Bangalore District CourtState By Yeshwanthpura Police vs Was Found In Possession Of 160 Bundles Of ... on 18 March, 20211                   CC NO.7249/2016\n\n    IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN\n              MAGISTRATE, AT BANGALORE.\n\n              Dated this the 18th    day of March 2021\n\n               Present : Sri.Arun Sadashiv Gudigenavar,\n                               B.A., LL.B., (Hon's) L.L.M.,\n                              IX Addl.C.M.M., Bengaluru.\n\n                       CC NO.7249/2016\n\n            JUDGMENT UNDER SEC.355 OF CR.P.C.\n\n1.C.C.No.                      7249/2016\n\n2.Date of offence              01/08/2013\n\n3.Complainant                  State by Yeshwanthpura Police\n                               Station.\n4.Accused                      1. Rizwan S/o.Syed Ghouse\n                                 Age about 42 years,\n                                 R/No.39/3, 2nd Cross,\n                                 J.J.Nagar, Goripalya,\n                                 Bengaluru.\n\n                               2. Syed Mujamil (Split-up)\n\n                               3. Muneer Ahammed (Abated)\n5. Offences                    U/Sec.63of Copyright Act.\n  complained of\n6.Plea                         Accused No.1 pleaded not guilty.\n                                2                   CC NO.7249/2016\n\n7.Final Order                  Accused No.1 is acquitted.\n8.Date of Order                18/03/2021.\n\n\n\n                              JUDGMENTThe Police Sub-Inspector of Yeshwanthapura Police Station,\n\n Bengaluru has filed this charge sheet against the accused Nos.1\n\n to 3 for the offence punishable U/Sec. 63 ofCopyright Act.2.   The brief facts of the prosecution case are as under:It is the case of the prosecution that on 01-08-2013 at 8.30\n\npm    in front of Yeshwanthapura Railway Station, within the\n\njurisdiction of Yeshwanthapura Police Station the accused No.1\n\nwas found selling duplicate Beedi by using the label, colour and\n\nstructure   of    packet   which   originally   belongs   to   CW.1\n\nSri.Mohammed Iliyas S/o.Ameer.       Further it is alleged that the\n\naccused was found in possession of 160 bundles of              fake\n\nS.K.Beedies and was also in possession of 5 gunny bags\n\ncontaining beedies without having any labels on them which were\n\nkept in Tata Ace vehicle bearing registration No.KA-02-AB-3302.3                    CC NO.7249/2016Immediately,       In this regard, CW.1 has lodged the First\n\nInformation Statement. Based on his complaint FIR came to be\n\nregistered   in   Cr.No.374/2013   for   the   offences   punishable\n\nu/Sec.52(a),63of Copyright Act andSec.420of IPC. Thereafter,\n\nthe Police went to the spot along with CW.1 and seized all the\n\nbeedies by drawing panchanama. Thereafter, CW.12 Police Sub-\n\nInspector completed the investigation and filed the charge sheet\n\nagainst the accused Nos.1 to 3 for the above said offence.3.    During crime stage accused No.1 to 3 have been enlarged\n\non bail. After filing of the charge sheet this Court has taken the\n\ncognizance of the offence punishable u/Sec. 63 ofCopyright Act.\n\nThe copy of the charge sheet has been furnished to the accused\n\nNos.1 to 3 as perSec.207of Cr.P.C. After hearing both sides the\n\ncharge has been framed and read over to accused Nos.1 to 3. But\n\nthey have pleaded not guilty and claimed to be tried. Hence, the\n\ncase has been posted for prosecution evidence.4.   The prosecution in order to prove its case has examined in4                  CC NO.7249/2016all 8 witnesses as PW.1 to PW.8 and got marked 9 documents as\n\nEx.P.1 to P.9. Thereafter, the accused No.2 has remained absent\n\nbefore this Court and the police have also not secured his\n\npresence before this Court in spite of issuance of non-bailable\n\nwarrant against him.   Hence, the case against the accused No.2\n\nhas been split-up as per order dated 23-9-2019.             After\n\ncompletion of the prosecution evidence the accused No.2 died.\n\nHence, the case against the accused No.2 is abated. Therefore,\n\nonly the statement of the accused No.1 u/Sec.313of Cr.P.C. has\n\nbeen recorded. He has denied the incriminating circumstances\n\nappearing in the prosecution evidence against him. He has not\n\nchosen to adduce his defence evidence.5.   I have heard the arguments of both sides. Perused the\n\nentire oral evidence and documents placed on record.6.   The points that arise for my consideration are as under:(1)Whether the prosecution proves beyond reasonable\n          doubt that on 01-08-2013 at 8.30 pm in front of\n          Yeshwanthapura     Railway  Station,  within  the\n          jurisdiction of Yeshwanthapura Police Station the5                   CC NO.7249/2016accused No.1 was found selling duplicate Beedi by\n           using the label, colour and structure of packet which\n           originally belongs to CW.1 Sri.Mohammed Iliyas and\n           thereby committed an offence punishable under Sec.63 ofCopyright Act?(2) What order ?7.   My findings to the above points are as under:Point No.1 : In the Negative,\n          Point No.2 : As per final order, for the following :REASONS8.   Point No.1 :-    The prosecution has alleged that on 01-\n\n08-2013 at 8.30 pm in front of Yeshwanthapura Railway Station,\n\nwithin the jurisdiction of Yeshwanthapura Police Station the\n\naccused No.1    was found selling duplicate Beedi by using the\n\nlabel, colour and structure of packet which originally belongs to\n\nCW.1 Sri.Mohammed Iliyas.           Therefore, the burden is on the\n\nprosecution to prove the guilt of the accused. As already stated\n\nsupra, the prosecution has examined in all 8 witnesses as PW.1\n\nto PW.8 and got marked 9 documents as Ex.P.1 to Ex.P.9.6                  CC NO.7249/20169.    The prosecution has examined the first informant/CW.1\n\nMohammed Iliyas as PW.2. He has deposed that some 3 years\n\nback at 8.30 pm he went to        near Yeshwanthapura Railway\n\nStation and found Beedies which were kept in the gunny bag for\n\nthe purpose of sale. As such he enquired the seller and came to\n\nknow that the Beedies were being sold for Rs.150/- per bundle\n\nbut the real cost of real beedies is Rs.205/- per bundle. Further\n\nhe has deposed that because of this reason he came to know that\n\nthe duplicate beedies were being sold in      the name of their\n\ncompany by using the same label, colour and structure of packet\n\nas used by them in packing the original beedies. He has also\n\ndeposed that thereafter he went to Police Station and lodged\n\ncomplaint as per Ex.P.1. Thereafter, he along with     the police\n\ncame to the spot and noticed six gunny bags containing beedies\n\nwhich were kept in the Ape Auto vehicle.        Thereafter, they\n\nenquired with the person who was in the possession of those\n\ngunny bags and came to know that his name as Rizwan and the\n\ndriver of the vehicle was also present at the spot. Further he\n\nhas deposed that in one of     the gunny bags they found 1607                 CC NO.7249/2016bundles of beedies with label of their company and the rest of\n\nthe beedies were not labeled.       He has also deposed that they\n\nfound the label of Ganesh beedi as well as such the police seized\n\nall   the beedies by drawing panchanama as per Ex.P.2 and\n\nobtained his signature.      He has produced     the certificate of\n\nCopyright which has been marked at Ex.P.5, GPA at Ex.P.3 and\n\nTrade Mark Certificate at Ex.P.4.      He has also identified   the\n\nsamples of     the beedies which are marked at MO.1.       He has\n\nidentified accused No.1 and also photo of Tata Ace vehicle which\n\nhas been marked at Ex.P.6.10.     The learned counsel for the accused has cross-examined\n\nPW.2.      In his cross-examination he admitted that he is not a\n\nexpert to give opinion with respect to original and duplicate\n\nbeedies.     Further he has admitted that he did not see the\n\naccused selling the beedies. He has also admitted that he put\n\nhis signature to the panchanama at Police Station.8                 CC NO.7249/201611.    The prosecution has examined panch witnesses CW.2\n\nHabeeb as PW.4 and CW.3 Abdul Khuddas as PW.5. In their\n\nexamination-in-chief they have deposed that some 3 years back\n\nnear Yeshwanthapura Railway Station the accused No.1 was\n\nfound in possession of duplicate S.K.Beedies which were kept in\n\nthe gunny bags in a Tata Ace vehicle. Further they have deposed\n\nthat the police seized the said duplicate S.K.Beedies by drawing\n\npanchanama as per Ex.P.2 and they put their signature to it.\n\nFurther they have deposed that accused No.1 took the police to\n\nthe godown, wherein,      they found gunny bags containing\n\nduplicate beedies and the duplicate Ganesh beedies as such the\n\npolice seized all the duplicate beedies by drawing panchanama as\n\nper Ex.P.7.   The learned counsel for the accused has not cross-\n\nexamined PW.4 and PW.5.12.   The prosecution has examined an eye witness CW.6\n\nManjunath as PW.8 and      the owner of Tata Ace vehicle CW.5\n\nSrinivas as PW.7. But they turned hostile to the prosecution\n\ncase by deposing that they did not know anything about this9                  CC NO.7249/2016case.    They have further deposed that they did not give any\n\nstatement before the police in this regard. The learned Sr.APP\n\ntreated PW.7 and PW.8 as partly hostile witness and cross-\n\nexamined them. But nothing worth has been elicited from them\n\nin support of the prosecution case.13.     The prosecution has examined another eye witness CW.7\n\nManjunatha.A as PW.6 . He has deposed that deposed that the\n\npolice caught accused No.1 while he was attempting to sell\n\nBeedies at Tea Shop near Yeshwanthapura Railway Station. But\n\nin his cross-examination he deposed that he did not know the\n\nregistration number of the vehicle and also did not know any of\n\nthe accused. He has also admitted that the police did not caught\n\nthe persons who were purchasing the beedies.14.     The prosecution has further examined official witness\n\nCW.11 Nagappa      as PW.3 who participated in conducting   the\n\nalleged raid.     In his chief-examination he has supported the\n\ncase of      the prosecution and      the role played by him in10                CC NO.7249/2016conducting the raid.    The learned counsel for the accused has\n\nnot cross-examined PW.3.15. The prosecution has also examined      the Market Surveyor of\n\nGanesh Beedi by name K.R. Prabhu as PW.1. He has deposed\n\nthat deposed that    the police informed him that they seized 7\n\ngunny bags of Ganesh Beedi and the labels as such he went to\n\nPolice Station and saw the seized items. Further he has deposed\n\nthat the seized Ganesh Beedies did not belong to his company\n\nand they were entirely different product. But he has not turned\n\nup for his cross-examination.16.    The evidence of PW.2 in the light of his cross-examination\n\nit clearly goes to show that he did not see the accused selling the\n\nBeedies.   It also shows that he put his signature to          the\n\npanchanama in       the Police Station.    Therefore, there is a\n\ncontradiction in his evidence. Further his evidence is contrary to\n\nthe evidence of panch witnesses PW.4 and PW.5. Therefore, it\n\ncreates a reasonable doubt about     the seizure of Beedies from11                  CC NO.7249/2016the possession of accused no.1.    Though, the prosecution has\n\nproduced Ex.P.4 Certificate of Trade Mark which belongs to CW.4\n\nbut it has not examined him.       It is relevant to note that the\n\nprosecution has not examined the Investigating Officer CW.12\n\nwho conducted investigation and filed charge sheet. Therefore,\n\nnon-examination of CW.4 and CW.12 Investigating Officer is fatal\n\nto the prosecution case. This Court is not inclined to believe the\n\nversion of PW.1 as he has not turned up for his cross-\n\nexamination.     PW.6 to PW.8 have turned hostile to           the\n\nprosecution case. Therefore, in my opinion, the prosecution has\n\nfailed to bring cogent evidence to establish that the accused No.1\n\nhas infringed    the Copyright of S.K.Beedies which exclusively\n\nbelongs to CW.4.   Therefore, the prosecution has utterly failed to\n\nprove the charges levelled against the accused No.1 beyond\n\nreasonable doubt. Accordingly,     I answer Point No.1      in the\n\nnegative.17.    Point No.2: For the aforesaid reasons, I proceed to pass\nthe following:12                      CC NO.7249/2016ORDER\n         Acting underSection 248(1)of Cr.P.C., accused No.1\n\n     is hereby acquitted of the offence punishable u/Sec.63of Copyright Act.The bail bond and surety bond of accused No.1 stand\n\n     cancelled.The office is directed to keep the entire file in split-up\n\n     case.(Dictated to the stenographer directly on computer, corrected directly on computer\nand then pronounced by me in open court on this the 18 th day of March 2021).(Arun Sadashiv Gudigenavar)\n                                 IX Addl.Chief Metropolitan Magistrate,\n                                              Bengaluru.ANNEXURE\n\n\nList of witnesses examined on behalf of the prosecution:PW.1:           K.R.Prabhu\nPW.2:           Mohammed Iliyas\nPW.3:           Nagappa\nPW.4:           Habeeb\nPW.5:           Abdul Khuddus\nPW.6:           Manjunath\nPW.7:           Srinivas\nPW.8:           Manjunath.13                  CC NO.7249/2016List of documents marked on behalf of the prosecution:Ex.P.1 :       Complaint\nEx.P.1(a):     Signature of PW.2\nEx.P.2:        Mahazar\nEx.P.2(a & b): Signatures of PW.4 & 5\nEx.P.3:        General Power of Attorney\nEx.P.3(a):     Signature of PW.2\nEx.P.4 :       Certificate of Trade Mark\nEx.P.5 :       Extract\nEx.P.6:        Photo\nEx.P.7:        Seizure mahazar\nEx.P.7(a &b): Signatures of PW.4 & 5\nEx.P.8 & 9:    Statements of PW.6 & 7.List of material objects marked on behalf of the prosecution:- NIL -List of witnesses examined on behalf of the defence:- NIL -List of documents and materials marked on behalf of the defence:- NIL -IX ADDL.C.M.M.\n                                        Bengaluru.14                     CC NO.7249/2016Judgment pronounced in the Open Court (Vide separate order)\n\n                        ORDER\n   Acting underSection 248(1)of Cr.P.C., accused No.1\nis hereby acquitted of the offence punishable u/Sec.63of Copyright Act.The bail bond and surety bond of accused No.1 stand\ncancelled.The office is directed to keep the entire file in split-up\ncase.IX ACMM, Bengaluru.