Delhi District Court
State vs . Shyam Lal Etc. on 25 November, 2016
IN THE COURT OF MS. VANDANA JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-02
( CENTRAL ) : DELHI
State Vs. Shyam Lal etc.
FIR No. 89/04
PS: Lahori Gate
U/s. 103/104 Trademark Act
Date of institution: 01.11.2004
Judgment Reserved on: 25.11.2016
Date of Judgment: 25.11.2016
New Case No. 289289/2016
JUDGMENT
a) Serial No. of the case 485/CB/04
b) Date of commission 22.03.2004
of the offence
c) Name of the complainant Sh. Manjeet Singh
d) Name of the accused person, 1. Shyam Lal S/o Hans Raj, and his parentage and R/o BT-33, Shal;imar Bagh, address. Delhi.
2. Virender Kumar Arora S/o Asa Nand, R/o 317, Jain Apptt., Sec.9, Rohini, Delhi.
3. Tejpal Gandhi S/o Sh.
Kishan Chand, R/o H.No. 154, Shakti Vihar, Pitam Pura, Delhi.
e) Offence complained or U/s 103/104 Trademark Act
proved
f) Plea of the accused Pleaded not guilty
g) The final order Acquitted
h) Date of such order 25.11.2016
FIR No. 89/04 PS Roop Nagar Page No. 1 of 9
1. The brief facts as stated in brief are that the complainant company M/s. Century Textile and Industries Ltd. had filed a complaint with respect to the selling of the counterfeit clothes of the complainant company in the market. On conducting raiding on 22.03.2004, accused persons namely Shyam Lal, Tejpal Gandhi and Virender Kumar Arora were found in possession of counterfeit clothes under the trademark "Century" of the complainant company and the same were recovered from their shops.
2. The investigation was carried and the chargesheet was filed against all the three accused persons. They were summoned.
3. After compliance of section 207 Cr.P.C, charge was framed against them u/s 103/104 Trademarks Act on 16.05.2006. Thereafter, matter was listed for prosecution evidence.
4. Prosecution cited 6 witnesses.
5. PW1 ASI Kishan Singh, Duty Officer, registered the FIR.
6. PW2 is Manjeet Singh, AR of the EIPR (India Ltd.) who was authorized by the complainant company i.e. M/s. Century Textile to take action against the infringers. He was a witness to the raid.
7. PW3 HC Arun Kumar is the MHC(M) of PS Lahori Gate and proved the entry in register no.19 with respect to deposit of case property in Malkhana of PS Lahori Gate.
FIR No. 89/04 PS Roop Nagar Page No. 2 of 98. PW4 is Rajesh Oberoi who appeared on behalf of trademark registry alongwith the original registration of the complainant company.
9. PW5 is HC Sanjay Kumar, who accompanied the IO during the raid and had participated in the entire investigation.
10. It is pertinent to mention here that IO/SI Suraj Prasad has expired during the trial and he could not be examined. Thereafter, prosecution evidence was closed.
11. Statement of accused persons was recorded under section 313 Cr.P.C wherein accused persons denied all the allegations levelled against them and stated that they do not wish to lead defence evidence. Thereafter final arguments were heard. I have perused the record carefully.
12. Ld. Counsel for the accused persons has argued that the accused persons have been implicated in false case by the IO in connivance with the AR of the complainant company. He has further pointed out that the alleged recovered clothes were not verified to be counterfeit after their recovery either from any laboratory or from the complainant company.
13. He has further contended that the chargesheet gives a different version of raid conducted by the police officials and the FIR No. 89/04 PS Roop Nagar Page No. 3 of 9 witnesses have given entirely different version and therefore no case is made out against accused persons and they be acquitted.
14. Ld. APP for the State, on the other, had opposed the submissions made by the counsel for the accused persons and has argued that the testimony of AR of the complainant company i.e. Manjeet Singh and that of HC Sanjay Kumar proves the guilt of the accused persons beyond reasonable doubt as the manner in which the raid was conducted has been described in detail in their deposition and therefore accused persons be held guilty and punished as per law.
15. Perusal of the chargesheet filed in this case shows that on 22.03.2004, in pursuance of the order u/s 156(3) Cr.P.C received from the court of the then ACMM, Patiala House in the matter of "Century Textile and Industry Ltd. Vs. Unknown persons", complainant Manjeet Singh, AR of the complainant company came to the trademark section Crime Branch (PHQ) and stated that one Shyam Lal at shop no. 4750, Laxmi Bazar Cloth Market and Tejpal at shop No. 4721, Laxmi Bazar Cloth Market are stocking/selling duplicate clothes bearing the falsified trademark of Century of complainant company.
16. The information was got verified from secret source and was found to be correct. Hence, FIR was registered and a raiding party FIR No. 89/04 PS Roop Nagar Page No. 4 of 9 consisting of SI Suraj Prasad, SI Rajeev Bhardwaj, SI Amit Issar and Ct. Sanjay alongwith complainant proceeded to the spot and in the presence of aforesaid witnesses and at the pointing out of accused Tejpal Gandhi and Shyam was found sitting at shop no. 4750, Laxmi Bazar Market and during the search of the shop, 71 cloth bundles bearing the falsified trademark of Century were found and seized. Accused Shyam Lal could not produce any document, authority or license to use the falsified trademark.
17. It is thereafter mentioned that the police party left the office at about 3.40 PM and reached the national club at about 4.15 PM and thereafter at about 4.25 PM reached at shop no. 4721, Laxmi Bazar Market Cloth where accused Tejpal Gandhi was found sitting and he stated himself to be the owner of the shop and during the search of his shop, 39 cloth bundles bearing the falsified trademark of Century were found and seized. Accused Tejpal Gandhi could not produce any document, authority or license to use the falsified trademark.
18. Thereafter, it is stated that on the pointing out of accused Shyam Lal, the police party reached at shop no.4706, Laxmi Bazar Cloth Market where accused Virender Kumar Arora was found and 6 cotton cloth bundles bearing the falsified trademark of Century were found and seized. Accused Virender Kumar Arora could not produce any document, authority or license to use the falsified trademark.
FIR No. 89/04 PS Roop Nagar Page No. 5 of 919. However, perusal of the testimony of HC Sanjay Kumar reveals that the recovery has been effected first from the accused Tejpal Gandhi, thereafter, from accused Shyam Lal and lastly from accused Virender Kumar Arora. It so appears that the paragraphs in the chargesheet have been wrongly placed which is clear from the reading of the chargesheet which has already been discussed above. Therefore, as far as the discrepancy between the testimony and the chargesheet is concerned, same appears to be an unintentional mistake on the part of the IO while preparing the chargesheet which cannot be of any help to the accused persons as it is not prejudicing their case materially. Hence, this contention of the Ld. counsel for the accused is turned town.
20. Now, coming to the testimony of PW2 Manjeet Singh, in his examination in chief, he has given the verbatim version of his complaint and thereafter stated the facts of raid chronologically in his examination in chief recorded on next date. He also identified the case property and therefore he was cross-examined by the defence counsel. During his examination in chief, he has not proved any authority letter to show that he was authorized by EIPR to file this case.
21. He has further not produced any Board Resolution of the "Century Textile" which authorized EIPR to file this case through its representative. No such authority letter has been proved on record.
FIR No. 89/04 PS Roop Nagar Page No. 6 of 922. It is pertinent to note here that during the examination in chief, complainant has stated the points of distinction between the original products and the infringed products in general, however, he did not make any distinction of the products/clothes which were recovered from the accused persons. He failed to point out any particular material distinction which could distinguish the recovered cloth bundles from the original clothes of "Century". In his cross- examination, he stated that he does not have any professional or technical qualification to judge the logo of that company. He admitted that "Century" company had not given any technical know-how to conclude the logo of its marketing. He also stated that at the time of raid, no person from Century company was in raiding team. Contrary to that in the cross-examination recorded on another date, he stated that he alongwith one person namely Santosh Divedi from the company was a member of raiding party. This fact of /Santosh Divedi being present at the time of raid has been stated for the first time in his cross-examination.
23. Neither the chargesheet nor the testimony of PW5 HC Sanjay Kumar finds mention of the persons of person or that of Santosh Divedi from the Century Textile being present at the time of raid. It creates a doubt as to whether the statement of complainant is reliable or not.
24. PW2 Manjeet Singh has also stated that he was not sure whether any sample was taken out from the seized clothes by the IO.
FIR No. 89/04 PS Roop Nagar Page No. 7 of 9In the cross-examination of PW5 HC Sanjay Kumar, who is a material witness as the IO had expired, he has stated that he was present throughout during the raid but he denied having remembered very minute facts. He stated that they took entire case property to the PS and the charges to be paid to the labourers was settled by the IO but he cannot tell who called the labourers as he did not call them. In his cross-examination, he also stated that the supplementary disclosure statement of the accused Shyam Lal was recorded in his presence on the next date i.e. 23.03.2004 and accused Shyam Lal came to PS from his house on 23.03.2004 as he was enlarged on bail.
25. Perusal of the chargesheet and the documents annexed shows that the accused Shyam Lal alongwith the other accused persons were remanded to JC for 14 days on 23.03.2004.
26. Further perusal of the record reveals that the bail bond of accused Shyam Lal was accepted on 26.03.2004 meaning thereby that on 23.03.2004, the accused was in police custody and was produced thereafter before the court on the same date. Therefore, he could not have come to the court from his house before his supplementary statement was recorded. Moreover, his disclosure statement was recorded on 23.03.2004 which is Ex.PW5/H shows that the accused Shyam Lal has allegedly signed and the date of the same is 23.03.2004 whereas HC Sanjay Kumar had signed it on 22.03.2004. This shows that HC Sanjay had also signed on blank FIR No. 89/04 PS Roop Nagar Page No. 8 of 9 paper before the statement was recorded on it. Though, he submits that the entire proceedings were conducted in his presence by the IO but his presence is doubtful in view of the false statement made by him with respect to recording of supplementary statement of accused Shyam Lal. IO has expired, who could give explanation in this regard. The testimony of the witness i.e. Manjeet and HC Sanjay Kumar are not found to be reliable due to discussions made above. Prosecution has failed to establish that counterfeit cloth bundles of complainant company were recovered from the shop of accused persons beyond reasonable doubt. Therefore, all the accused persons are acquitted from the charge framed for the offence u/s 103/104 Trademark Act.
27. Put up for furnishing of bail bond u/s 437-A Cr.P.C.
Announced in Open Court (Vandana Jain)
today on 25.11 .2016 Additional Chief Metropolitan
Magistrate-02/Central/Delhi
FIR No. 89/04 PS Roop Nagar Page No. 9 of 9