Delhi District Court
State (Govt. Nct Of Delhi) vs Vinod Kumar Sharma on 2 January, 2016
Unique ID Nos. 02401R0643892015
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
Criminal Revision No. 58/2015
Unique ID No. 02401R0643892015
State (Govt. NCT of Delhi)
Through Public Prosecutor (Central) Delhi .....Petitioner
Versus
1. Vinod Kumar Sharma,
S/o Sh. Sampat Ram Sharma,
R/o House No.92, Ghondi Krishna Nagar,
Delhi.
2. Rahul Agarwal,
S/o Sh. Rakesh Agarwal,
R/o 12/13, Iind Floor, Shakthi Nagar, Delhi. ..... Respondents
Instituted on : 28th November 2015
Argued on : 2nd January 2016
Decided on : 2nd January 2016
ORDER
1. This Revision petition u/s 397 of the Code of Criminal Procedure (Cr.P.C), is preferred by the State against order dated 26 th September 2015, passed by the Court of Sh.V.K. Gautam, Additional Chief Metropolitan Magistrate, Central, Delhi, whereby Accused persons (respondents herein) have been discharged in a proceeding arising out of filing of charge sheet in FIR No. 51/10, Police Station Kotwali.
2. Criminal law was set into motion in this case by Krishan Kumar, Operation Manager, TACT India, Authorized by M/s Crompton Greves India Limited who filed a complaint on 03.02.2015 to DCP (North District), Delhi, whereupon FIR No. 51/10 at P.S. Kotwali was registered u/s 63 of the Copyrights Act 1957 & u/s 420 IPC. Case was investigated by S.I. Janak Singh of DIU Cell of Delhi Police and on 23rd February, 2010 at the instance of complainant Krishan Kumar, raid was conducted by police at the godown of accused Vinod Sharma at Chah Indira Building, Bhagirath Palace, Delhi shop no. 1826/2/6 G. Floor Amarnath Building of Rahul Aggarwal and shop situated at 1957, Katra Lachu Singh, Bhagirath Palace, Delhi of Raj Kumar wherein C.R. No. 58/2015 Page 1 out of 10 Unique ID Nos. 02401R0643892015 spurious goods i.e. HPSP Lamps belonging to M/s Crompton Greves were seized and at the instance of K.L. Pilkhwal, spurious goods i.e. chowks belonging to M/s Philips were seized. Respondents Vinod Sharma, Rahul Aggarwal and Raj Kumar were arrested and on conclusion of investigation, charge sheet was filed in the court on 19 th October, 2010. Accused Raj Kumar had expired during the pendency of trial.
3. Perusal of charge sheet reveals that during investigation, IO wrote a letter to the Registrar Trade Mark for seeking his opinion and vide his reply dated 15th April, 2010, Assistant Registrar of Trade Marks, informed IO SI Janak Singh that raid had already been conducted and items had been seized, and as per Section 115 (4) of the Trade Marks Act, opinion for taking cognizance of offence under Trade Marks Act u/s 107,108 and 109 was required to be obtained 'before any search or seizure' by a police officer not below the rank of Deputy Superintendent, therefore, no opinion could be given. Vide authority letter dated 23 rd May, 2005, M/s Crompton Greves authorized one Sushant Arora attorney of the company to file complaints and to appear in courts etc. and vide another authority letter dated 16.02.2010 Sh.Sushant Arora further authorized Sh.Akhilesh Kapoor, Director of M/s TACT India Private Ltd. to conduct surveys and gather information regarding activities of the spurious manufacturers & sellers and to liaise with police for a period of one year. Certificate of Registrar of Copy Right is placed on record to show that M/s Crompton Greves Ltd's Logo "CG" was registered with the Registrar of Copyrights and copy of copy right certificate of trademarks "Philips" with the registrar of Trade Mark was placed on record.
4. Sh. G.S.Guraya Learned Additional PP for State submitted that spurious goods belonging to the complainant company were seized by the police on 23 rd February, 2010 and accused persons were not having any authorization to possess and to sell or purchase the goods regarding which the complainant company was having Copy C.R. No. 58/2015 Page 2 out of 10 Unique ID Nos. 02401R0643892015 Right and trade mark. It is submitted that possession of huge quantity of spurious goods indicates that it was for sale and thus, accused caused huge loss to the complainant company and committed violation of copyright act and committed cheating. Learned APP submits that accused was found in possession of the goods having label and logo of the complainant companies Philips and CG and since goods recovered were in huge quantity therefore presumption would be that accused had stored them for selling without any authority, permission or invoices from M/s Crompton Greves and M/s Philips and thus, Section 420 IPC is attracted in the case.
5. Per contra, Sh.Neeraj Grover, Ld counsel appearing for the respondent argued that entire charge sheet even if taken as a gospel truth, does not disclose commission of any offence under Section 63 of Copyright Act, 1963 and/or Section 420 IPC by the respondent/accused. Neither the accused has been connected in any manner with the alleged recovery nor the goods have been conclusively found to be counterfeit/duplicate. It is submitted that FIR was not registered under the provisions of Trade Marks Act, 1999 as mandatory compliance of proviso to Section 115 was not done. It is submitted that there is no allegation of any inducement or delivery of any property and as such, essential ingredients of cheating punishable under Section 420 IPC are not made out and no case for charge is made out and the accused are liable to be discharged and there is no infirmity in the discharge order passed by the Ld. ACMM. Without prejudice to the factual submissions, it is argued that no case was made against the respondents even on legal grounds as the respondents could not be convicted of the offences alleged to have been committed by him due to legal bar of prosecution under the provisions for which the respondents were charge-sheeted. It is submitted that investigative agency has not seized any document and there is no investigation to show Vinod Sharma and Rahul Aggarwal were the occupant, tenants C.R. No. 58/2015 Page 3 out of 10 Unique ID Nos. 02401R0643892015 or owners of the premises from where goods were allegedly seized.
6. It is further argued that no offence under the provisions of Copyright Act, 1957 was made out against the respondents as no copyright can subsist in respect of the subject matter of case in view of the legal bar and admittedly, packaging(s) of the goods alleged to be recovered from the respondent/accused, the alleged artwork is mechanically/industrially reproduced and such packaging(s) used to sell goods are obviously commercial arte-facts. Background, the bar contained in Section 15(2) comes into play as such art work is capable of being registered under the Designs Act, 2000 and no registration was claimed.
7. Reliance is placed by ld. counsel on a case reported as Anil Kumar v/s State of Punjab1 wherein it was held that as the labels on the goods ceased were mechanically reproduced no offence under the Copyright Act, 1963 was made out and the criminal proceedings were quashed. Ld. Counsel also placed reliance on the law laid down by the Hon'ble High Court of Delhi in a matter titled Microfibres Inc. Vs. Girdhar & Co. & Anr2, wherein it has been held that by virtue of operation of the provision of sec. 15(2) of the Copyright Act, no copyright shall be available in respect of any work mechanically reproduced more than 50 times. It has further been held that in terms of the legislative intent, no protection under the provision of copyright act is available to the works which are commercial in nature.
8. Ld. counsel has relied upon Syed Kaleem v/s Mysore Lakshmi Beedi 3, referred in the impugned order wherein it is held that where the offences alleged were primarily under the Trade & Merchandise Marks Act, 1958, the charge under Section 420 was wholly inapt. Reliance has also been placed on Mustan patel v/s State of West 1 2012(51)PTC159 2 2009 (4) PTC 519 3 1993 Cr.L.J 232 C.R. No. 58/2015 Page 4 out of 10 Unique ID Nos. 02401R0643892015 Bengal4, Zahir Ahmed v/s Azam Khan 5, Piyara Singh V/s State of Punjab 6. In Zahir Ahmed vs Azam Khan, it was observed that:
"Sadly for the opposite parties, there is not the merest and faintest whisper about any of the aforesaid. ingredients within the four corners of the F.I.R. The F.I.R. being, what it is, no case for an offence punishable under Section 420, I.P.C. could be said to have been made out as such. And, as held by a learned single Judge of Karnataka High Court in Syed Kaleem v. Mysore Lakshmi Beedi Works, 1993 Cri LJ 232, In view of Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 providing penalty for applying false trade descriptions etc. and selling goods to which a false trade mark or false trade description is applied, as alleged in the relevant case before us, a charge under Section 420, I.P.C. becomes wholly inapt, I fully concur with the said view...."
9. In "State of Bihar Vs. Ramesh Singh 7", it was observed that if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In exercising jurisdiction under Section 227 of the Code, court cannot act merely as a post office or a mouth piece of the prosecution, but has to consider broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on.
10. After hearing submissions of counsels and perusal of record, this court finds merits in the arguments advanced by Ld counsel for the respondents. Indisputably, there is nothing on record to show that Investigative Agency had sent any samples of the original goods or the alleged spurious seized goods to any expert FSL to prima facie show that alleged seized goods were duplicate or spurious. It has not been shown by prosecution as to how accused person violated any trademark or copy right 4 2002 (25) PTC 451 5 1996 Cri.L.J 290 6 2002 (3) RCR (Cri) 290
7. AIR 1977 Supreme Court 2013 C.R. No. 58/2015 Page 5 out of 10 Unique ID Nos. 02401R0643892015 of complainant. As per Section 115(4) of the TM Act a police officer not below the rank of Deputy Superintendent or equivalent can conduct search and seizure operations without warrant in respect of offences under the TM Act. To protect the right to privacy and to ensure that the power of search and seizure is not misused and abused, proviso to Section 115(4) of the TM Act stipulates that the police officer should take opinion of the Registrar of the Trade Marks on facts involved in the offence of trade mark and the police officer shall abide by that opinion. Opinion of the Registrar is binding on the police officer and right to privacy being a constitutional right, cannot be infringed except for valid, good and justified reasons. Provisions of Section 115(4) of the TM Act including the proviso override the general provisions which relate to search and seizure by the police.
11. For prosecution of the accused persons u/s 103 & 104 of Trade Mark Act, it was required to be shown that accused person falsified trademarks of the complaint and Section 115(4) Trade Mark Act was to be complied with, which required conducting search or seizure by the officer not below the rank of DSP and obtaining opinion of registrar of trademark before making any search and seizure was necessary. Admittedly, in this case, neither any warrants from Magistrate were obtained by the IO or by the complainant u/s 93 Cr.P.C. nor search on 23 rd February, 2010 was conducted by DSP and prior opinion of registrar of trademark was not obtained. Thus, mandatory provisions u/s 115 (4) has not been complied with and therefore, accused persons could not be charged under the Trade Mark Act.
12. Adverting to copyright act violation, Section 14 of Copyright Act explains meaning of copyright, i.e. exclusive right subject to the provisions of Act to do or authorize of doing of the acts mentioned therein in respect of work or any substantial part there of. Section 15 provides about copyright of designs registered or capable of being C.R. No. 58/2015 Page 6 out of 10 Unique ID Nos. 02401R0643892015 registered under the Design Act, 1911. Section 17 of the Act provides that author of the work shall be the owner of the copy right therein subject to the provisions of Act and Section 51 of the Act says when copy right is infringed. Copy right in a work shall be deemed to be infringed- "when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the condition of a licence so granted or of any condition imposed by a competent authority under this Act (I) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright or...." It specifies when copyright is infringed. As per Section 63 of Copyrights Act, any person who knowingly infringes or abets the infringement of copyright in a work or any other right conferred by the act is punishable.
13. As per Section 2 (d) of Design Act, "design" means only the features of shape, configuration, pattern, ornament or composition of lines of colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode of principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in Section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of Section 2 of the Copyright Act, 1957.
14. In Microfibres Inc. Vs. Girdhar & Co. & Anr 8, legal position was summarized as under:
"a. The definition of 'artistic work' has a very wide connotation as it is not circumscribed by any limitation of the work possessing any artistic quality.
8 2009 (4) PTC 519
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Unique ID Nos. 02401R0643892015
Even an abstract work, such as a few lines or curves arbitrarily drawn would qualify as an artistic work. It may be two dimensional or three dimensional. The artistic work may or may not have visual appeal. b. The rights to which a holder of an original artistic work is entitled are enumerated in Section 14(c) of the Copyright act.
c. It is the exclusive right of the holder of a Copyright in an original artistic work to reproduce the work in any material form. For example, a drawing of an imaginary futuristic automobile, which is an original artistic work, may be reproduced in the three-dimensional material form using an element, such as a metal sheet.
d. The design protection in case of registered works under the Designs Act cannot be extended to include the copyright protection to the works which were industrially produced.
e. A perusal of the Copyright Act and the Designs Act and indeed the Preamble and the Statement of Objects and Reasons of the Designs Act makes it clear that the legislative intent was to grant a higher protection to pure original artistic works such as paintings, sculptures etc and lesser protection to design activity which is commercial in nature. The legislative intent is, thus, clear that the protection accorded to a work which is commercial in nature is lesser than and not to be equated with the protection granted to a work of pure art.
f. The original paintings/artistic works which may be used to industrially produce the designed article would continue to fall within the meaning of the artistic work defined under Section 2(c) of the Copyright Act, 1957 and would be entitled to the full period of copyright protection as evident from the definition of the design under Section 2(d) of the Designs Act. However, the intention of producing the artistic work is not relevant. g. This is precisely why the legislature not only limited the protection by mandating that the copyright shall cease under the Copyright Act in a registered design but in addition, also deprived copyright protection to designs capable of being registered under the Designs Act, but not so registered, as soon as the concerned design had been applied more than 50 times by industrial process by the owner of the copyright or his licensee. h. In the original work of art, copyright would exist and the author/holder would continue enjoying the longer protection granted under the Copyright Act in respect of the original artistic work per se.
If the design is registered under the Designs Act, the Design would lose its copyright protection under the Copyright Act. If it is a design registrable under the Designs Act but has not so been registered, the Design would continue to enjoy copyright protection under the Act so long as the threshold limit of its application on an article by an industrial process for more than 50 times is reached. But once that limit is crossed, it would lose its copyright protection under the Copyright Act. This interpretation would harmonize the Copyright and the Designs Act in accordance with the legislative intent."
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15. Allegations in the present case are that Logo of M/s Crompton Greves i.e. 'CG' and Mark 'Philips' was embossed on product and printed on the label/packing of the product recovered from the premises of accused persons. It is found that logo on the product as well as Mark on label was registrable as design under the design and thus, it came within the purview of Section 15 (2) of the Copy Right Act 1957. Admittedly, goods alleged to be recovered from the premises of respondents (accused persons), alleged logo of the products was mechanically/industrially reproduced/printed/embossed and goods were commercial arte-facts, which were capable of being registered under the Designs Act, 2000 and no registration is claimed under the act. Thus, no offence under the provisions of Copyright Act, 1957 is made out against the respondents (accused persons) as no copyright can subsist in respect of the subject matter of case in view of the legal bar contained in Section 15(2) of the Copyright Act, 1957.
16. Now, ingredients required to constitute an offence of cheating are that these should be fraudulent or dishonest inducement of a person by deceiving him and the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property or the person so deceived should be intentionally induced to do or omit if he were not so deceived. There is no complaint from any person or consumer that they have been cheated for purchase of any article belonging to the complainant. In the present case, it is not the case of prosecution that any customer who had purchased or was found purchasing the goods belonging to M/s Crompton Greves and M/s Philips was misrepresented or cheated by the accused persons by selling the products as genuine one. Admittedly, it is not the case of prosecution that any decoy customer was sent or to whom the product to be sold.
There is nothing in the charge-sheet to show that any person who was cheated or dis-
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honestly induced by the accused persons to deliver spurious products belonging to M/s Crompton Greves or Philips. This court finds that in the present case, factual matrix does not make out the alleged offence punishable under Section 420, I.P.C., against the accused persons and furthermore, the allegations in the charge-sheet neither make out an offence punishable under Sections 420/511 I.P.C.
17. To conclude, this court finds no prima facie case for charging the accused for the alleged offences under T.M. Act, Copy Right Act or cheating under Indian Penal Code is made out. This court finds no illegality, procedural irregularity or impropriety in the impugned order passed by Learned Trial Court. No interference in the impugned order is therefore, called for. In the result, revision petition is dismissed. TCR be sent back along with a copy of this order. Revision file be consigned to Record Room. Dasti.
announced in the open court VINAY KUMAR KHANNA
on 2nd January, 2016 Special Judge-CBI (PC Act)-06
THC/Delhi
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