Atulbhai Rasikbhai Dudhwala vs State Of Gujarat
2023 Latest Caselaw 4925 Guj

      R/SCR.A/693/2014                                    ORDER DATED: 27/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 693 of 2014

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                 ATULBHAI RASIKBHAI DUDHWALA & 1 other(s)
                                 Versus
                      STATE OF GUJARAT & 2 other(s)
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Appearance:
MR SACHIN D VASAVADA(3342) for the petitioners(s) No. 1,2
MR SAMRAT N MEHTA(3949) for the petitioners(s) No. 1,2
MR APURVA A DAVE(3777) for the Respondent(s) No. 2
MR. DHAVAN JAISWAL, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 27/06/2023
                                    ORAL ORDER

1. Heard Mr. Sachin D. Vasavada, learned counsel for

the petitioners, and Mr. Dhavan Jaiswal, learned

Assistant Public Prosecutor for respondent Nos.1 - State

as well as learned advocate Mr. Apurva A. Dave for

respondent No.1. Though served none appears for

respondent No.3.

2. The present petition is filed for seeking following

prayers:-

"A. Your Lordships may be pleased to admit and allow

the present Petition;

R/SCR.A/693/2014 ORDER DATED: 27/06/2023

B. Your Lordships may be pleased to quash and set

aside the FIR registered as Crime Register No. 3042/13

at Annexure A and further be pleased to quash and

set aside the Charge sheet dated 30-07-2013 which is

filed in pending criminal case no. 305/2013 at court of

Metropolitan Magistrate alongwith the Criminal Case

no. 305/2013

C. Pending admission and final hearing of the present

petition. Your Lordships may be pleased to stay the

pending criminal proceedings being Criminal Case no.

305 of 2013 and further be pleased to stay the FIR

registered as Crime Register No. 3042/13 dated 27-05-

2013 and further proceedings on the basis of the said

FIR.

D. Your Lordships may be pleased to grant ad interim

relief, as prayed for, in terms of para 30 (C) during

the pendency and final disposal of the present

application.

E. Your Lordships may be pleased to grant any other

and further relief/s as may be deemed just and proper

in the interest of justice and fitness of things."

3. Learned counsel for the petitioners has taken this

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Court to the factual matrix arising out of the application

and also taken this Court through the impugned FIR

and contended that the allegations leveled in the

impugned FIR are on basis of the fact that the

complainant himself is an authorized person to carry out

all procedure of infringement of any copyright. The

allegations against the petitioners are that the petitioners

are selling duplicate spare-parts of the Hyundai

Company. It is pointed out that even though respondent

No.2-First Informant was neither having any

authorization under the law nor any assignment in his

favour, with the help of police without any warrant

ransacked the shop of the petitioners and used abusive

language upon the father of the petitioners and took the movable valuables.

4. Learned counsel for the petitioners further

contended that on reading the impugned FIR as it is, no

evidence as alleged has been made out. He further

contended that the Copyright Act and the Trade Marks

Act are not applicable in the present case for sale of the

automobile goods and the goods in which the petitioners

deals with i.e. automobile parts, provisions of the

R/SCR.A/693/2014 ORDER DATED: 27/06/2023

Copyright Act are also not attracted at all. Even the

provisions of the Trade Marks Act are not applicable in

view of the fact that the petitioners has not falsified any

trade mark or he has not applied any false goods or

services or any other instrument for the purpose of

falsifying or of being used for the purpose of falsifying a

trade mark. It is further submitted that even provisions

of Section 104 of the Trade Marks Act are not applicable

in the instance case.

5. Learned counsel for the petitioners further pointed

out that respondent No.2-First Informant has not

produced anything on record that to show that he is

authorized person to file the complaint on behalf of Hyundai Company and therefore, he contended that the

First Information Report is an abuse of process of Court

and law, and therefore, the same is required to be

quashed by exercising inherent jurisdiction under Section

482 of the Code. He further relied upon the judgment of

this Court in the case of Binita Rahul Shah Vs. State of

Gujarat reported in 2009(3) GLR 2688 and contended

that the ratio laid down in the said case squarely

applies to the facts of the present case. He further

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pointed out that in a similarly situated case of the facts

as well as law, this Court has quashed the complaint as

prayed for.

6. Per contra, Mr. Dhavan Jaiswal, learned Assistant

Public Prosecutor for respondent Nos.1 and 3, and

learned advocate Mr. Apurva A. Dave for respondent

No.1 have jointly submitted that the impugned FIR is

for the alleged offences punishable under Sections 63 and

65 of the Copyrights Act, 1957 and Sections 103 and 104

of the Trade Marks Act, 1999, however it may be noted

that learned APP has not been able to point out that

the allegations levelled in the First Information Report

relate to any of the items, which are envisaged under the purview and ambit of the Copyright Act, 1957.

Though served, none appears for respondent No.3.

No other and further submissions are made by learned

counsel for the parties.

7. Considering the aforesaid submissions made by learned

counsel for the parties and on perusal of the record, it

may be noted that the First Information Report is lodged

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by respondent No.2 in his capacity as Investigating

Officer of IPR Vigilance Indian Company. First

Information Report does not disclose as to which capacity

respondent No.2 has lodged the impugned FIR.

Section 2(c) and (d) of the Copyright Act, 1957

reads as under:-

(c) "Artistic work" means, (i) a painting, a sculpture,

a drawing (including a diagram, map, chart or plan),

an engraving or a photograph, whether or not any

such work possesses artistic quality; (ii) a [work of

architectural]; and (iii)any other work of artistic

craftsmanship; (d) "author" means, (i) in relation to a

literacy or dramatic work, the author or the work; (ii)

in relation to a musical work, the composer; (iii) in

relation to an artistic work other than a photograph,

the artist; (iv) in relation to a photograph, the person

taking the photograph; (v) in relation to a

cinematography film or sound recording, the procedure;

and (vi) in relation to any literacy, dramatic, musical

or artistic work which is computer generated, the

persons who causes the work to be created".

8. Considering the allegations leveled in the FIR, the

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same relate to the spare-parts of the Hyundai Company

and it is nowhere stated about the owner or author and

in what capacity respondent No.2 has lodged the FIR.

Apart from that, even if, the FIR is taken at its face

value, it refers to items, which do not fall within the

artistic work as defined under Section 2(c) of the

Copyright Act, 1957. It cannot be said that the spare-

part is literal work or musical work. It is not disclose

that the spare part is an artistic work or any other

such work that the provisions of Copyright Act, 1957

would apply. The impugned FIR also does not disclose

that if respondent No.2 has acquired any other right

conferred under the provisions of the Copyright Act, 1957

and therefore, provisions of Sections 63 and 65 of the Copyright Act, 1957 would not be applicable on bare

reading of the allegations leveled in the First Information

Report at its face value. Therefore, this Court is of the

opinion that prima facie no case is made out under

Sections 63 and 65 of the Copyright Act, 1957 and

Sections 103 and 104 of the Trade Marks Act, 1999,

even if it is taken at its face value. Even at the cost of

repetition, it may be noted that respondent No.2 does

not disclose his capacity to claim right of the Trade

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Marks Act.

9. The Court in the case of Binita Rahul Shah Vs. State

of Gujarat reported in 2009(3) GLR 2688, has observed

thus:-

"19. Section 63 of the Copyright Act states that any

person who knowingly infringes or abets the

infringement of the Copyright in a work shall be

punishable with infringement etc. The definition of the

term infringing copy as appearing in section 2(m) of

the Copyright Act reads as under :

2(m) 'infringing copy' means, -

(i) in relation to a literary, dramatic, musical or

artistic work, a reproduction thereof otherwise than in

the form of a cinematographic film;

(ii) in relation to cinematographic film, a copy of the

film made on any medium by any means;

(iii) in relation to asound recording, any other

recording embodying the same sound recording, made

by any means;

(iv) in relation to a programme or performance in

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which such a broadcast reproduction right or a

performer's right subsists under the provisions of this

Act, the sound recording or a cinematographic film of

such programme or performance, if such reproduction,

copy or sound recording is made or imported in

contravention of the provisions of this Act;

20. A plain reading makes it clear that the principal

work has to be either a literary, dramatic, musical, or

artistic work; or should be a cinematographic film; or a

sound recording, or a programme or performance in

which a broadcast reproduction right or a performer's

right subsists under the provisions of Copyright Act. In

the facts of the present case, admittedly the provisions

cannot be attracted, much less any ingredient thereof

is shown to have been satisfied even prima facie. The

Court is not concerned in these proceedings whether

any violation has occurred under the Provisions of

Designs Act, because that is not even the case of the

complainant. The settled legal position cannot be

understood to mean laying down a proposition of law

that the Court in these proceedings is precluded from

even a plain reading of the relevant provisions to

prima facie see whether any offence can be said to

have been committed or not."

The ratio laid down by this Court in the above

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referred case squarely applies in the present case.

10. The Court has also considered the judgment of the

Hon'ble Apex Court in Criminal Misc. Application (FOR

Quashing & Set Aside FIR/Order) No. 8903 of 2013

dated 02.12.2023 after considering the similar facts and

circumstances of the case.

11. Considering the submissions made by learned counsel

for the parties and on perusal of the impugned FIR,

prima facie, no case is made out against the petitioners

for the alleged offence under Sections 63 and 65 of the

Copyright Act, 1957 and Sections 103 and 104 of the

Trade Marks Act, 1999 and in view of the ratio laid down by this Court in the case of Binita Rahul Shah

(supra), this Court is of the opinion that continuation of

criminal proceedings against the petitioners would

amount to an abuse of process of law and Court. Hence,

to secure the ends of justice, the impugned FIR is

required to be quashed and set aside in exercise of

inherent power under Section 482 of the Code.

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12. For the foregoing reasons, the present application is

hereby allowed.

13. The impugned FIR registered as Crime Register No.

3042 of 2013 as well as the Charge sheet dated 30-07-

2013 which is filed in pending criminal case no. 305/2013

at court of Metropolitan Magistrate along with the

Criminal Case no. 305/2013 as well as all other

consequential proceedings arising out of the said FIR are

hereby quashed.

Rule is made absolute to the aforesaid extent.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA