Delhi District Court
State vs . Sanjay Jain on 15 February, 2013
IN THE COURT OF SH. SHAILENDER MALIK :
ACMM/01, NORTH EAST, KARKARDOOMA COURTS : DELHI
State Vs. Sanjay Jain
FIR No. 130/02
U/s 63 Copy Right Act 78 and 79 of T. M. M.Act
PS M. S. Park
JUDGEMENT
1 Sl. No. of the case : 231/03
2 Date of commission offence : 10.05.2002
3 Date of institution of the case : 25.02.2003
4 Name of the complainant : Shri Rajesh Singh
Name of accused, parentage & : Sanjay jain S/o Shri Sumat
Address Parsad Jain R/o: H. N. H 104,
gali no. 10, Balbir Nagar,
5 Shahdara, Delhi
6 Offence complained of or proved : 63, 65 and 68A of Copy Right
Act r/w 78,79 and 103 of Trade
Mark Act
7 Plea of the accused : Pleaded not guilty
8 Date of reserve for order : 15.02.2013
9 Final order : Acquitted
10 Date of Judgment : 15.02.2013
BRIEF REASONS FOR THE DECISION OF THE CASE : -
FIR No. 130/02 Page 1 of 8 pages
Accused Sanjay Jain S/o Sumat Parsad Jain was sent up to face trial for the offence under section 63 Copy Right Act as well as 78 and 79 of Trade Mark and Merchandise Act. Precise facts of the case are that on 10.5.02, complainant Rajesh Singh of EIPR(India Ltd.) gave a written complaint to SHO, PS M . S. Park wherein it is stated that they are authorised by "Electric Lamp and Component Association of India" (ELCOMA) to detect any violation/infringement or unauthorised use of brand name and to file the compliant in this regard. It is stated int he complaint that after conducting the survey it was revealed that one person Sanjay Jaiin is manufacturing spurious products of electronics company at house no. E 306, gali no. 11, Ashok Nagar, Delhi. It is stated that appropriate action be taken.
Upon receipt of the said complaint, same was marked to SI Partap Singh to take appropriate steps. Thereafter SI Partap Singh along with Ct. Satbir and the complainant Rajesh Singh went to the above said house no. E 306, gali no. 11, Ashok Nagar, Delhi where from IO allegedly found different components like tube lights, raw material, Chokes, patti and other materials. Out of recovered articles, samples were separated and were sealed and remaining property was also sealed. After recovery, tehrir was prepared on the complaint of complainant Rajesh Singh, and present case was registered.
After the registration of the FIR, since accused was not found at the above said house E 306, gali no. 11, Ashok Nagar, Delhi he was subsequently arrested by the IO. IO recored the statements of different FIR No. 130/02 Page 2 of 8 pages witnesses and upon completion of investigation chargesheet was filed.
Copy of charge sheet was supplied to the accused free of costs and Ld. Predecessor of this court after considering the material available on record framed charge for the offence under section 63,65 and 68A of Copy 'Right Act read with Section 78/79/103 of Trade Mark Act , to which accused pleaded not guilty and claimed trial.
In order to substantiate the charge prosecution has examined as many as seven witnesses.
PW1 is Anuj Sharma who is Dy. Manager of Surya Roshni Ltd and has testified that he had been working in the said firm and Shri B. D. Aggarwal was Chairman /MD of "Electric Lamp and Component Association of India" (ELCOMA) which is a association of 6 major companies including Surya Roshni and in favour of PW1 Power of Attorney Ex. PW1/A was issued by Shri B. D. Sharma. Certificate of registration of ELCOMA is Ex. PW1/B, rules and regulations are Ex. PW1/C and letter of Shri B. D. Aggarwal is Ex. PW1/D, letter of appointment of AR is Ex. PW1/E and particulars of copy right claims are Ex. PW1/F to Ex.PW1/I. PW2 is HC Kamal Singh , MHCM of PS M S park who testified that SI Partap Singh had deposited seven sealed pulandas of case property in this case sealed with the seal of PSY in malkhana of PS regarding which entry was made in register no. 19 and same is Ex. PW2/A. PW2 further testifies that he had sent the case property to CFSL, Hyedrabad vide RC no. 110/21 on 24.7.02 .
PW3 is H. K. Ghosh who brought the original registration documents FIR No. 130/02 Page 3 of 8 pages regarding copy right from Copy Right office and same is Ex. PW1/E and work is Ex. PW3/A. PW4 is Ct. Satbir who had testified that on 10.5.02 while he was posted at PS M. S. Park , on that day, SI Partap Singh had received a complaint from Rajesh Singh regarding making of duplicate tube lights of Bajaj and Surya . PW4 stated to have accompanied the IO and the complainant and had gone to house no. E 306, gali no. 11, Ashok nagar which belonged to Gajender Singh . PW4 says that complainant had told them the duplicate material of Bajaj and Surya company was being manufactured at the above said place . PW4 further says that at the instance of the complainant from the room of the above said house, 127 Surya Chokes , 158 Bajaj Chokes, raw material of 257 bajaj Chokes , 424 Surya Chokes cover and 11 Surya patti and 18 bajaj patti with other material were recovered, out of which samples were taken by the IO and were given Mark as 1A to 7A and remaining case property was sealed and was taken into police possession vide seizure memo Ex. PW4/A . PW4 has further testified regarding arrest on 22.5.02 and arrest memo of accused Sanjay Jain is Ex. PW4/B and personal search memo is Ex. PW4/C, disclosure statement is Ex. PW4/D. Samples of original goods were also taken into police possession by the IO vide seizure memo Ex. PW4/E which were also duly sealed. In terms of his disclosure accused had pointed out the place vide pointing out memo Ex. PW4/E1. PW4 has further testified that while identifying the case property Ex. P1 , Ex. P2 and Ex. P3 collectively that the same was recovered from E 306, gali no. 11, Ashok Nagar which was being manufactured at the instance of the accused.
FIR No. 130/02 Page 4 of 8 pages PW5 is HC Chander Parkash who proved the RC no. 110/21 dated 24.7.02 vide which exhibits were sent to CFSL, Hyderabad . Entry in register no. 21 is Ex. PW5/A. PW6 is ASI Yasin Mohd. who proved the formal registration of the FIR Ex. PW6/A upon receipt of rukka sent by SI Partap Singh through Ct. Satbir. Endorsement on the rukka is Ex. PW6/B. PW7 is IO SI Partap Singh who has testified that on 10.05.02, complainant Rajesh Singh met him and made a complaint regarding making of duplicate tube lights etc. of different companies. Said complaint was marked to him and he along with complainant and Ct. Satbir had gone to gali no. 11, House no. E 306, Ashok Nagar. PW7 says that when he entered at the first floor of the said house in one room they found raw material of tube lights of different companies. PW7 testifies regarding recovery of different article as well as testified regarding taking of samples and seizure of the case property vide memo Ex. PW4/A. PW7 further testifies that genuine sample of material were taken into possession vide seizure memo Ex. PW4/E and PW7 testifies regarding preparing of rukka Ex. PW7/A which was given to Ct. Satbir for registration of the FIR. PW7 further testified regarding preparing of site plan Ex. PW7/B and regarding arrest of the accused Sanjay on 22.5.02 vide memo Ex. PW4/B and C and disclosure statement Ex. PW4/D as well as disclosure statement recorded on 23.5.02 as Ex. PW4/G . Memo regarding recovery is Ex. PW4/E and case property is Ex. P1 to P3. PW7 is HC Bholanath.
In this case, complainant Rajesh Singh could not be examined despite issuing summons time and again and ultimately summons were given to the FIR No. 130/02 Page 5 of 8 pages IO who also could not serve the summons to the complainant despite trying to trace the whereabouts of the witness regarding which statement of the IO was recorded on 22.11.2012 as well as regarding witness Gajender Kumar also statement of the IO was recorded on 15.2.2013 that summons could not be served.
Upon completion of prosecution evidence, all the incriminating evidence were put to the accused in statement of accused recorded u/s 281 Cr. PC, in which while denying the evidence accused has taken the plea of false implication.
No evidence was led in defence.
I have heard Ld. APP for the State and Shri A. K. Singhal Ld. Counsel for the accused .
Having heard the submissions at Bar and having gone through the record carefully it would be evident from the perusal of the evidence that there are two recovery witnesses namely PW4 Ct. Satbir and PW7 IO SI Partap Singh. If we carefully go through their evidence, in totality, it would be evident that on 10.05.2002 SI Partap Singh along with Ct. Satbir and complainant Rajesh had gone to house no. E 306, gali no. 11, Ashok Nagar on 11.3.06. According to PW4, said house belonged to one Gajender Singh and complainant told the police party that duplicate material of Bajaj and Surya Company are being manufactured there and thus at the instance of the complainant from a room of the said house recovery was effected of different materials like 127 Surya chokes, 158 Bajaj raw material of 257 Bajaj choke covers and 424 Surya Chokes cover of tube lights. Similarly FIR No. 130/02 Page 6 of 8 pages patti(long board of tube light) as well as in lay cards were recovered. Though case property has been sought to be proved in the evidence of PW4 but PW4 admitted in cross examination that complete case property has not been produced. PW4 has stated in cross examination that today 34 patti (Long plates of Tube light) has been produced whereas as per seizure memo Ex. PW4/A it is mentioned at para no. 7 that 11 Surya Patties with chokes and 12 Bajaj Pattis with chokes and 6 Bajaj Patti without chokes were taken into police possession , out of which two were separated as sample.
If we go through further cross examination of PW4, it would be clear that witness has admitted that complete case property has not been produced and has not been properly kept in police custody. Moreover PW4 has admitted that the house where raid was conducted the name of the owner was Gajender who was not present there when raid was conducted but one lady and one gentleman was found there, however, their statement was not recorded by the IO. Evidently recovery has not been effected in the presence of any independent witness which creates doubt in the facts and circumstances of the present case because police agency was having prior information regarding alleged manufacturing of duplicate raw material of tube lights and electric appliances at a private house still the occupants of the said private house were not made witness to the alleged recovery. Admittedly accused was not present at the time when raid was conducted. Witness Gajender whose statement was subsequently recorded has not been examined by the prosecution. Only Pvt witness complainant has also not been examined.
If we also go through the evidence of another recovery witness PW7 FIR No. 130/02 Page 7 of 8 pages SI Partap Singh , his evidence also reveals that no independent was joined at the time of entering into the house no. E 306, gali no. 11, Ashok Nagar. It is also admitted case of the prosecution that accused was not arrested at the time when raid was conducted . In such situation, there is no evidence worth the name on the record showing any connection of recovery with accused. From the evidence of PW7, it would be evident that accused Sanjay was arrested by SI Partap Singh on 22.5.02 whereas alleged recovery was effected on 10.05.02. IO has failed to explain the basis of arrest of the accused except the name of the accused being mentioned by the complainant when it could not be proved by any documentary or oral evidence that accused was tenant in the said house where recovery was effected. There is nothing on record connecting the accused with the alleged manufacturing of duplicate electric material of tube light. Thus, when recovery in itself is doubtful and could not be connected with the accused, I find prosecution has failed to establish the charge against the accused . As a consequence therefor accused stands acquitted.
ANNOUNCED IN OPEN COURT
ON 15.02.2013 (SHAILENDER MALIK)
ACMMI, North East,
KARKARDOOMA COURTS:DELHI
FIR No. 130/02 Page 8 of 8 pages