Karnataka High Court
Bangalore Refinery Private Limited vs State Of Karnataka on 5 March, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:9470
CRL.P No. 1751 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO. 1751 OF 2018
BETWEEN:
BANGALORE REFINERY PRIVATE LIMITED,
NO.6/1, PLOT-20A, KIADB MAIN ROAD,
PEENYA INDUSTRIAL AREA, 1ST CROSS,
1ST PHASE, PEENYA, BANGALORE CITY.
REP. BY ITS MANAGING DIRECTOR
MR.SURESH I DHRUV. ...PETITIONER
(BY SRI MADHU N RAO, ADVOCATE FOR SRI ADINARAYANA M,
ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY PEENYA POLICE STATION,
REP. BY PUBLIC PROSECUTOR,
Digitally signed HIGH COURT OF KARNATAKA,
by BANGALORE-560 058.
NARAYANAPPA
LAKSHMAMMA
Location: HIGH 2. SRI PRAKASH INGALE,
COURT OF S/O SOPAN INGALE,
KARNATAKA
AGED ABOUT 48 YEARS,
11, FRAGRANCE, GARDEN CITY TOWER,
P.K.ROAD, MIRA ROAD EAST,
THANE, MAHARASHTRA-401 107. ...RESPONDENTS
(BY SRI CHANNAPPA ERAPPA, HCGP FOR R1;
SRI NAVEED AHAMED, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE
FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY
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CRL.P No. 1751 of 2018
BE PLEASED TO QUASH THE COMPLAINT AND FIR IN
CR.NO.94/2018 FILED BY THE 1st RESPONDENT POLICE BEFORE
THE 45th A.C.M.M.,BANGALORE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the
following relief:
"To Quash the compliant and FIR in Crime No.
94/2018 filed by the 1st respondent Police before the
45th Addl. Chief Metropolitan Magistrate Court at
Bangaore in the interest of justice."
2. Respondent No.2 has lodged a complaint with the 1st
respondent-police alleging that the petitioner is
indulging in illegal activities of usage/ storage/
download etc., of graphic designing/ printing/
jewelry/ computer aided designing/ file condensing
and file resizing and various other software for the
last one year without a genuine or a proper licence
causing huge monetary loss to the complainant. On
which basis, Crime No.94/2018 came to be
registered by the Peenya Police Station for the
offences under Sections 63B and 51 of Copy Right
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Act, 1957 and Sections 420 read with 34 of IPC,
challenging the said FIR, the petitioner is before this
Court in this petition.
3. Sri Madhu N. Rao for Sri M. Adinarayana, learned
counsel for petitioner submits that complaint has
been filed by the Power of Attorney holder and not by
any owner of the software and as such, the complaint
is not maintainable; (2) that the complaint has been
filed only to get the petitioner to negotiating table to
make the petitioner to purchase software from the
complainant; (3) that the Company of which the
Power of Attorney holders are the directors has been
struck off from the Registrar of Companies and the
Directors Identification Number (DIN Number) issued
in their favour have been cancelled in the year 2015
untill 2021. The complaint has been filed on
22-2-2018 which was during the period when DIN
number has remained cancelled and as such, the
complaint could not be taken on record and on the
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above basis, he submits that the FIR which has been
registered is required to be quashed.
4. Sri Naveed Ahmed, learned counsel appearing for
respondent No.2/complainant would submit that
respondent No.2 is the Power of Attorney holder of
various Companies who have directed respondent
No.2 to check and take such action against such
persons who indulge in piracy of their respective
software and towards this end, respondent No.2 has
been authorized to file complaint, suits, swear to
the pleadings, engage counsels etc. and as such, it is
on that basis that respondent No.2 is taking action
against the persons who are pirating the software of
their respective principals which cannot be found
fault with. On this ground, he submits that the
petition as filed is required to be dismissed and the
investigation be proceeded.
5. Heard Sri Madhu N. Rao for Sri M. Adinarayana,
learned counsel for petitioner, Sri Channappa Erappa,
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learned HCGP for 1st respondent and Sri Naveed
Ahamed, learned counsel for 2nd respondent and
perused the papers.
6. Learned counsel for petitioner has relied on the
decision of the Hon'ble Bombay High Court in the
case of NIRAV DANISHKUMAR SHAH VS. STATE
OF MAHARASHTRA in W.P.NO.1920/2015
DATED 09-02-2018 to contend that the
complainant had indulged in business of registration
of offence and as such, the same is an abuse of the
process of Court. Paras 9 and 10 thereof are
reproduced herein as under:
9. "Thus, after going through the complaint search,
panchanama, the first remand report, we hold that the
police machinery has been set into motion by the
complainant as its business, to ensure that the petitioners
are brought to the negotiation table and further to ensure
that the petitioners either purchase the Software or pay
license fees, and/or damages to the complainant. Thus,
the law has been set into motion to make gains by the
Agents with the active help of police.
10. We have also perused the investigation papers. The
material collected in the investigation even otherwise
does not make out the case for registering the offences
under Sections 292, 353, 420 read with Section 34 of the
Indian Penal Code. No doubt, the offences registered
under the Copyright Act are of a serious nature but the
manner and the process which has been undertaken for
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registering the offences is not sustainable in law. The
facts of the case clearly indicate that the complainant and
the police indulged into activity, much less 'business of
registration of offence' which finally results into financial
gains to the complainant, which in our view is 'Abuse of
Process of Law'."
7. The said judgment of the Hon'ble Bombay High Court
being persuasive in nature and I am not persuaded
by the said judgment in as much as this Court would
have to take into account the prevailing realities in
the software sector. It cannot be expected that the
owner of the software deputes his own officers to all
nooks and corners of the Country to take action
against the person indulging in piracy. The
deputation of the employees of the Company is also
a strain on the resources of such company and as
such, engagement of private parties on agency basis
to take necessary action against the persons who are
pirating the software and using pirated software, in
my considered opinion, cannot be faulted with.
8. Whether company of which, respondent No.2 is a
Director is a defunct company and has been
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disqualified to act as the director will be of no
consequence since the power of attorney indicates
that the power of attorney has been issued in the
individual name and not in favour of the company.
Mere fact that they are represented to be directors
of the Company cannot make power of attorney
stated to be issued in the name of the company. The
power of attorney being issued in the individual
names the power of attorney holder would always
have the right to exercise the power contained under
the said power of attorney which right can only be
restrained by person who has issued the power of
attorney and not to the petitioner.
9. In such circumstances, it would be necessary for the
agents who have made specific allegation as regards
the specific software which has been pirated or used
without obtaining licence by the accused is to be
established so that necessary action could be taken.
In the present matter, as could be seen from the
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complaint, there is vague allegations made by
respondent No.2 that the petitioner is indulging in
illegal activities of usage/ storage/down load etc. of
graphic designing/ printing/ jewelry/ computer aided
designing/ file condensing and file resizing and
various other software for the last one year without a
genuine and proper licence thus causing huge
monitory loss to the company. The said complaint
does not, in fact, say which software has been used
by the accused and whether respondent No.2
represents the owner of the said software by way of
power of attorney. Vague allegations have been
made against the petitioner.
10. The police, in my considered opinion cannot exercise
the power under Sections 51 and 63B of the Indian
Copy Rights Act, 1957, to cause search and seizure
of premises of a private party without there being
any specific allegations which could be verified on
such search and seizure. The police authorities
cannot on the basis of the vague allegations make
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use of their police powers to enter into the premises
of any private citizen or entity to cause such search
and seizure without there being any substantial
basis for the said complaint requiring search and
seizure. In the present case as afore observed, the
allegations in the complaint being vague and there
being no mention about any particular software
which is pirated and used illegally by the petitioner,
the police- respondent No.1 cannot carryout any
further investigation. In that view of the matter, I
pass the following:
ORDER
(i) The criminal Petition is allowed.
(ii) FIR in Crime No.94/2018 registered by the
1st respondent-Police now pending before the 45th
Additional Chief Metropolitan Magistrate, Bangalore,
is quashed.
Sd/-
JUDGE
tsn*List No.: 1 Sl No.: 51.1
