Bangalore District Court
The Representative Of Ranjan Narola ... vs No.3 Who Was In Madeena Hosiery Shop ... on 29 October, 2015
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 29th day of October 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.C.C.No 23034/2011
2.Date of Offence 11-5-2011
3.Complainant State by City market Police Station
4.Accused 1. Saheer
S/o. Syed Ahmmed aged 30 years,
No.78, 2nd Cross, Hosahalli Main
Road, Goripalya, Bangalore.
2. Parveezbabu (Abated)
3. Dinesh S/o. Ramaiah, aged 22
years, No.21, 21st Main Road,
Sidheshwaranagar, Marenahalli,
Bangalore.
4. Zameer C/o. Alkab Hosairy,
A.S.Char Street, City Market,
Bangalore.
5. Sameevulla (Abated)
6. Farooq C/o. Madeen Hosairy
A.S.Char Street, City Market,
Bangalore.
5. Offences complained U/s.51 (A) (B) and 63 of Copyright
2 C.C.No.23034/2011.
of Act, 1957
6.Plea Accused Nos.1, 3, 4 and 6 pleaded
not guilty.
7.Final Order Accused Nos.1, 3, 4 and 6 are
acquitted
8.Date of Order 29-10-2015
REASONS
The Sub Inspector of Police, City Market Police Station,
Bangalore has filed this charge sheet against accused Nos.1 to
6 for the offences punishable U/s.51 (A), (B) and 63 of
Copyright Act, 1957. It appears during the pendency of this
case accused Nos.2 and 5 dead and as such this case against
them stands abated.
2. The brief facts of prosecution case are that, on 11-5-
2011 in Alkab Hosiery, Madeena Hosiery and Meena Hosiery
shops situated at A.S.Char Street, at City Market within the
limits of City Market Police station, the accused No.6 Farook
being the owner of Madeena Hosiery shop, accused No.3
Dinesh being the worker in the said shop, the accused No.2
Parviz babu being the owner of Meena Hosiery shop, the
accused No.5 Sameeulla being the owner and accused No.1
Shaheer being the worker of Alkab Hosiery shop, were found
in possession and selling of counterfeit T-shirts and jeans
3 C.C.No.23034/2011.
pants in the brand name of Adidas and Reebok without
obtaining any authorization or written consent from the
copyright holder and selling the same as if the said T-shirts
and jeans pants are supplied by the authorized agents of
copyright holder companies and cheated the general public as
well as the copyright holder companies and thereby committed
aforesaid offences.
3. The accused Nos.1, 3, 4 and 6 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, 3, 4 and 6. After hearing on charges, this court framed
the charge for the offences punishable under section 63 of
Copyright Act, 1957 and Sec.420 of IPC., and questioned the
said accused persons regarding the charge made against
them, they denied the charge and claims to be, tried.
4. The prosecution in order to prove its case got
examined three witnesses as P.Ws.1 to 3 and got marked
twelve documents at Exs.P1 to P.12 and also marked one
material object as per M.O-1. Since C.Ws.2 to 4 and 6 did not
turn up before this court, by rejecting the prayer of Sr.APP,
this court dropped the examination of said witnesses.
5. Thereafter, this court examined the accused Nos.1, 3,
4 and 6 as required U/s.313 of Cr.P.C., the accused persons
4 C.C.No.23034/2011.
denied the incriminating evidence appeared against them and
submitted that they have no defence evidence.
6. I have heard the arguments on both sides.
7. The prosecution to prove guilt against the accused
Nos.1, 3, 4 and 6 has examined three witnesses. P.W.1-
Thyagu is the complainant and representative of Ranjan
Narola Associates. P.W.2-Prahlad Kulkarni is the investigating
officer. P.W.3-Ramegowda.P.S is the police constable who said
to have participated in the raid. It appears, inspite of giving
sufficient opportunities, the prosecution has not examined the
independent seizure mahazar witnesses.
8. I have carefully perused the evidence on record.
9. The testimony of P.W.2-Prahlad Kulkarni indicating
that on 11-5-2011 he received written complaint from
complainant the representative of Ranjan Narola Associates
pertaining to selling of counterfeit T-shirts and jeans pant in
Alkab Hosiery, Madeen Hosiery, New Meena Hosiery and
Corporate clothing shops without obtaining any license or
written consent from the copyright holder. Accordingly, he
registered the case. On the same day at 3-30 p.m., he, his staff
along with panchas and complainant visited Madeena Hosiery
shop situated at Channappa Mansion A.S.Chaar Street and
5 C.C.No.23034/2011.
found 120 T-shirts in the brand name of Adidas and 110
pants in the brand name of Reebok. He found the accused
No.3-Dinesh in the said shop and the said Dinesh confessed
that he is selling the same un-authorizedly. Thereafter, he
visited Alkab Hosiery shop and found 140 pants and 80 T-
shirts in the brand name of Reebok. He deputed his staff near
said shop and thereafter visited New Meena Hosiery shop and
found 15 pants in the brand name of Reebok, 50 T-shirts in
the brand name of Adidas. He deputed his staff and again
visited Corporate Clothing Center shop but he did not found
any duplicate or counterfeit cloths. P.W.1 the complainant has
identified the said cloths as counterfeit. Accordingly, he seized
the same by preparing the seizure mahazar. He enquired
accused No.3 who was in Madeena Hosiery shop regarding
said cloths and came to know that his shop owner by name
Farook the accused No.6 herein asked him sell the same. He
found one Parveezbabu the accused No.2 herein in Meena
Hosiery shop and the said accused No.2 has stated that as per
the direction of his owner accused No.5-Sameulla he is selling
the same. Again, he enquired one Shaheer who was in the
Alkab Hosiery shop and came to know that as per the
direction of his owner accused No.4-Zameer he is selling the
same. Thereafter, he took the custody of said persons and
returned to the police station along with seized cloths. He
recorded the statements of witnesses and after completion of
investigation filed charge sheet against accused persons.
6 C.C.No.23034/2011.
10. The testimony of P.W.1-Tyagu the complainant
indicating that on 11-5-2011 he lodged complaint to the City
Market Police Station in respect of selling of counterfeit cloths
in the brand name of Adidas and Reebok in Madeen, Alkab,
New Meena Hosiery and Corporate clothing shops.
Accordingly, on the same day he along with police visited said
shops and police found counterfeit cloths in the brand name of
Adidas and Reebok. The police seized 80 T-shirts in the brand
name of Adidas, 140 track pants in the brand name of Reebok
from Alkaba Hosiery shop, 50 T-shirts in the brand name of
Adidas and 50 track pants in the brand name of Reebok from
New meena Hosiery shop, 130 T-shirts in the brand name of
Adidas, 110 track pants in the brand name of Reebok from
Madeena Hosiery shop and brought the same to the police
station. The police took custody of three persons by Saheer,
Parvez babu and Dinesh. However, he cannot identify them
though he saw them in the above said shops.
11. The testimony of P.W.3-Ramegowda P.S the police
constable indicating that on 11-5-2011, C.W.7 the PSI of his
Police Station PW.2 herein took him, his police staff, along
with complainant to the A.S.Char Street. PW.2 deputed him
near Alkab Hosiery shop. At 10-00 a.m., PW.2 and the
complainant visited said shop and seized 140 pants in the
brand name of Reebok, 80 T-shirt in the brand name of
Adidas. The complainant identified the said cloths as
7 C.C.No.23034/2011.
counterfeit. Thereafter, mahazar was prepared and brought
the seized cloths to the police station for further investigation.
P.W.3 has identified one person by name Shaheer the accused
No.1 herein as the person who was in the said shop.
12. As stated above, inspite of giving sufficient
opportunities, the prosecution has not examined independent
seizure mahazar witnesses and other police staff, who have
been, deputed near other two shops where raid conducted.
13. In a case like this, the offence has to be, proved in a
circumstantial evidence by way of proving the seizure mahazar
of seized cloths beyond all reasonable doubt. Further, the
prosecution has to prove that the seized cloths are counterfeit
in the brand name of above referred companies. Further, the
prosecution has to prove that the Ranjan Narola Associates
group of companies had copyright over the brand name Adidas
and Reebok. Further, the prosecution has to prove that the
accused persons are the owners and workers in the above
referred three shops.
14. As stated above the prosecution to prove seizure
mahazar has examined three witnesses. P.W.1-Tyagu is also
seizure mahazar witness. P.W.2-Prahalad Kulakarni police
sub inspection has conducted seizure. P.W.3-Ramegowda P.N.
is the police constable who participated in the seizure
8 C.C.No.23034/2011.
mahazar. Now let us consider whether the prosecution is
successful in proving the seizure mahazar beyond all
reasonable doubt. The testimony of PW.1 indicating that after
lodging complaint, P.W.2 the police sub inspector along with
his staff visited Madeena, Alkava, New Meena Hosairy and
Corporate Clothing shops. As stated above Ex.P1 is the
seizure mahazar. As per Ex.P.1 the PSI of City Market Police
Station i.e., P.W.2 herein upon the complaint of P.W.1, visited
A.S. Char Street and called C.W.2-Yogesh and C.W.3 Deepak
as panchas. P.W.2 requested said C.Ws.2 and 3 to stand as
panchas to the raid to be conducted pertaining to selling of
counterfeit cloths. After their agreement, P.W.2 took C.Ws.2
and 3 the complainant and his staff to the said A.S Char
Street. The complainant P.W.1 herein showed one shop by
name Alkaba Hosairies and stated that the owner of the said
shop is selling counterfeit cloths in the brand name of his
company. Accordingly, P.W.2 deputed one police constable by
name Ramegowda P.W.3 herein near the said shop with a
direction, not to permit the owner of said shop, to move any
thing. It appears though P.W.1 has deposed regarding visiting
of said shops and seizure of cloths, he has not stated
regarding the presence of mahazar witnesses at the time of
conducting the raid. However, in the further chief
examination though he admitted the presence of the mahazar
witnesses, his said version is not natural one and creates
doubt. However, his evidence further indicates that on 11-5-
9 C.C.No.23034/2011.
2011, P.W.2 the Police Sub Inspector of City Market Police
Station conducted raid and seized cloths, in the brand name of
Adidas and Reebok. P.W.1 though subjected to cross
examination, but nothing worth elicited from his to doubt his
testimony.
15. P.W.2 has also deposed regarding the seizure
mahazar and seizure of counterfeit cloths in the brand name
of Adidas and Reebok by preparing seizure mahazar as per
Ex.P2. Even, though P.W.2 also subjected to cross-
examination, but nothing worth elicited from him but doubt
his testimony in the matter of preparing of seizure mahazar
and seizure of cloths, in the brand name of Adidas and
Reebok. As stated above, P.W.3 has deposed regarding the
raid in Alkava Hosairy shop and seizure of 140 pants in the
brand name of Reebok and T.shirts in the brand name of
Addidas, but he has not signed the seizure mahazar at Ex.P.2.
Even though P.W.3 also cross-examined but nothing worth is
elicited from him to doubt his testimony in the matter of raid,
seizure of pants and T. shirts in the brand name of Reebok
and Adidas.
16. As stated above in spite of giving sufficient
opportunities, the prosecution has not examined other
witnesses on record, more particularly the independent seizure
mahazar witnesses. In my opinion, even though the
10 C.C.No.23034/2011.
prosecution has not examined independent seizure mahazar
witnesses, I have no reason to disbelief the testimony of
P.Ws.1 and 2. Therefore, I am of the considered opinion that
the prosecution has successfully proved the seizure mahazar
of Pants and T-shirts in Alkab Hosiery and Madina Hosiery,
new Meena Hosiery shop and corporate clothing shops in the
brand name of Adidas and Reebok.
17. In my opinion, even though the prosecution has
successfully proved the seizure mahazar, still in order to
connect the accused persons for the offences alleged, it has to
prove that the seized cloths are counterfeit in the brand name
of Adidas and Reebok. It appears the investigating officer
during the course of investigation has not at all obtained any
opinion from any expert in order to confirm where the sized
cloths are counterfeit in the brand name Adidas and Reebok.
Further, it appears the investigation officer relaying upon the
say of complainant has concluded that the seized cloths are
counterfeit in the brand name of Adidas and Reebok.
Moreover, he has not obtained independent report from the
complainant in order to confirm whether the seized cloths are
counterfeit, in the brand name of Adidas and Reebok.
However, the testimony of P.W.1 further indicating that he
trained to give opinion about differences between counterfeit
and original cloths in the brand name of Adidas and Reebok.
It appears the investigation officer has not obtained any
11 C.C.No.23034/2011.
certificate issued by competent authority certifying that P.W.1
had trained to give opinion regarding counterfeit and original
cloths in the brand name of Adidas and Reebok. In my
opinion, mere saying by P.W.1 that he trained to identify the
differences between counterfeit and original cloths in the
brand name of Adidas and Reebok is not sufficient to conclude
that P.W.1 is the expert in giving opinion in respect of seized
cloths. Even assuming that P.W.1 duly trained to give opinion
regarding counterfeit and original cloths in the brand name of
Adidas and Reebok, still the investigating officer should have
obtained report in respect of seized cloths from authorized
expert. Unfortunately, the investigation officer has not done
so for the reason best known to him and it appears relaying
upon say of P.W.1 has concluded that the seized cloths are
counterfeit in the brand name of Adidas and Reebok, which is
not in accordance with law. In my opinion, the testimony of
P.W.1 that seized cloths is counterfeit in the brand name of
Adidas and Reebok not supported by documentary evidence.
Therefore, the testimony of P.W.1 is not sufficient to hold that
the seized cloths are counterfeit in the brand name Adidas and
Reebok. Accordingly, the prosecution has failed to prove that
the sized cloths are counterfeit in the brand name of Adidas
and Reebok. Further, the prosecution has not marked any
acceptable documents to show that some company had
copyright over Adidas and Reebok branded cloths. It appears,
even though the investigation officer has collected trademark
12 C.C.No.23034/2011.
certificates of Adidas and Reebok, he has not collected
copyright certificate. Admittedly, no charge filed against
accused persons under Trade Mark Act, therefore, whatever
the documents collected by investigating officer and marked
through P.W.1 as Exs.P3 to P11, not sufficient to hold that the
prosecution has proved that Adidas and Reebok companies
had copyright over Adidas and Reebok branded clothes.
18. Further the prosecution has not examined any
witnesses and has not been marked any documents to prove
that above named accused persons are the owners of Alkava
Hosiery, Madeena Hosiery and Meena Hosiery shops where the
raid conducted. Therefore, having regard to the facts and
circumstances of the case and the evidence available of record,
I am of the considered opinion that the evidence of record is
insufficient to conclude that the prosecution has proved its
case beyond all reasonable doubt. Accordingly, the accused
Nos.1, 3, 4 and 6 are entitled for benefit of doubt. In the
result, I proceed to pass the following:-
ORDER
This court did not found guilt of accused Nos.1, 3, 4 and 6 for the offences punishable under section 63 of Copyright Act, 1957 and Sec.420 of IPC.
13 C.C.No.23034/2011.Hence, acting under Sec.248 (1) of Cr.P.C., the accused Nos.1, 3, 4 and 6 have been acquitted for the above-referred offences.
Their bail bonds and surety bonds stand cancelled.
Office to return M.O.1 to C.W.1 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 29th day of October 2015) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1 Tyagu P.W.2 Prahlad Kulkarni P.W.3 Ramegowda P.N
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1 Complaint
Ex.P1(a) Signature of PW 1
Ex.P1(b) Signature of P.W.2
Ex.P2 Mahazar,
Ex.P2(a) Signature of P.W.1
Ex.P.2(b) Signature of P.W.2;
14 C.C.No.23034/2011.
Exs.P.3 and Power of attorney;
4
Exs.P.5 to 11 Trade Mark certificate Ex.P.12 FIR Ex.P.12(a) Signature of P.W.1 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION :
M.O.1 Pants and T-shirts LIST OF WITNESSES EXAMINED, DOCUMENTS &
MATERIALS MARKED ON BEHALF OF THE DEFENCE: NIL IX ADDL.C.M.M. 15 C.C.No.23034/2011. Judgement pronounced in the open court vide separate sheet.
ORDER This court did not found guilt of accused Nos.1, 3, 4 and 6 for the offences punishable under section 63 of Copyright Act, 1957 and Sec.420 of IPC.
Hence, acting under Sec.248 (1) of Cr.P.C., the accused Nos.1, 3, 4 and 6 have been acquitted for the above-referred offences.
Their bail bonds and surety bonds stand cancelled.
Office to return M.O.1 to C.W.1 after appeal period is over.
IX ADDL.C.M.M.