Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment -1- C.C. No.110/PS/2019
MHMM180046252019 Received on 10/01/2019
Registered on 10/01/2019
Decided on 02/01/2023
Duration 03 Y. 11 M. 22 D.
IN THE COURT OF ADDL CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI.
(Presided over by K.H. Thombre)
JUDGMENT
(As per Section 355 of Code of Criminal Procedure)
Exh.No.08
A. The serial number of the
case
: C.C. No.110/PS/2019
B. The date of commission of
the offence
: 25.05.2018
C. The name of the
complainant (if any)
: State of Maharashtra through Khar
Police Station.( C.R.No.102/2018)
D. The name of the accused
person, and his parentage
and residence
: 1. Sunil Poonamchand Jain
Age : 35 years,
Occupation: Service.
R/o.155/8, Road No.2 Jawahar
Nagar, Near Crossing Lane,
Goregaon(W), Mumbai
2. Gopalsingh Nirajsingh Thakur
Age- 29 years
Occupation- Service
R/o.Green Field, Near Majas Depot,
JVLR, Andheri East, Mumbai
E. The offences complained of
or proved
: Under Section 63 of the Copy Right
Act,1957
F. The plea of the accused and
his examination (if any)
: The accused pleaded not guilty.
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Judgment -2- C.C. No.110/PS/2019
G. The final order : The accused are acquitted.
H. The date of such order : 02/01/2023
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Learned counsel for Prosecution : APP Smt.M.F.Pakajade
Ld. Counsel for Accused : Adv. Mr. Ankit Mota
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J U D G M E N T
( Delivered on 02/01/2023 )
The accused is charged for the offence punishable u/sec. 63 of the
Copy Right Act,1957 (for short 'Act').
2. The case of prosecution in brief is as under---
The informant is a Senior Executive in M/s. Netrika Consulting and
Investigation Pvt. Ltd.. The company of the informant is having Copy Rights
and Protection Rights from Levi's Company. The informant is trained in
identifying original and duplicate products. On confirmation of secrete
information, the informant verified that at “Well Worth Casuals”, Shop No.5 at
Old Khar duplicate products of Levi's Company are sold. The informant
approached to Deputy Superintendent of Police, Zone-9 with a complaint. The
complaint was forwarded to concern Police Station. On 25/05/2018 the
informant, police squad and pancha witnesses reached at M/s.Well Worth Shop.
One person present disclosed his name as Sunil Poonamchand Jain. On taking
search in the shop 72 Jean Pants having label of Levi's Company were found.
Then the informant and Squad approached to M/s.Simna Garments. One person
by name Gopalsingh Nirajsingh Thakur was present in the shop. The informant
took search in the shop. In the shop total 53 Jeans Pants and 43 Shirts, all
duplicate having label of Levi's Company were found. All the cloths found in the
shops were duplicate. The informant and the police seized all these clothes. The
informant lodged the report at Police Station, Khar.
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Judgment -3- C.C. No.110/PS/2019
3. On the report of the informant offence was registered vide crime
No.102/2018 punishable under sections 63 of the Act against accused. After
completion of the investigation charge-sheet is filed against the accused.
4. My Ld. Predecessor explained and read over the particulars of the
offence to the accused in vernacular. Accused pleaded not guilty and claimed
to be tried. Plea of the accused was recorded below Exh.03.
5. The prosecution has examined in all two witnesses P.W.No.1
Sanjay Arvind Babaj, informant ( Exh.03) and P.W.No.2 Vikas Hariba Mali,
Investigation Officer (Exh.04). Statement of accused under Section 313(1)(b) of
Code of Criminal Procedure is recorded (Exh.07). The defence of accused is of
false implication in this case.
6. Considering the evidence and arguments of the parties, following
points arose for determination. Findings are recorded for reasons to follow.
Sr.No POINTS FINDINGS
1] Whether the prosecution proved that on
25.05.2018 at about 12.15 to 14.30 hrs. in a
shop “Well Worth Casuals, Shop No.5, New
Fancy Market, Road No.1, Old Khar,
Khar(W), Mumbai the accused Sunil
Poonamchand Jain and in Shop Simna
Garments, Mansoori Mansion, 35th Road,
Khar(W), Mumbai-52 the accused
Gopalsingh Nirajsingh Thakur found in
possession of duplicate Shirts and Pants of
Levi's Strauss & Co. in contravention of
Section 51 of the Act and thereby committed
an offence punishable under Section 63 of
Copy Right Act, 1957?
In the negative
2] What order? Accused are acquitted
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Judgment -4- C.C. No.110/PS/2019
R E A S O N S
AS TO POINT NO.1 :
7. According to (P.W.1) Sanjay Bajaj, he was working with Netrika
Consulting and Investigation Pvt. Ltd. as Executive Officer. He was assigned
the work of taking action in respect of duplicate products of the Company. It is
seen from his evidence that at two shops adjacent to each other at Khar area he
found duplicate Pants and Shirts of Levi's Company. The names of the shop and
name of the persons though mentioned in the FIR(Exh.05), the informant failed
to depose the names of the shops and persons who allegedly found at the shop.
The informant failed to identify the accused as the same persons who were
present at the shop when he conducted search. In cross-examination (P.W.1)
Sanjay Bajaj admitted that he failed to verify who is the owner of the shops and
he is not expert in copy rights products.
8. Another witness Vikas Hariba Mali (P.W.2) deposed that he
accompanied the informant at Shops M/s. Well Worthy Casuals Garments and
Simna Garments in respect of duplicate garments of Levi's Company. At both
these shops they found duplicate 102 Pants and 43 Shirts having labels of
Levi's Company. All these clothes were seized in presence of panchas under
panchanama (Exh.06). In cross-examination (P.W.2) Vikas Mali deposed that he
do not remember whether he collected any documentary proof about ownership
of the shop and the clothes were not forwarded for opinion of any expert.
9. It is submitted by Ld. A.P.P. that the Investigation Officer has
identified the accused as the persons who were present when the clothes were
seized. It is proved from the evidence of (P.W.1) Sanjay Bajaj that the clothes
found in possession of the accused were duplicate and kept in shop by in
infringement of Copy Rights of the informant's Company. On the other hand
Ld. Advocate for the accused submitted that no documentary proof is filed on
record to establish that the accused were owners of the shop. There is no
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Judgment -5- C.C. No.110/PS/2019
evidence of expert to show that the clothes seized were duplicate.
10. To appreciate the above arguments it is settled position of law that
the burden is on the prosecution to establish that the clothes which were
allegedly seized were duplicate and in infringement of the copy rights of Levi's
Company. Mr. Sanjay Bajaj (P.W.1) deposed that he has authority to conduct
such type of investigation, failed to file on record any document by which it can
be established that Mr. Sanjay Bajaj was authorized to take action in respect of
infringement of copy right of Levi's Company.
11. Under Section 14 of the Act the meaning of Copyright is provided
under Section 51, when copyright shall be deemed to be infringed is explained
and under Section 63 of the Act punishment is provided for infringement of the
copyright. To establish to have a copyright in respect of any particular work or
product, proof of existence of Copy Right should be produced. This can be done
when certificate or authorization of registration of copyright issued by competent
authority is produced. In the present case prosecution failed to establish that the
informant is having copyrights in respect of Levi's brand of the garments.
12. If any article, work or any physical thing is produced to attribute its
originality, there must be certain unique features for which copyrights are given.
In the present case (P.W.1) Sanjay Bajaj deposed that the shirts and Pants seized
were duplicate or counterfeit. The evidence must be given as to how the seized
clothes are counterfeit to the original. The evidence that the label of Levi's
Company is attached to the clothes is not sufficient to establish that the clothes
which are seized are counterfeit or in infringement of copyrights.
13. The prosecution failed to establish that the informant is having
authority or ownership in respect of the copyright of the Levi's Company in
respect of its garments. The evidence is absent on record as to how the seized
shirts and pants are in infringement of copyrights of the Levi's Company. In
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Judgment -6- C.C. No.110/PS/2019
absence of this material evidence on record accused cannot be held guilty for the
offence punishable under Section 63 of the Act. For these reasons findings to
Point No.1 is recorded in the negative with the following order.
O R D E R
1. Accused No.1) Sunil Poonamchand Jain and 2) Gopalsingh
Nirajsingh Thakur are acquitted of the offence punishable under Section 63 of
the Copy Right Act,1957 vide section 255(1) of the Code of Criminal Procedure.
2. Their bail bonds stands cancelled and cash sureties if any, be
refunded to the accused.
3. The accused to furnish bail bonds in compliance of Section 437(A)
of the Code of Criminal Procedure.
4. Seized property i.e. clothes be destroyed after the appeal period.
5. The copy of the Judgment be forwarded to District Magistrate vide
Sec.365 of the Code of Criminal Procedure for further compliance.
(Dictated and Pronounced in open court)
Date:02/01/2023. (K.H.Thombre)
Addl.Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai.
Delivered on: 02/01/2023
Dictated on : 02/01/2023
Typed on : 02/01/2023
Signed on : 02/01/2023
vnh
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