Madras High Court

J. Mohamed Nizamudeen vs The State Rep. By The on 23 September, 2021

                                                                                 Crl.O.P.No.27086 of 2016

                                       IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       Dated : 23.09.2021

                                                          CORAM

                                   THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                                 Crl.O.P.No.27086 of 2016 and
                                             Crl.M.P.Nos.13706 and 13707 of 2016


                     J. Mohamed Nizamudeen                                  ... Petitioner


                                                              Vs.
                     1. The State rep. By the
                        Inspector of Police,
                        Video Piracy cell,
                        CBCID Vellore Unit
                        Vellore

                     2. M.V.Suresh Babu                                     ... Respondents


                               Criminal Original Petition is filed under Section 482 Cr.P.C., to call

                     for the records relating to the C.C.No.47 of 2016 on the file of the Judicial

                     Magistrate No.I, Hosur and quash the same.

                                   For Petitioner       : Mr.H.Nazirudeen, Sr.Counsel for
                                                          Mr.D.Gopal

                                   For Respondents      : Mr.E.Raj Thilak for R1
                                                          Government Advocate [Crl.side]

                                                         R2 – Served – Name Printed
                                                          – No appearance


                     1/13


https://www.mhc.tn.gov.in/judis/
                                                                                Crl.O.P.No.27086 of 2016



                                                         ORDER

The present Criminal Original Petition is filed under Section 482 to

call for the records relating to the C.C.No.47 of 2016 on the file of the

Judicial Magistrate No.I, Hosur and quash the same.

2. The brief facts of the case is that the petitioner was working with

M/s Sun Apparel Exports, as General Manager for the period from

01.05.2014 to 31.05.2015 and was relieved from the company in the month

of June, 2015. The 2nd respondent, is the defacto complainant, who is

authorized by M/s Madura Fashion and Lifestyle, a Division of M/s Aditya

Birla Nuvo Limited to give complaint against people or establishments who

are involved in infringing Copyright and Registered Trade mark. The said

company are branded licensees, engaged in the manufacturing of popular

brands viz., Van Heusen, Louis Philippe, Allen Solly, Peter England etc.,

3. The allegation levelled against the petitioner is that the

management of the Sun Apparel Exports functioning at Krishnagiri District

are involved in the manufacture of the above said branded duplicate shirts

and trousers and are selling the same in the open market, thereby caused

heavy loss to the company, apart from infringing provisions of the Copy

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.27086 of 2016

Right Act. Therefore the 2nd respondent had lodged a complaint against

Sun Apparel Exports for offences punishable under Section 51 read with

Section 63 of the Copy Right Act, 1957 and FIR has been registered in

Crime No.118 of 2015 and the same was culminated into C.C.No.47 of

2016.

4. According to the petitioner, he is no way connected with the affairs

of the Management of M/s Sun Apparel Exports and was only working as a

General Manager. The respondents in order to victimise the petitioner had

registered a false case against the petitioner and taken steps to implicate

the management of the Sun Apparel Exports. In fact, the task of the

petitioner is only to complete the orders of the management and no way

related to the procurement of material, as alleged. Further, the said

company is a partnership concern in which Ms.Sasikala and Ms.Asma bee

are the partners and the petitioner is not even incharge or an employee at

the point when the alleged offence is said to have been committed. There

is no specific allegation against the petitioner and the entire transaction

with respect to the goods was done in a legal manner by the management

of the Sun Apparel Exports. Without conducting preliminary enquiry, the 1st

respondent had mechanically registered the FIR in Crime No.118 of 2015

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.27086 of 2016

against the petitioner and the same was taken on file and the case is

pending in C.C.No.118 of 2015. Seeking to quash the same, the petitioner

has filed this petition.

5. The learned senior counsel appearing for the petitioner submitted

that the allegations in the complaint are baseless and misconceived and

the defacto complainant has intentionally given a false complaints. The

ingredients of the various offences are not made out and the provisions of

the Copy Right Act, 1957 have been invoked in a misconceived manner.

6. The learned senior counsel for the petitioner also submitted that

the prosecution is bound to explain as to how the Copyright has been

infringed and the petitioner is entitled to protection and would not constitute

an infringement. Further, the defacto complainant has to show prima facie

material that the names or logos as claimed by them are entitled to

protection under the Designs Act, since even according to their own

statement of being well known brands, the same loses its right to protection

after industrial application.

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.27086 of 2016

7. The learned senior counsel for the petitioner contends that the

cognizance of the complaint and the evidence collected in support of the

same does not disclose the commission of an offence and make out a case

against the accused, who was an employee, thereby pleaded to quash the

case against petitioner.

8. Per contra, the learned Government Advocate [Crl.Side]

appearing for the 1st respondent vehemently submitted that upon receipt of

the complaint lodged by the defacto complainant, the Inspector of police

took up the investigation and sent a advance intimation for search to the

Judicial Magistrate, Hosur. The Investigating officer went to the spot and

issued a search intimation to the accused concerned with regard to the

search of his premises and accordingly conducted search on 02.07.2015

and seized the following items under cover of mahazar in the present of

witnesses:-

1. Duplicate Allensolly pants – 58 bags each containing 100 pants,

totally 5800 pants.

2. Duplicate Super Dry Pants – 1 Bag each containing 50 pants –

totally 150 pants.

3. Duplicate label of Allen solly brand – 3500 nos.

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.27086 of 2016

4. Duplicate coller lable of Allensolly Brand – 3000 nos.

5 Duplicate Allan Solly Bottons – 2500 nos.

6. Duplicate Super dry brand card label – 300 nos.

7. Duplicate Super Dry price label, stated as Rs.1,199/- - 75 nos.

8. Delivery challan dated 17.05.2015 for the duplicate garments

transported from Dude'z company – 3500 meters of pant cloth.

9. Delivery challan dated 05.05.2015 for the duplicate garments

transported from Dude'z company –8000 meters of pant cloth.

10.Delivery challan dated 11.04.2015 for the duplicate garments

transported from Dude'z company – 7500 meters of pant cloth.

Further, the worth of the sezed properties were estimated at

Rs.1,19,18,150/-

9. The learned Government Advocate (Crl.Side) appearing for the 1st

respondent also submitted that the petitioner was arrested on 02.07.2015

and remanded to judicial custody on the same day and accordingly,

witnesses were examined and the statements were recorded. Further,

other accused / A.2 is still absconding and only after thorough

investigation, charge sheet has been laid. The investigation has been

conducted in a fair, free and impartial manner in accordance with law and

therefore, pleaded to dismiss the petition.

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10. Though notice was ordered to the 2nd respondent and name has

been printed in the cause list, there is no appearance for the 2nd

respondent either in-person or through learned counsel.

11. Heard the learned counsel appearing for the petitioner, learned

Government Advocate [crl.side] for the 1st respondent and perused the

documents placed on record carefully.

12. In order to deal with the case, it is necessary to extract the

relevant provisions of Sections 51 and 63 of the Copy Right Act.

Section 51. When copyright infringed.—Copyright in a work shall be deemed to be infringed:

(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act—

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or] 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or]"

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.27086 of 2016

(b) when any person—

(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or

(iii) by way of trade exhibits in public, or

(iv) imports 2[***] into India, 2[***] into India," any infringing copies of the work: 3[Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer.] Explanation.—For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.

Section 63 of the Copyright Act, 1957

63. Offence of infringement of copyright or other rights conferred by this Act.—Any person who knowingly infringes or abets the infringement of— (a) the copyright in a work, or

(b) any other right conferred by this Act, 1[except the right conferred by section 53A] 1[except the right conferred by section 53A]" 2[shall be punishable with imprisonment for a term which shall not be less than six months 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: Provided that 3[where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.] Explanation.—Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.”

13. In the complaint lodged by the 2nd respondent, it is alleged that

management of the Sun Apparel Exports is said to have involved in

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.27086 of 2016

manufacture of branded duplicate shirts and trousers, which belongs to

M/s Aditya Birla Nuro Limited and the said branded materials are protected

by Copy Right and Trade Marks Act. Further, the petitioner is the Factory

Manager in the said Sun Apparel exports and the same is evident from the

Service Certificate of the petitioner dated 01.06.2015.

14. It is to be noted that based on the complaint lodged by the 2nd

respondent for offences under Sections 51 r/w 63 of the Copy Right Act, a

Crime No.118 of 2015 was registered against the petitioner on 02.07.2015

and on the same day, the petitioner was arrested and remanded to judicial

custody. On 07.07.2015 the petitioner had preferred a bail petition before

the learned Judicial Magistrate No.1, Hosur and the petitioner was released

on bail on 09.07.2015 and the conditions imposed on the petitioner was

also relaxed on 20.07.2015.

15. As far as the instant case is concerned, the contention of the

petitioner is that the petitioner was relieved by the Management of M/s Sun

Apparel Exports on 31.05.2015, but the complaint was lodged only on

02.07.2015 and hence impleading the petitioner, that too after his

resignation in a criminal offence is an abuse of process of law. However,

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.27086 of 2016

on a perusal of the status report filed on behalf of the 1 st respondent, it is

found that the 1st respondent seized delivery challans, which are dated

11.04.2015, 05.05.2015 and 17.05.2015, for the duplicate garments

transported from Dude'z Company, viz., 7,500; 8,000 and 3,500 meters of

pant cloth respectively. Further, the petitioner submitted that his job is only

to complete the orders of the management of the company and he is no

way related to the procurement of material, as alleged, however, on going

thorugh the confession statment of the petitioner, it is seen that the

petitioner is responsible for all the activities in the company and he had

stitched the labels, infact, the cheques, which were supposed to be given

to Dudez company, were not produced to the said company and the same

was handed over to another company, namely, Armaan Constructions.

That apart, it is worthwhile to extract the relevant portion of the confession

statement, which is as follows:-

“rkpy; ghc&htpd; kidtp mrk;gPa[k; Myfphp g";rhaj;J jiyth; ghf;auh$; kidtp rrpfyht[k.; nrh;e;J g[jpjhf Muk;gpj;j rd; mg;nguy; vf;!n; ghh;l;!;f;F b$duy; nknd$uhf ntiyf;F nrh;e;njd;. fk;bgdpapd; midj;J bghWg;g[fisa[k; ehnd ftdpj;Jf; bfhz;nld;/ Muk;gj;jpy; rpwpJ rpwpjhf Mh;lh;fs; bgw;W ntiy bra;J te;njhk;/ vdf;F Mh;lh;fs; bfhLg;gjhf brhd;d g[Unc&hj;jkDk; Mh;lh;fs; vJt[k; bfhLf;f tpy;iy. ,e;epiyapy; Rkhh; K:d;W khj';fs; Kd;g[ bg';fSiu nrh;e;j bc&hpg; vd;gth; ,';F te;J Allan solly, Superdry gpuhz;ld ; l; ngz;lL ; fs; VHhapuk;

gP!;fs; ijj;J bfhLf;FkhW nfl;lhh; rk;ke;jg;gl;l fk;bgdpaplk; ,Ue;J bgw;w Mh;lhpd;

efiy jur;brhy;yp nfl;l nghJ ,it nghypahd nygps;fis bfhz;L jahhpg;gJ

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.27086 of 2016

fk;bgdpf;F xU ngz;l;f;F U:/ 110 k; vdf;F U:/ 50 k; fkpc&dhf bfhLg;gjhf brhd;dhh;/ fk;bgdpapy; ntiy rhpahf ,y;yhjjhYk; vdf;F fkpc&d; jUtjhf brhd;djhYk; ehd; mtuJ Mh;liu vLj;Jf; bfhz;nld;/ ,J nghypahd fk;bgdpnygps;fis bfhz;L jahhpg;gJ vd;gJ fk;bgdpapy; vdf;F kl;Lnk bjhpa[k;. Xzh;fSf;F bjhpahJ////// //////mjd; gpwF ijaw;Typ ntiyahl;fSf;F bfhLf;f ntz;o. ,uz;L jtizfspy; U: 2.00.000-k; tPjk;. ehd;F yl;rk; U:gha;f;fhd ,uz;L brf;Ffis bc&hpg; Mh;lh; bfhLj;j Dude'z fk;bgdpapd; bgahpy; juhky; ARMAAN – Constructionsfk;bgdpapd; bgahpy; brf;Ffis bfhLj;jhh;/ ngz;lL ; fs;

midj;Jk; jahuhdJk; kPjp gzj;ija[k; fpkc&ida[k; bfhLj;J tplL ; blypthp bgw;Wf; bfhs;tjhf brhy;yp,Ue;jhh; mjd; go Allan Solly fk;bgdp nygps;fs; Toa ; fisa[k; Super dry fk;bgdp nygps;fs; Toa 150 5800 ngz;lL ngz;;lL ; fisa[k; jahh;bra;J itj;jpUe;njd;/////”

16. On a careful reading of the complaint/FIR/charge-sheet,

confession statement and the statement of witnesses, this Court is of the

view that it cannot be said that the complaint does not disclose the

commission of an offence. The ingredients of the offences under Sections

51 r/w 63 of the Copy right act cannot be said to be absent on the basis of

the allegations in the complaint/FIR/charge-sheet. Apart from that, whether

the allegations in the complaint are otherwise correct or not, has to be

decided on the basis of the evidence let in during the course of trial.

However, it is made clear that what has been observed by this Court is only

for the purpose of disposal of the present petition. The trial Court may

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.27086 of 2016

proceed with the trial expeditiously without being influenced by the