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Bhupendra M. Patel and anr. Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1980CriLJ1017; (1980)GLR582
AppellantBhupendra M. Patel and anr.
RespondentState of Gujarat and anr.
Excerpt:
- - there is cogent and reliable evidence against accused no. it seems, the activity of illegally producing cassettes from recorded music by the company and other lawful holders of copyrights is on the increase and unless it is effectively checked, the provisions of the act will be rendered ineffective and this is, therefore, high time that such blatant infringement of copyright is severely dealt with. 1. it is true, under section 63(a) of the act, both the acts of knowingly infringing, as well as abetting infringement of copyright in a work, are punishable......bearing in mind these considerations, there is no scope for revising the order of sentence, so far as it concerns accused no. 1.8. but in my opinion, the case of accused no. 2 can be distinguished, so far as sentence is concerned from that of accused no. 1. it is true, under section 63(a) of the act, both the acts of knowingly infringing, as well as abetting infringement of copyright in a work, are punishable. but, in view of the fact that accused no. 2 has played a comparatively minor part in the commission of the offence, and in view of the fact that he has not been found to be actively associated with the business, to which accused no. 1 mostly attends, as also the fact that moneys are accepted by the said accused and receipts are also issued and signed by him, in my opinion,.....
Judgment:
ORDER

M.K. Shah, J.

1. The petitioners are the original accused who were tried by the learned Judicial Magistrate, First Class, at Anand for the offence under Section 63(a), or in the alternative, under Section 63(b) of the Copyright Act, 1957 ('the Act') read with Section 34 of the I.P.C. and under Section 120-B of the I.P.C. and were convicted by the learned Magistrate for the offence under Section 63(a) of the Act read with Section 34 of the I.P.C. and each one was sentenced to suffer S.I. for three months and pay a fine of Rs. 1,000, in default, one month's S. I.

2-3, x x x x x x x

2. Mr. D.K. Shah, the learned Advocate appearing for the accused, has not been able to show as to why the order of conviction and sentence so far as it relates to accused No. 1 should be interfered with in revision by this Court. There is cogent and reliable evidence against accused No. 1 establishing beyond reasonable doubt that he had committed the offence under Section 63(a) of the Act which provides, so far as it is material for our purpose, that-

Any person who knowingly infringes or abets the infringement of-

(a) the copyright in a work, or

(b) x x xshall be punishable with imprisonment which may extend to one year, or with fine, or with both.

The explanation is not relevant for our purposes.

5. x x x x.

6. I am unable to uphold the contentions raised by Mr. Shah with regard to the order of conviction passed against accused No. 2. Both the lower courts, have, on appreciation of the evidence which was on record and on assessment of the same, come to the conclusion that the said accused was guilty for the offence with which he was charged. Bhatia, in his evidence, in categorical terms has stated that when he visited the Music Centre on 14-7-1972 and 30-11-1972, both the accused were present along with some other persons and both the accused introduced themselves as partners of the Music Centre and also as brothers and when he asked the accused that he was interested in purchasing cassettes, then, that is both the accused, showed one of the cassettes out of the stock, Now, there is no effective cross-examination, challenging these statements of the witness to the effect that both the accused were present and that both of them showed him cassettes out of the stock. Even his statement that both of them introduced them as partners of the Music Centre was not challenged in cross-examination. With regard to his second visit on 30-11-1972, as per his say, catalogue Ex. 85 was given to him by accused No. 2. The said accused was present when the transaction with regard to 20 cassettes was effected by him on payment of Rs. 1,000 in all.

The finding of the learned Magistrate, therefore, was based on evidence which, on assessment by him, was found sufficient to establish the prosecution case that accused No. 2 had abetted commitment of the offence by accused No. 1. Again, the finding is not based on an isolation incident of his presence in the premises when Bhatia visited the same and purchased the cassettes. He has also taken some part in the dealings which took place between the Music Centre and Bhatia. The fact that he himself took out and handed over catalogue, Ex. 85 to Bhatia takes him out of the category of a person who is accidentally or incidentally present at the premises, the same being of his brother. The order of conviction, therefore, so far as accused No. 2 is concerned, is based on evidence establishing the guilt of that accused for the offence with which he was charged.

7. Mr. Shah, then lastly urged that, in the instant case, looking to the fact that a comparatively very insignificant and minor role is played by accused No. 2 in respect of the commitment of the offence and that the part which he played was of abetting the main act performed by accused No. 1, accused No. 2 should have been leniently dealt with by awarding a nominal punishment. With regard to the sentence, it has to be borne in mind that the same has to be deterrent enough so as to deter not only the accused, who have been brought to book, from indulging in the activities whereby there is infringement of copyright, but it should also deter others engaged in similar activities. It seems, the activity of illegally producing cassettes from recorded music by the company and other lawful holders of copyrights is on the increase and unless it is effectively checked, the provisions of the Act will be rendered ineffective and this is, therefore, high time that such blatant infringement of copyright is severely dealt with. However, the sentence has also to be proportionate to the gravity of the offence. Bearing in mind these considerations, there is no scope for revising the order of sentence, so far as it concerns accused No. 1.

8. But in my opinion, the case of accused No. 2 can be distinguished, so far as sentence is concerned from that of accused No. 1. It is true, under Section 63(a) of the Act, both the acts of knowingly infringing, as well as abetting infringement of copyright in a work, are punishable. But, in view of the fact that accused No. 2 has played a comparatively minor part in the commission of the offence, and in view of the fact that he has not been found to be actively associated with the business, to which accused No. 1 mostly attends, as also the fact that moneys are accepted by the said accused and receipts are also issued and signed by him, in my opinion, ends of justice would be met if the sub-stantive sentence of three months' S.I. awarded to accused No. 2 is sub-stituted by one month's S.I. without disturbing the sentence of fine.

9. Revision application partly succeeds.

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