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(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 12.08.2009
(i) Brief statement of the reasons for the decision:
1. Sole accused, namely Rajiv Kumar Aggarwal, was sent up for trial in this case, with the case of prosecution, that on 12031992 a complaint was received by ACP, Crime Branch, Police Head Quarter, Delhi, given by Weston Components Ltd. Company. In the said complaint, it was alleged that complainant company came to know that its audio cassettes were being infringed at shop no. 550, Lajpat Rai Market, Delhi. On the said complaint, it is claimed by the prosecution, that Authorized Representative of not only the complainant company namely Weston Components Ltd., but also Authorized Representatives of Tips, HMV and Venus company, reached Lajpat Rai Market along with police staff at the said shop no. 550. The names of those representatives of companies are Sh. Pradeep Bahri from Weston Components Ltd; Sh. Padam Sen Jain from HMV; Sh. Vijay Kumar from Tips and Sh. Prem Kumar Gandhi from Venus Company. In the said shop no. 550, allegedly, the accused was present and from the said shop various audio cassettes of various movies, the copyright of which were with these four companies, were recovered. Those recovered cassettes were kept in six gunny bags which were given Sl. No. 1 to 6. In the gunny bag no. 1, infringed audio cassettes of Weston Components Ltd, in gunny bag no. 2 such cassettes of Tips Company and in gunny bag no. 3 such cassettes of Venus Company and in gunny bags no. 4 to 6 such cassettes of HMV Company were seized. To be precise, total 424 such cassettes of Weston Components Ltd, 394 of Tips Company, 366 of Venus Company and 1065 of HMV Companies were allegedly recovered. On completion of JUDGMENT/State Vs. Rajiv Kr Aggarwal/FIR NO. 238/92/US: 63 CR Act /Acquitted/12.08.09/Page 2 of 12/D investigation, accused was charge sheeted for the offence u/s 63 Copyright Act, 1957 and Section 78/79 of TMM Act, 1958.
7. It is argued by the counsel for accused that admittedly Ex. PW6/A to D were not executed in presence of PW6 therefore his testimony is to be brushed aside. Although the JUDGMENT/State Vs. Rajiv Kr Aggarwal/FIR NO. 238/92/US: 63 CR Act /Acquitted/12.08.09/Page 4 of 12/D offence of copyright is cognizable offence but in order to prove the copyright violation, it is necessary to show that copyright of the work exists with somebody else other than the accused. Perusal of document Ex. PW6/A, B and C reveal that these are assignment of copyright agreement vide which the producers of the three movies assigned the copyright in favour of M/s Weston Components Ltd. PW6 was not a witness to this document therefore in order to prove these documents, prosecution ought to have examined either the executor of the document or any witness in whose presence these documents were so executed. Merely by putting an exhibit mark on a document does not prove the document. It is well settled law that a document has to be proved in accordance with law and only then it can be treated as proved and not by merely marking a document as exhibit. In this case when documents Ex. PW6/A, B and C were being exhibited, an objection was raised by the accused against exhibiting of these documents, as regards the mode of proving these documents. Without examining the executor of the document or the witness of the documents, these documents are not proved in accordance with law and cannot be looked into.
14. Coming to the testimony of remaining three recovery witnesses PW1 Padam Sain Jain, PW5 SI Risal Singh and PW10 Inspector Makhan Singh, they supported the case of prosecution and deposed that on 120392 they along with three other representatives of companies namely Sh. Pradeep Bahri from Weston Components Ltd; Sh. Vijay Kumar from Tips and Sh. Prem Kumar Gandhi from Venus Company conducted raid at the shop no. 550 from where infringed audio cassettes of these four companies were recovered which were taken into police possession vide recovery memo Ex. PW1/A, after keeping the same in six gunny bags, and after sealing the same with the seal of RS. Thereafter, case was got registered and accused was arrested.
20. Let it be mentioned here that Section 63 of the Copyright Act, 1957 is a stringent provision which provides minimum sentence on conviction. It makes it a stringent provision and in my view the more stringent the provision are, the more responsibility is cast upon the prosecution to be careful in its case, in proving the case and keeping the case property in safe custody and also complying with mandatory provision of law.
21. Besides this, out of those 4 representatives of the company's two representatives Sh. Prem Kumar Gandhi from Venus Company and Sh. Pradeep Bahri from Weston Components Ltd, complainant were never examined in this case. The process on Pradeep Bahri was received in this Court with the report that he was not found at his address and could not be located. Similarly, Prem Kumar Gandhi also was not available at the address. In the absence of independent respectable local inhabitants, it was all more necessary for prosecution to have examined these witnesses but it was not done.