Jignesh Bhagvatiprasad Pandya vs State Of Gujarat
2023 Latest Caselaw 7165 Guj

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    R/CR.MA/18648/2014                              JUDGMENT DATED: 29/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 18648 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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1     Whether Reporters of Local Papers may be allowed                  NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                           NO

3     Whether their Lordships wish to see the fair copy                 NO
      of the judgment ?

4     Whether this case involves a substantial question                 NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                         JIGNESH BHAGVATIPRASAD PANDYA
                                      Versus
                            STATE OF GUJARAT & 1 other(s)
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Appearance:
MS DIVYA SHAH, ADVOCATE FOR MR CHANDRAKANT S DAWANI(9592)
for the Applicant(s) No. 1
MR JAY H PATEL(10195) for the Applicant(s) No. 1
MS VRUNDA SHAH, APP PUBLIC PROSECUTOR for the Respondent(s) No.
1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                               Date : 29/09/2023

                               ORAL JUDGMENT

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1. This is an application filed under Section-482 of Cr.P.C.

praying to quash the complaint being C.R. No.II-593 of 2014

registered with Sayajiganj Police Station, Vadodara City for

the offences under Sections-63B and 64 of the Copyright Act.

2. It is the case of the prosecution that the present

applicant is the original accused and the Director of the

Variational Technologies Pvt. Ltd. having its office at 412-413

of the Saffron Complex, Fatehganj, Vadodara and dealing with

the software training programs for the students. The

complaint, who is officially appointed agent of the principal

company, namely Parametric Technology (India) Pvt. Ltd. [in

short 'PTC'] registered office at Marisolt II, Kalyani Nagar,

Pune (Maharashtra) and is supplying software technology to

its customers for the purpose of engineering design and

training.

3. That FIR came to be registered by the respondent no.2

at Sayajiganj Police Station, Vadodara City on 20.09.2014

alleging that four hard-disks were found from the place of the

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applicant, thereby it is alleged that the applicant had

committed an offence under the Copyright Act by using piracy

software of Rs.40,14,000/-, which is impugned before this

Court.

4. Learned advocate Ms. Divya Shah for learned advocate

Mr. Chandrakant Dawani for the applicant submits that the

contract came to be executed between the applicant and the

respondent no.2 in December, 2011 for the period of two

years, under which, the complainant - principal company was

supposed to supply required software technology to the

accused company for training purpose. The terms and

conditions were very specifically mentioned with regard to

license fee for imparting education by way of training to the

students. By paying royalty for the purchase of course

materials, certificates, student's licenses to the principal

company was also referred in the contract. The aforesaid

contract was further renewed for further period of two years

and for that, further agreement came to be executed on

20.12.2013, which is the part of the petition at Page-39.

Learned advocate further submits that there was a legal

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contract between the applicant and respondent no.2 - original

complainant and on making the payment of royalty charges,

the software was provided for the training purpose. Though

the agreement was in operation, the false and fabricated FIR

came to be lodged by the respondent no.2 alleging the offence

under the Copyright Act. Learned advocate relied on the

Section-52(i) of the Act and submitted in this provision, it is

provided that certain acts not falling under infringement of

the copyright, wherein, the offence narrated in the FIR is

covered. Learned advocate further drawn attention of this

Court to the provision of Section-52(aa) and submitted that

though the offence is of purely civil in nature with a view to

extort the money, the false and fabricated FIR is filed, which

is required to be quashed in the interest of justice.

5. Though rule is served to the respondent no.2, but he

chosen not to appear before this Court.

6. Learned APP Ms. Vrunda Shah for the respondent -

State submitted that on bare reading of the FIR, it transpired

that cognizable offence is made out and therefore, at this

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stage, no interference can be called for. Therefore, prays to

dismiss the application.

7. Considering the submissions made by the learned

advocates for the respective parties and before going to the

facts of the case, certain provision under the Act is required to

be considered.

Section-52(aa) - The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme from such copy--

(i) in order to utilise the computer programme for the purpose for which it was supplied; or

(ii) to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilise the computer programme for the purpose for which it was supplied;

Section-52(i) the reproduction of any work--

(i) by a teacher or a pupil in the course of instruction; or

(ii) as part of the question to be answered in an examination; or

(iii) in answers to such questions;

63B. Knowing use of infringing copy of computer programme to be an offence.-- Any person who knowingly makes use on a computer of an infringing copy of a computer programme shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:

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Provided that where the computer programme has not been used for gain or in the course of trade or business, the Court may, for adequate and special reasons to be mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees.

64. Power of police to seize infringing copies.-- (1) Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under section 63 in respect of the infringement of copyright in any work has been, is being,or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purposes of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable be produced before a Magistrate.

(2) Any person having an interest in any copies of a work , or plates seized under sub-section (1) may, within fifteen days of such seizure, make an application to the Magistrate for such copies , or plates being restored to him and the Magistrate, after hearing the applicant and the complainant and making such further inquiry as may be necessary, shall make such order on the application as he may deem fit.

8. Bare reading of the FIR, it suggests that respondent no.2

- original complainant had not disclosed the facts of the

agreement, which was executed between the parties i.e. with

the complainant and the applicant - accused. Initially, the

agreement, which is part of the record shows that it was for

two years, which was subsequently, extended on 20.12.2013

for further period of two years. The agreement further

suggests that the license fee, which is mentioned in the

contract, is paid by the accused, who is doing the business of

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providing training to the students. So far as the section, which

was relied by the learned advocate i.e. section-52(aa) and

52(i), which provides that certain acts would not be

infringement of the copyrights, wherein, it is provided

reproduction of any work by a teacher or a pupil in the course

of instruction would not be infringement of under the Act.

9. Though notice as well as rule was served to the

complainant, he did not appear before the Court, which also

suggests that the complainant is not interested in the

prosecution. Even otherwise also, the case of the applicant is

squarely covered under the Act wherein it is provided that

certain acts would not be infringement of a copyright.

10. Considering the materials placed with the petition

memo, it transpired that even if some dispute is there, the

same is of civil nature, but certainly would not covered any

penal provision for that. There is communication by the

respondent no.2 - complainant to make further payment of

Rs.20,00,000/- for the use of software. Therefore, there is no

doubt that there was contract between the respondent no.2

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and present applicant and the said fact was suppressed in the

FIR. This Court is of the view that the case of the applicant is

squarely covered of the decision rendered by the Hon'ble

Apex Court in the case of State of Haryana Vs. Bhajan Lal

reported in 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 .

Therefore, the application deserved to be allowed.

11. Resultantly, the application is hereby allowed. The

impugned complaint being C.R. No.II-593 of 2014 registered

with Sayajiganj Police Station, Vadodara City is hereby

quashed. Rule is made absolute to the aforesaid extent.

(M. K. THAKKER,J) A. B. VAGHELA