copyright Act read with Section 78 & 79 of Trade Marks & Merchandise Act are hereby upheld.
19. Coming to the challenge to the impugned Order on Sentence, as accused Rajan Behl is not present today and unwell, put up for hearing on sentence on 21.05.2010.
ANNOUNCED IN OPEN COURT (DHARMESH SHARMA) TODAY ON 18.05.2010 ASJ-II, NORTH DISTRICT, DELHI.
13IN THE COURT OF SH. DHARMESH SHARMA :
ADDITIONAL SESSIONS JUDGE-II, NORTH DISTRICT :
DELHI CRIMINAL APPEAL : 01/2010 Date of filing of Appeal: 18.01.2010 Date on which arguments heard and Judgment reserved: 11.05.2010 Date of Judgment : 18.05.2010 Rajan Behl S/o Sh. Kirori Mal R/o K-3, Ajay Enclave, Tilak Nagar, New Delhi .............Appellant Versus The State (Delhi Admn.) ..........Respondent CRIMINAL APPEAL : 03/2010 Jai Prakash S/o Sh. Kirori Mal R/o 4/6, Gali Paharwali, Chatta Mal Mian, Daryaganj, Delhi.
..........Appellant Versus The State (Delhi Admn.) ..........Respondent 14 APPEARANCE:-
Both the appellants/accused in person along with Mr. Manish Talwar, advocate.
Mr. Maqsood Ahmed, Ld. APP for the State / respondent.
21.05.2010 ORDER ON SENTENCE :
1. Heard on the point of sentence. As regards appellant Jai Prakash, it is urged that he is about 50 years of age having two minor children one daughter aged about 12 years and son aged about 18 years. It is urged that he has already closed his business and he is now running an auto rickshaw and he is the sole bread earner of his family. As regards to appellant Rajan Behl, it is urged that he is about 60 years of age. He is still running his business in electrical appliances such as kit kat / fues. It is urged that appellant Rajan Behl is also a family man.
2. Mr. Talwar, Ld. Counsel for the appellants / accused has referred to decision in Bhagat Ram v. State of H.P., 1989 CRI. L. J. 2520 and in reference to para 18 it is urged that since the appellant Rajan Behl is very old, he may be released on probation for good conduct. The case law cited is distinguishable as it was a case where trial had taken place in regard to offence u/s 304 Part -II read with Section 325 of IPC and accused was found to be 78 years having faced the trial for about seven years. Finding 15 parallel with the cited case, Ld. Counsel urged that appellants have faced trial for 15 years now and it is requested that they may be released on probation. It is also pointed out that they were in judicial custody for seven days after their arrest.
3. Mere fact that the accused have faced trial more than 15 years is not special reason but a general one.
Moreover, no case law has been cited to the effect that where minimum sentence is prescribed by law, relief of probation can be extended to the convicts. In the present case, both the appellants were found in possession of counterfeit printed rolls infringing the Copyright and Trade Mark "Havell's" belonging to the complainant. It is also born out from the record that recovery of dies and blocks were effected at the behest of appellant Jai Prakash from Khurja, UP. Further, it is also brought out that spurious / counterfeit kit kat fues infringing the trade mark of the complainant were also found in active and physical custody of the appellant Rajan Behl from his shop.
4. The sale or marketing of spurious counterfeit electric switch gear / fues must have posed grave danger to the society at large. In fact, the damage and loss to the customers who were defrauded in buying and using sub standard goods cannot be even imagined. The offences under section 63 Copyright Act read with Section 78 & 79 of Trade Marks & Merchandise Act are economic offences which effect the quality of life and well being of society at 16 large. I am therefore, not inclined to release the appellants on probation.
5. Mr. Talwar has also urged that during the relevant time when the trial was pending before the Ld. ACMM, Delhi the provisions of plea bargaining under Chapter XXI A of the Cr.P.C were not invoked and he pointed out that even at appellate stage an application was moved for plea bargaining. I am afraid the application for plea bargaining was never moved before the Ld. ACMM, Delhi at any point of time. Provisions of Chapter XXI A are in force w.e.f. 05.07.2006. The request for entertaining plea bargaining at an appellate stage does not appear to be bona fide.
6. Moreover, bare perusal of Section 265 B of Cr.P.C.
indicates that request for plea bargaining could only be moved before a Trial Court and not at appellate stage. To my mind, the expression "in such offences pending for trial implies a trial envisaging taking of cognizance , summoning of accused persons, framing of charge or notice as per Section 251 Cr.P.C. recording of evidence of prosecution witnesses, statement of accused persons or to sum up, following the procedure for trial in summons and warrant cases as per the Cr.P.C.
7. Though an appeal is a continuation of trial, the scope is limited only to re-appraise or re-appreciate the evidence led before the Trial Court and empowering the appellate court to form an opinion which may be different from the 17 one taken by the trial court. All said and done, the appellants have contested the charges all these years in the trial and they had ample opportunities to come clean with such plea at an earlier stage which they did not. The consequences are grave for the State in terms of time, energy and monetary factors. To allow them at this stage to revert to the position of plea bargaining, would be nothing but gross abuse of the process of the law.
8. All the same keeping in mind that the appellants have faced this trial for 15 long years, the sentence of rigorous imprisonment for the period of six months imposed by the Ld. ACMM, Delhi appears to be harsh and therefore the same is modified and reduced to period of 45 days of simple imprisonment both u/s 63 of the Copyright Act as well as under Section 78 & 79 of Trade Marks & Merchandise Act.
9. Fine has already been deposited. It is needless to state that the sentences shall run concurrently. The appellants be taken into custody to serve the sentence.
ANNOUNCED IN OPEN COURT (DHARMESH SHARMA) TODAY ON 21.05.2010 ASJ-II, NORTH DISTRICT, DELHI.
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