Bangalore District Court
Has Identified Three Pairs Of Chappals vs No.2 Is The Cashier Of Hum India Fab ... on 8 January, 2016
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 8th day of January 2016
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 10873/2011
2.Date of Offence 29-1-2011
3.Complainant State by Commercial Street Police
Station
4.Accused 1. Uday Gokani
S/o. vajubai, Aged 46 years,
No.403, 1st Cross, 6th Main Road,
2nd Stage, HAL, Bangalore.
2. Lokesh Vadvani
S/o Late Narayanas Vadvani, aged
26 years, No.6, 2nd Cross, 2nd
Main, Kaggadasapura, Bangalore.
5. Offences complained U/s.51(a), (b) and 63 of Copyright
of Act and section 420 of IPC.
6. Plea Accused Nos.1 and 2 pleaded not
guilty.
7. Final Order Accused Nos.1 and 2 are acquitted
8. Date of Order 8-1-2016
2 C.C.No.10873/2011.
REASONS
The Sub Inspector of Police, Commercial Street Police
Station, Bangalore has filed this charge sheet against the
accused Nos.1 and 2 for the offences punishable under section
51(a), (b) and 63 of Copyright Act, and section 420 of IPC.
2. The brief facts of the prosecution case are that on
29-1-2011 in Hum India limited Shop situated at No.6,
Commercial Street, within the limits of Commercial street
Police Station, the accused No.1 being its owner and accused
No.2 being its cashier were found in possession and selling of
counterfeit/duplicate bag, ladies purse, gents purse and other
articles in the brand name of LV and Burberry over which M/s
Louis Vuitton Malletier company and Burberry Asia Limited
Company had copyright without there being any authorisation
or written consent from the copyright holder and further the
accused persons were selling the same to the general public as
if the said product are being supplied by copyright holder
company and thereby infringed the copyright of the company,
cheated the general public as well as copyright holder
company and committed aforesaid offences.
3. The accused Nos.1 and 2 are on bail. On receipt of
chargesheet, this court took cognizance of the offences and
furnished the copies of the prosecution papers to the accused
persons. After hearing on charges, this court has framed the
3 C.C.No.10873/2011.
charge for the offences punishable under section 63 of
Copyright Act, 1957 and section 420 of IPC for which the
accused persons pleaded not guilty, and claims to try.
4. The prosecution in order to prove its case got
examined two witnesses as P.Ws.1 and 2 and got marked
eleven documents as per Exs.P.1 to P.11. Since, C.Ws.2 to 6
and 8 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 and
2 as required U/s.313 of Cr.P.C., the accused persons 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. As stated above the prosecution to prove the guilt
against accused Nos.1 and 2 has examined two witnesses.
P.W.1-Ashwathaiah is the head constable who is the seizure
mahazar witness. P.W.2-R.Sathish Kumar is the complainant.
In spite of giving sufficient opportunities the prosecution has
not examined other witnesses on record i.e., independent
seizure mahazar witnesses, police staff who attended at the
time of conducting raid and the Investigating Officer who
conducted the investigation.
4 C.C.No.10873/2011.
8. It is the specific allegation of the prosecution that
accused Nos.1 and 2 being the owner and cashier of Hum
Indica Fab shop respectively were possessing and selling
counterfeit products in the brand name of LV and Burberry
over which M/s Louis Vuitton Malletier company and Burberry
Asia Limited Company had copyright without there being any
authorisation or written consent from the said copyright
holders and further the accused persons were selling the same
to the general public as if said produces are being supplied by
the copyright holder and thereby cheated the copyright holder
company as well as general public. In order to prove the above
said allegation the prosecution has to prove the seizure
mahazar of the seized counterfeit products beyond all
reasonable doubt. Further, the prosecution has to prove that
the seized products as per P.F.No.19/2011 item No.1 to 21 are
counterfeit in the brand name of M/s Louis Vuitton Malletier
Company and Burberry Asia Limited Companies. Further, the
prosecution has to prove that the said M/s Louis Vuitton
Malletier Company and Burberry Asia Limited Company had
copyright over the seized LV and Burberry products. Further,
the prosecution has to prove that accused No.1 is the owner
and the accused No.2 is the cashier of Hum India Fab Limited
Shop respectively where the raid conducted.
9. The testimony of P.W.1 indicating that on 29-1-2011
at 5-00 p.m., when he was in station duty, C.W.8 the PSI of
5 C.C.No.10873/2011.
his police station, took him, his colleagues C.W.5 to 7 on the
basis of complaint of one Sathish Kumar the general manager
of EIPR company Limited about selling of counterfeit products
in the brand name of M/s Louis Vuitton Malletier and
Burberry companies in Hum India Fab Limited shop at
commercial street. The complainant also accompanied them
along with panchas. On verification, they found one person by
name Lokesh Wathwani the cashier the accused No.2 herein.
C.W.8 has introduced himself to the said Lokesh Wathwani
and informed about the purpose of his visit. C.W.1 the
complainant has identified three pairs of chappals, bags, sox,
underwear, pant, ties, shirt and blankets in the brand name of
LV and Burberry. C.W.8 enquired the said persons regarding
any bill for having purchased the same from the copyright
Holder Company. Since the said Lokesh Wathwani has not
produced any documents and stated that as per the
instruction of his owner, the accused No.1 herein, he is selling
the same. Accordingly, C.W.8 by preparing the seizure
mahazar has seized the same. PW1 has identified the mahazar
and it is marked as Ex.P.1, his signature is marked as
Ex.P.1(a). P.W.1 though subjected to cross examination, but
except eliciting some minor discrepancies pertaining to seal,
obtaining of signatures of panchas on the seized products,
absolutely, nothing worth elicited from him to say that he has
deposed falsely before the court. From the evidence of P.W.1
no doubt it is true that on 29-1-2011 C.W.8 the PSI who is the
6 C.C.No.10873/2011.
investigation officer has conducted the raid in Hum India Fab
Limited shop at Commercial street and seized M.Os.1 and 2 by
preparing seizure mahazar.
10. As stated above, in spite of giving sufficient
opportunities, the prosecution has not examined the
independent seizure mahazar witnesses and the investigating
officer who conducted the seizer and not examined the other
police staff who assisted in conducting the raid. In my opinion,
even though the prosecution not examined independent
seizure mahazar witnesses and Investigating Officer who
conducted the raid, I have no reason to disbelieve the
testimony of P.W.1 in the matter of conducting of raid, seizer
of M.Os.1 and 2 by preparing the seizure mahazar at Ex.P.1.
Accordingly, I am of the considered opinion that the
prosecution has successfully proved the seizure mahazar
beyond all reasonable doubt.
11. Even though the prosecution has proved the seizure
mahazar, in order to bring home the guilt of accused for the
offences alleged, the prosecution has to prove that the seized
products are counterfeit in the brand name of LV and
Burberry over which M/s Louis Vuitton Malletier Company
and Burberry Company had copyright. It appears, during the
course of investigation the investigating officer has obtained
certificate from the complainant indicating differences between
7 C.C.No.10873/2011.
genuine and counterfeit products but the said documents are
not marked in evidence. In the said documents, the
complainant has narrated about seized items as duplicate but
he has not explained clearly how the seized products are
counterfeit. Probably basing upon the differences between
genuine and counterfeit products, he has given such opinion.
In my opinion, the certificate issued by complainant prima
facie cannot be, relied upon for the reason that complainant is
the interested witness who is always interest in favour of his
company and as such, no genuine opinion could be expect
from him. May be complainant is having some knowledge tp
identify about genuine and counterfeit products but in order
to believe that the seized products are the counterfeit it is
necessary on the part of the Investigating Officer to obtain
opinion from independent expert but no such independent
opinion is obtained. Therefore, the opinion given by the
complainant, not marked in evidence cannot be, relied upon to
hold that the prosecution has proved that the seized products
are counterfeit. Accordingly, this court is of the opinion that
the prosecution has failed to prove that the seized products
are counterfeit in the brand names of LV and Burberry over
which M/s Louis Vuitton Malletier Company and Burberry
India Limited had copyright.
12. It appears, the Investigating Officer during the course
of investigation has collected trademark registry certificate of
8 C.C.No.10873/2011.
M/s Louis Vuitton Malletier Company and Burberry Company
but he has not collected the copyright certificate of Louis
Vuitton Malletier and Burberry Companies. No doubt, as per
Exs.P.5 to 10 Louis Vuitton Malletier and Burberry Companies
had obtained trademark certificate, admittedly the
investigation not related to offences under Trademark Act.
When the investigation is in respect of infringement of
copyright, the investigating officer ought to have collected the
copyright certificate. Unfortunately, in spite of giving sufficient
opportunities the prosecution has not examined the
Investigating Officer who conducted the investigation in order
to seek clarification for what reason he has not collected
copyright certificate. Absolutely, no material placed before the
court to show that Louis vuittion Malletier Company and
Burberry Asia Limited Company had copyright over the brand
name LV and Burberry products. It appears the prosecution
has examined the complainant as P.W.2. The said P.W.2 has
not whispered anything regarding copyright certificate. It is to
be, noted here that though the prosecution has examined the
complainant who gave opinion regarding seized produced, his
evidence is not completed and for want of production of some
documents, his further examination deferred. Subsequently,
P.W.1 has not tendered for further examination. As per well-
settled law if the evidence of any witness records in part, for
some reason the evidence of said witness defers, subsequently
the said witness did not turn up before this court, in such
9 C.C.No.10873/2011.
circumstances whatever the part of evidence of said witness
cannot be looked into. In the instant case though prosecution
has examined the complainant in part, he has not tendered for
further examination. Therefore, the testimony of P.W.1 cannot
be, relied upon for any purpose. Accordingly, I am of the
considered opinion that the prosecution has failed to prove
that Louis vuittion Malletier Company and Burberry Asia
Limited Company had copyright over in the brand names of
Louis vuittion and Burberry.
13. It appears the prosecution has not examined any
witnesses and has not been marked any acceptable
documents to prove that accused No.1 is the owner and
accused No.2 is the cashier of Hum India Fab Limited shop
where the raid conducted. Therefore, looking from any angle, I
am of the considered opinion that the evidence on record is in
sufficient to conclude that the prosecution has proved its case
beyond all reasonable doubt. Accordingly, the accused No.1
and 2 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 and 2 for the offences punishable U/s. 63 of Copyright Act 1957 and section 420 of IPC.
10 C.C.No.10873/2011.Consequently, acting under section 248(1) of Cr.P.C., accused persons have been acquitted for the above-referred offences.
Their bail bonds and surety bonds stand cancelled.
The property M.Os.1 and 2 are confiscated to government after appeal period is over. Office to put the auction of M.Os.1 and 2 after removing the labels.
(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 8th day of January 2016) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1 Ashwathaiah P.W.2 R.Sathish Kumar
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION: NIL Ex.P.1 Mahazar Ex.P.1(a) Signature Ex.P.1(b) Signature Ex.P.2 complaint Ex.P.2(a) Signature Exs.P.3 Authority Letter Exs.P.4 Power of attorney letter 11 C.C.No.10873/2011. Ex.P.5 to 8 Trademark certificate Ex.P.9 Training letter Ex.P.10 Authorised letter Ex.P.11 Power of attorney letter LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION:
M.Os.1 and 2 seized articles LIST OF WITNESSES EXAMINED, DOCUMENTS AND MATERIALS MARKED ON BEHALF OF THE DEFENCE: NIL IX ADDL.C.M.M. Bangalore.