Madras High Court
Krishna Gopal Agarwal vs The State Represented By on 17 February, 2021
Crl.O.P.Nos.22493 & 23891 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.02.2021
CORAM
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.Nos.22493 & 23891 of 2015
and
M.P.Nos.1 and 2 of 2015 in
Crl.O.P.No.22493 of 2015
Krishna Gopal Agarwal,
S/o. Shri.Fakir Chand Agarwal (late) ... Petitioner/A1 in
Crl.O.P.No.22493/2015
M/s.APL Apollo Tubes Limited,
Rep. By its Chairman and Managing Director
Mr.Sanjay Gupta,
Alur Village, Perandapali,
Hosur, Krishnagiri District. ... Petitioner/A5 in
Crl.O.P.No.23891/2015
Vs.
1.The State Represented by
The Sub-Inspector of Police,
Thimmapettai Police Station,
Vaniyambadi Town Circle,
Vellore District. ...Respondent/Complainant
both Crl.O.Ps
2.K.Boopathi,
S/o.G.K.Kesavalu Naidu @ Kesavan ... Respondent/ de facto
complainant in both Crl.O.Ps
1/19
https://www.mhc.tn.gov.in/judis/
Crl.O.P.Nos.22493 & 23891 of 2015
Prayer in Crl.O.P.No.22493/ 2015: Criminal Original Petition filed
under Section 482 Cr.P.C., to call for the records and to quash the First
Information Report in Crime No.33 of 2015 dated 08.04.2015, on the file
of the Sub-Inspector of police, Thimmapettai Police Station,
Vaniyambadi Town Circle, Vellore District registered for the offence
under Sections 468, 471, 418, 420 IPC and 51, 63, 65(A) of the
Copyright Act, 1957 and subsequent search and seizure made.
Prayer in Crl.O.P.No.23891/ 2015: Criminal Original Petition filed
under Section 482 Cr.P.C., to call for the records relating to the complaint
in Crime No.33 of 2015, on the file of the 1st respondent and quash the
same.
For Petitioner in
Crl.O.P.No.22493/2015: Mr.A.Ramesh, Senior Counsel
for Mr.C.Arun Kumar
For Petitioner in
Crl.O.P.No.23891/2015: Mr.C.Manishankar, Senior Counsel
for Mr.A.Velmurugan
For R1 in Both Crl.O.Ps: Mr.C.Iyyappa Raj,
Additional Public Prosecutor
For R2 in Both Crl.O.Ps: Mr.ARL.Sundaresan, Senior Counsel
for Mrs.AL.Gandhimathi
*****
https://www.mhc.tn.gov.in/judis/
Crl.O.P.Nos.22493 & 23891 of 2015
COMMON ORDER
The Petitioners who are Accused No.1 and Accused No.5 in Crime
No.33 of 2015, dated 08.04.2015, on the file of the 1st respondent and
they have filed these Criminal Original Petitions seeking to quash the
proceedings.
2.The brief facts of the case as per the defacto complainant viz.,
K.Boopathi, the 2nd respondent in these cases, is that his father viz.,
G.Kesavalu Naidu @ Kesavan, was engaged in the business of digging
bore wells and he passed away on 15.10.2014 and after his demise, the
de facto complainant is taking care of his business and also the cases
which were run by him. The de facto complainant's father in the course
of his business of digging bore wells had invented a different process and
he had applied for registration of Copyright before the Copyrights Office
at Chennai. The Copyright was published in the Government Gazette
vide No.441/ MAS/ 1999, 836/ MAS/ 2000 and 097/ MAS/ 2001.
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Crl.O.P.Nos.22493 & 23891 of 2015
3.In order to give the effect to the invention, his father had
approached manufacturers and owners of pipe manufacturing companies
and he entered into an agreement that one Binjarajaka Steel Tubes
Limited at Secundarabad. He had also applied for getting his Trademark
of “G.K.T” registered at the Office of the Registrar of Trademarks and he
had also obtained a certificate for the same. While so, he came to
understand that one Sri Lakshmi Mettal Udyog Limited and some other
companies in violation of the Provisions of the Copyright Act, had
manufactured duplicate pipes and sold them at Bangalore, Coimbatore,
Hosur and Vaniyampadi and thereby, his father had preferred complaints
against the violators based on which, cases in Crime Nos.139 of 2005
and 140 of 2005 were registered by the 1st respondent police against the
petitioners.
4.The offenders/violators in Crime Nos.139 of 2005 and 140 of
2005 had individually approached this Court and filed petitions in
Crl.O.P.Nos.17500/2008 and 17503/2008 and obtained stay orders and
thereby, the proper investigation could not be done. On 28.10.2014, this
Court had dismissed the petitions and had directed the 1 st respondent
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Crl.O.P.Nos.22493 & 23891 of 2015
police to complete the full-fledged enquiry and had also directed to
submit the report of the investigation before this Court on or before
31.03.2015. While that was so, two other companies viz., “Apollo Tubes
Limited, Hosur” and Calcutta Tubes India (P) Limited, Banglore” and its
Chairman and Directors have misused the invention of the de facto
complainant and had in order to cause wrongful loss to the de facto
complainant had manufactured and sold duplicate pipes, by appointing
authorised dealers and one such dealer Naaz Enterprises had sold the
pipes to one Mahesh, a rig owner by Bill No.082, dated 16.10.2014. The
de facto complainant personally enquired and found it to be true and he
had preferred the complaint against them for violating Sections 51& 63
of the Copyrights Act. Based on the complaint, a case was registered by
the 1st respondent in Crime No.33 of 2015, for the offence under
Sections 468, 471, 480, 420 IPC and Sections 51, 63, 65(A) of the
Copyright Act, 1957, against the companies and its officials. The present
petitions have been filed by the A1 and A5 to quash the FIR in Crime
No.33 of 2015.
5.Heard Mr.A.Ramesh, Senior Counsel appearing for the
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Crl.O.P.Nos.22493 & 23891 of 2015
petitioner/A1 and Mr.Mani Shankar, Senior Counsel appearing for the
petitioner/A5.
6.Mr.A.Ramesh, the learned Senior Counsel appearing for the 1st
petitioner /A1 would submit that at the outset, the entire proceedings is
nothing but an abuse of process of law. The de facto complainant, on the
date of complaint was not having any rights either Copyright or the
patent right in respect of the tubes as claimed by him. The de facto
complainant had suppressed the same and the FIR itself has to be
quashed on the ground of suppression of material facts. The learned
senior counsel would submit that the fact remains that the father of the
defacto complainant had earlier preferred a complaint which was
registered in Crime No.141 of 2005, by the very same 1st respondent.
Against the registration of the FIR, the petitioner had approached this
Court and filed Crl.O.P.No.20386 of 2005, and this Court by an order
dated 03.11.2009, finding that the copyright granted to the de facto
complainant's father relates only to the drawing submitted by him and
that it does not relate to the steel pipes manufactured by using the
drawings had held that the offence under Section 63 of the Copyrights
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Crl.O.P.Nos.22493 & 23891 of 2015
Act is not made out and had quashed the earlier complaint. This Court
had also quashed the complaint in respect of the other offences also.
7.Against the quashing of the FIR, the de facto complainant's
father viz., G.K.Kesavalu Naidu @ Kesavan had approached the Hon'ble
Supreme Court, by filing Special Leave to Appeal (Crl.) No(s).10081 of
2009 and the special leave petition was dismissed at the admission stage
itself on 26.02.2010 and thereby, confirming the order passed by this
Court. Thereafter, the de facto complainant's father had filed Review
Petition (Crl.) No(s).236 of 2010 in Special Leave Petition (Crl.)
No.10081 of 2009 and the same was also dismissed by this Court on
28.04.2010. Suppressing the same, the present complaint has been filed.
8.Meanwhile, the de facto complainant's father in violation of the
Statutory Provision under Proviso to Sub Section (1) of Section 45 of the
Copyright Act got the copyright entered in the Register, dated
09.12.2003.
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Crl.O.P.Nos.22493 & 23891 of 2015
9.Against the registration of the copyright granted to the de facto
complainant's father, the Federation of Industries of India (in which, the
petitioner is a member) through its Secretary General, had filed Case
No.2 of 2006, before the Copyright Board at Delhi, for the expunction of
two entries wrongly remaining in the Copyright Register and the
Copyright Board, Delhi after hearing the parties, by an order dated
04.07.2008, expunged the entries relating to registration granted to the
de facto complainant's father. Against the order of expunging the entries,
the father of the de facto complainant had preferred C.M.A.No.2859 of
2008, before the Division Bench of this Court and thereafter, he did not
pursue further and thereby, the C.M.A.No.2859 of 2008 came to be
dismissed. Further, the Federation of Industries of India and another have
filed a Civil Suit before the High Court of Delhi in CS (OS) No.596 of
2007, seeking to declare that the Copyright does not subsist in the
drawings entered in the Registrar of Copyrights under entry Nos.A-
65629/2003 and A-65630/2003, or in any another similar drawings that
may be in the possession of the de facto complainant's father and the suit
came to be allowed in favour of the Federation of Industries in India, by
an order dated 18.11.2011, declaring that the Copyright does not subsist
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Crl.O.P.Nos.22493 & 23891 of 2015
in favour of the de facto complainant's father. Further, the de facto
complainant's father was also directed to pay punitive damages to the
tune of Rs.2 Lakhs to the Federation of Industries in India for making a
wrong claim. The relevant paragraphs of the decree / order is extracted
hereunder:
“29.The suit of the plaintiffs is decreed in terms of
Para 30(i) to (iii) of the plaint. The same read as
under:
(i)A declaration that copyright does not
subsist in the drawings entered in the Registrar of
Copyrights under entry numbers A-65629/2003 and
65630/2003, or in any other similar drawings that
may be in the possession of the defendants;
(ii)An order restraining the defendants,
together with their employees, agents, servants and
all other acting on their behalf, from threatening the
plaintiffs including the members of plaintiff No.1
and from interfering with the manufacture of steel
tubes by them on the basis of the drawings
registered as “artistic works” under Nos.A-
65629/2003 and Nos.A-65630/2003 or any other
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Crl.O.P.Nos.22493 & 23891 of 2015
similar drawings in the possession of the defendants
or that they may make in future;
(iii)An order restraining the defendants,
together with their employees, agents servants and
all others acting on their behalf, from defaming the
plaintiffs including the members of plaintiff No.1, by
alleging that their activity of manufacturing steel
tubes amounts to any kind of copyright
infringement.
30.As far as other reliefs are concerned, the
plaintiffs are entitled for punitive damages to the
tune of Rs.2 lac against the relief of damages
claimed by the plaintiffs who are also entitled for
costs. The decree be drawn accordingly. All pending
applications stand disposed of. ”
10.Learned Senior Counsel would submit that in view of the above
orders, no right either Copyright or Patent Right subsists in favour of the
de facto complainant or his father, while so, in order to blackmail the
genuine manufactures and to obtain illegal gains, the de facto
complainant in collusion with the 1st respondent had preferred a false
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Crl.O.P.Nos.22493 & 23891 of 2015
complaint, based on which, he had been continuing to harass the
manufactures of pipes like that of the petitioners.
11.The learned Senior Counsel would further submit that the entire
proceedings is nothing but mere abuse of process of law by which, the de
facto complainant had obtained unjust enrichment under the threat of
arrest and seizure of the pipes from the factories belonging to genuine
manufacturers. He would reiterate that the entire registration of FIR and
further proceedings is nothing but an abuse of process of law and would
seek to quash the FIR. The learned senior counsel would further submit
that based on the false complaint and the registration of the case, the
petitioner had been subjected to harassment and loss. After registration of
the FIR, the 1st respondent police approached the learned Judicial
Magistrate, Vaniyambadi and obtained search warrant on 20.06.2015 and
also approached the Principal Civil Judge and JMFC at Nelmangala and
obtained permission to execute the search warrant. Pursuant to which, the
factory premises of the petitioner was searched on 01.09.2015. Though,
search warrant had been issued only to search the premises situated at
M/s.Calcutta Tubes India Private Limited at RRMR Extension at
Bengaluru, the premises of the petitioner at Budhihal Village,
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Crl.O.P.Nos.22493 & 23891 of 2015
Nelmangala Taluk, Bengaluru Rural District was searched and 985 pipes
were seized. The value of the seized pipes is worth about Rs.17,73,000/-
on the date of seizure and later, they were transported and they are now
in the custody of the respondent. Due to stay granted by this Court, the
petitioner in Crl.O.P.No.22493 of 2015 was unable to take return of the
pipes and thereby, M.P.No.2 of 2015 in Crl.O.P.No.22493 of 2015 had
been filed seeking for a direction to the 1st respondent police, to produce
the seized 985 pipes before the learned Principal District Munsif cum
Judicial Magistrate, Vaniyambadi and to return the pipes to the petitioner.
12.Mr.Manishankar, learned Senior Counsel appearing for the 5th
petitioner/A5 in Crl.O.P.No.23891/2015/A5, would submit that the
petitioner is a genuine manufacturer of pipes. Based on the false
complaint made with suppressions of vital facts, the case has been
registered and the petitioner has been subjected to continuous
harassment. He would submit that the fact remains that as on date, the
Copyright which was wrongly given to the de facto complainant has been
expunged by the order of the Copyright Board, Delhi, dated 04.07.2008
in Case No.2 of 2006. Further, the complaint is not clear as to whether
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Crl.O.P.Nos.22493 & 23891 of 2015
the de facto complainant claims to have got Copyright or a patent right.
Admittedly, as on date, the defacto complainant does not have copyright
as claimed by him. The copyright granted to his father had been
expunged. Once the Copyright granted to the de facto complainant's
father has been expunged, he has no right to maintain a complaint. He
would submit that when the de facto complainant does not have any
copyright, the complaint filed invoking the provisions of the Copyright
Act, is liable to be quashed.
13.In support of his contention he would rely upon on the
Judgment of the Hon'ble Apex Court in Krishika Lulla v. Shyam
Vithalrao Devkatta reported in (2016) 2 SCC 521. Wherein, the Apex
Court has held that when there is no copyright, the question of
infringement will not arise.
14.Mr.C.Iyyappa Raj, learned Additional Public Prosecutor would
vehemently oppose stating that there is no bar in entertaining the second
complaint when a case is made out. He would submit that the case has
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Crl.O.P.Nos.22493 & 23891 of 2015
been registered only on the directions of this Court and that the case is
only at the initial stage of investigation and the complaint cannot be
quashed at the threshold, without any enquiry or investigation being
conducted. He would further submit that because of stay, there is no
progress in this case and the investigation could not be conducted.
15.Mr.ARL.Sundaresan, learned Senior Counsel appearing for the
2nd respondent/de facto complainant would submit that in respect of a
similar complaint, some other accused similar to that of the petitioners
have approached this Court by filing Criminal Original Petitions in
Crl.O.P.Nos.17500, 17503 of 2008 and this Court by an order dated
28.10.2014, had dismissed the quash petitions stating that the ingredients
on the offences are satisfied and he would oppose for quashing the
Criminal Original Petitions. However, he would fairly submit that the
copyright granted to the father of the defacto complainant has been
expunged.
16.At this juncture, Mr.C.Manishankar, learned senior counsel
would submit that this Court, while dismissing the Crl.O.P.Nos.17500
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Crl.O.P.Nos.22493 & 23891 of 2015
and 17503/2008, had decided on the wrong premises that the Trademark
of the de facto complainant was infringed, whereas, it is the admitted
case of the complainant that the Trademark was not infringed. He would
submit that much water has flown down the bridge after the earlier
dismissal and as on date the de facto complainant has no Copyright as
allegedly claimed by him and thereby, the complaint itself cannot be
maintained and thereby further proceedings is nothing but an abuse of
process of law. He would further submit that as on date, the copyright
granted in favour of the defacto complainant's father has been expunged
by the Copyright Board, Delhi in Case No.2 of 2006, dated 04.07.2008
and the appeal preferred by the father of the defacto complainant has also
been dismissed and as on date, the defacto complainant does not have
any copyright.
17.Heard the counsels and perused the materials placed on record.
18.In this case, the defacto complainant has preferred the
complaint based on the Copyright alleged to be granted to his father. The
Federation of Industries of India through its General Secretary had filed
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Crl.O.P.Nos.22493 & 23891 of 2015
Case No.2 of 2006, before the Copyright Board at Delhi for expunging
the entries in the Copyright Register and the Copyright Board, Delhi by
an order dated 04.07.2008 had expunged the entries relating to
registration granted to the defacto complainant's father. Against that
order, the father of the defacto complainant had preferred
C.M.A.No.2859 of 2008 which came to be dismissed later. Further, the
Federation of Industries of India and another have also filed a Civil Suit
before the High Court of Delhi in CS (OS) No.596 of 2007, seeking to
declare that copyright does not subsist in the drawings entered in the
Register of Copyrights under entry Nos.A-65629/2003 and A-
65630/2003 or in any other similar drawings that may be in the
possession of defacto complainants father and the suit came to be
allowed in favour of the Federation of Industries of India by order dated
18.11.2011, declaring that the copyright does not subsist in favour of the
defacto complainants father and further the defacto complainant's father
was also directed to pay punitive damages to the tune of Rs.2 Lakhs to
the Federation of Industries of India for making a false claim. The fact
remains that, as on date, no copyright subsists either in favour of the
father of the defacto complainant or the defacto complainant who claims
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Crl.O.P.Nos.22493 & 23891 of 2015
through his father. When such being so, when there is no copyright, the
question of infringement will not arise as held by the Hon'ble Apex Court
in Krishika Lulla v. Shyam Vithalrao Devkatta stated supra and thereby,
the complaint cannot be maintained. However, the pendency of the FIR is
nothing but an abuse of process of law.
19.In view of the above, this Court is inclined to allow the
Criminal Original Petition filed by the petitioners and quash the FIR in
Crime No.33 of 2015, in respect of the petitioner.
20.Accordingly, these Criminal Original Petitions stand allowed.
and the proceedings in Crime No.33 of 2015 dated 08.04.2015, on the
file of the Sub-Inspector of police, Thimmapettai Police Station,
Vaniyambadi Town Circle, Vellore District, shall stand quashed.
Consequently, connected Miscellaneous Petitions are also disposed.
21.In view of quashing of FIR, M.P.No.2 of 2015 filed by the
petitioner in Crl.O.P.No.22493 of 2015, stands allowed. A direction is
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Crl.O.P.Nos.22493 & 23891 of 2015
issued to the learned Principal District Munsif cum Judicial Magistrate,
Vaniyambadi, Vellore District, to return the 985 pipes seized by the 1 st
respondent in connection with Crime No.33 of 2015 to the petitioner. If
the pipes are not produced before the Court the 1st respondent is directed
to return the pipes seized in Crime No.33 of 2015 to the petitioner in
Crl.O.P.No.22493 of 2015 forthwith.
17.02.2021
Index:Yes/No
Internet: Yes/No
ssi
To
The Sub-Inspector of Police,
Thimmapettai Police Station,
Vaniyambadi Town Circle,
Vellore District.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.Nos.22493 & 23891 of 2015
A.D.JAGADISH CHANDIRA, J.
ssi
Crl.O.P.Nos.22493 & 23891 of 2015
and
M.P.Nos.1 and 2 of 2015 in
Crl.O.P.No.22493 of 2015
17.02.2021
https://www.mhc.tn.gov.in/judis/
