IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1751 OF 2013 BETWEEN:
MADHU PRODUCTS (OLD NO. 101 (A), NEW NO.46 2ND MAIN, INDUSRIAL TOWN RAJAJINAGAR, BANGALORE-560044 REPRESENTED BY ITS MANAGER SRI KULDEEP SINGH (BY SRI: MANIK, B.T., ADVOCATE FOR SRI: B C THIRUVENGADAM, ADVOCATE) AND 1. SUNDARAM FILES NO. 15/8, SHOP NO.1 3RD CROSS, ASHWATHKUTTE ROAD KASTURBA NAGAR MYSORE ROAD (NEAR PAGARIA FRUITS) BANGALORE-560026 REPRESENTED BY ITS PROPRIETOR MS AMBANI VASTABAI VAID 2. SRI NARAYAN PATEL NO.15/8, SHOP NO.1 3RD CROSS, ASHWATHKUTTE ROAD ... PETITIONER KASTURBA ROAD MYSORE ROAD (NEAR PAGARIA FRUITS) BANGALORE-560026.
3. SRI LALJI PATEL NO.15/8, SHOP NO.1 3RD CROSS, ASHWATHKUTTE ROAD KASTURBA ROAD MYSORE ROAD (NEAR PAGARIA FRUITS) BANGALORE-560026.
4. NARAYANA HIRA DUBARIYA NO.91, GROUND FLOOR NEAR BDA COMPLEX AUSTIN TOWN LAYOUT BANGALORE-560047 5. STATE OF KARNATAKA BY KAMAKSHIPALYA POLICE STATION BANGALORE REPRESENTED BY S P P ... RESPONDENTS (BY SRI: MOHAMED SADIQH B A, ADVOCATE FOR R1 R2-R4 SERVED AND UNREPRESENTED SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R5) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE P.O., FTC-II, BANGALORE IN CRL.RP.NO.99/12, ON 15.3.13 VIDE ANNEXURE- A SUPRA.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R A short question that calls for answer in this petition is, Whether the goods in relation to which offence is alleged to have been committed by the accused under the provisions of the Trade Marks Act 1999, could be released to the interim custody of the accused himself under sections 451 and 457 of Cr.P.C.?
2. The undisputed facts are that the petitioner herein namely Madhu Products, a Proprietary Concern, filed a private complaint before the IX ACMM Court, Bengaluru seeking action against respondent Nos.1 to 4 for the offences committed by respondent Nos.1 to 4 (herein after referred to as ‘accused Nos. 1 to 4’) under sections 102, 103 of Trade Marks Act, 1999, sections 63, 64, 65 and 66 of Copyright Act, 1957 and sections 120B, 420, 403 of Indian Penal Code. The learned Magistrate referred the complaint for investigation by respondent No.5. Respondent No.5 seized the infringing and counterfeit materials such as 5000 printed labels bearing the mark “SHIV NANDI”, 1980 finished files with the label of “SHIV NANDI”, 9000 semi-
finished files bearing the “SHIV NANDI” label and 6 kilograms of plastic covers. The seized properties were subjected to PF.No.287/2011.
3. Accused No.1 filed an application for release of the seized goods under sections 451 and 457 Cr.P.C. Learned Magistrate by order dated 5.11.2011 rejected the application on the ground that the application filed is premature and that the contention or claim of accused No.1 could be considered only after receipt of final report from the Investigating Officer. Accused No.1 filed another application for release of the very same properties by making a fresh application under sections 451 and 457 of Cr.P.C. The said application also came to be rejected by order dated 5.3.2012 on the ground that the application is premature and that the Registration Certificate standing in the name of accused No.1 had expired on 31.12.2010 and no documents were produced to show that same was renewed. Accused No.1 preferred revision petition against the said order and by the impugned order, learned Fast Track Court-II, Bengaluru by order dated 15.03.2013 in Criminal Revision Petition No.99/2012, set aside the order passed by the learned ACMM Court and directed the learned Magistrate to release the property in favour of accused No.1 by imposing reasonable conditions and taking sureties, indemnity bond etc. Aggrieved by the aforesaid order, the petitioner/complainant has filed this petition under section 482 Cr.P.C.
3. Heard learned counsel for the petitioner and learned counsel for respondents and perused the impugned order and the materials produced along with petition.
4. A perusal of the impugned order reveals that the learned Fast Track Court Judge has reversed the order passed by the learned Magistrate on the spacious reasoning that the registration obtained by accused No.1 has been renewed and that whether the accused has infringed the copyright of the complainant is a matter to be decided during trial. Learned Sessions Judge has proceeded on the basis that when the complainant has not claimed the interim custody or possession of the property, it is just and proper to return the property to accused No.1 till the completion of the trial. This reasoning of the learned Sessions Judge in my considered opinion is opposed to the provisions of section 66 of the Copyright Act, 1957 and section 111 of the Trade Marks Act, 1999 and therefore cannot be sustained.
5. Section 66 of the Copyright Act, 1957 provides for mechanism for disposal of infringing copies. The section reads as under:
66. Disposal of infringing copies or plates for purpose of making infringing copies.— The court trying any offence under this Act may, whether the alleged offender is convicted or not, order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies, or plates for the purpose of making infringing copies, be delivered up to the owner of the copyright or may make such order as it may deem fit regarding the disposal of such copies or plates.
This provision makes its clear that the Court while trying any offence under this act may deliver the infringing copies to the owner of the copy right or may make such order as it deems fit.
Such order as it deems fit does not mean that it can release the property to the accused himself. Such an order would defeat the very purpose of the Act and would have effect of facilitating the accused to perpetrate the very same offence he is accused of. Undisputedly, accused No.1 was not the owner of the copyright. Trial was in progress. Therefore, the question of releasing the goods to the accused during the pendency of the trial would be opposed to Section 66 of Copyright Act.
6. Section 111 of the Trade Marks Act, 1999 makes the position further clear. This section provides for forfeiture of goods. As per this section:-
(1) Where a person is convicted of an offence under section 103 or section 104 or section 105 or is acquitted of an offence under section 103 or section 104 on proof that he acted without intent to defraud, or under section 104 on proof of the matters specified in clause (a) , clause (b) or clause (c) of that section, the court convicting or acquitting him may direct the forfeiture to Government of all goods and things by means of, or in relation to, which the offence has been committed, or but for such proof as aforesaid would have been committed.
(2) When a forfeiture is directed on a conviction and an appeal lies against the conviction, an appeal shall lie against the forfeiture also.
(3) When a forfeiture is directed on acquittal and the goods or things to which the direction relates are of value exceeding fifty rupees, an appeal against the forfeiture may be preferred, within thirty days from the date of the direction, to the court to which in appealable cases appeals lie from sentences of the court which directed the forfeiture.
(4) When a forfeiture is directed on a conviction, the court, before whom the person is convicted, may order any forfeited articles to be destroyed or otherwise disposed of as the court thinks fit.
7. Since the accusation against the accused fall within the purview of section 102 and section 103 of the Trade Marks Act, even if he is acquitted of the alleged offences, on proof that he acted without intent to defraud the true owner, the goods are liable for forfeiture to Government. In view of this provision, the order passed by the learned Fast Track Court Judge releasing the properties to the interim custody of respondent No.1/accused No.1 cannot be sustained.
Accordingly, the petition is allowed. The order dated 15.03.2013 passed by Fast Track Court-II, Bengaluru in Crl.R.P.No.99/2012 is quashed. Consequently, the order dated 05.11.2011 passed by the learned Magistrate in PCR.No.20610/2011 in Cr.No.624/2011 is restored.
Sd/- JUDGE Bss