Quashed

Anand Palan and Anr., v. State of Goa, Thr. Its Chief Secretary and 2 Ors.

Bombay HC9 Oct 2019WPCR/120/2018

Case brief

AI extract

What is this about?

The Gujarat High Court (actually Goa HC) quashed an FIR under the Copyright Act, holding that the private complainant had manipulated the police to register the FIR solely to coerce the petitioners into settling for financial gain.

What did the court decide?

The impugned FIR No.93/2018 of the Margao Town Police Station is quashed, and the private respondent is directed to deposit $25,000 with the Goa State Legal Services Authority.

Anand Palan and Anr., Vs State of Goa, Thr. Its Chief… — Intellectual Property | Bombay HC (2019)

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IN THE HIGH COURT OF BOMBAY AT GOA

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CRIMINAL WRIT PETITION NO. 120 of 2018

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1 Mr. Anand Palan,

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11/12, Alfran Plaza, M.G. Road, Near Don Bosco School, Panaji, Goa-403001.

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2 Mrs. Sheetal Palan,

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11/12, Alfran Plaza, M.G. Road, Near Don Bosco School, Panaji, Goa-403001. ... Petitioners

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V/s.

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1 State of Goa.

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Through its Chief secretary, having Office at Secretariat, Porvorim, Goa.

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2 The Police Inspector, Margao Town Police Station, Margao-Goa.

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3 Shri Yogesh Jagdale,

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Field Executive Officer, Perfect Anti-Piracy Force, 11, Fragrance, Garden City Tower, P.K. Road, Mira Road (East), Thane, Maharashtra. ... Respondents.

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Shri Yogesh V. Nadkarni with Shri Sanket Kamat, Advocates for the Petitioners.

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Shri Mahesh Amonkar, Additional Public Prosecutor for Respondent Nos. 1 and 2. Shri S. Samant, Advocate for Respondent No. 3.

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Coram:- C. V. BHADANG &

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NUTAN D. SARDESSAI, JJ.

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Date:9^th October, 2019

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ORAL JUDGMENT: (Per Nutan D. Sardessai,J.)

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Rule made returnable forthwith. The learned Counsel

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for the respondents waive service. Heard finally by consent of the parties.

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The petitioners invoke the writ jurisdiction of this

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Court under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure,1973 to quash the FIR No.93 of 2018 dated 20/06/2018 registered by the respondent No.2 against petitioners under Section 63B and 69 of the Copyright Act,1957, 'Act', for short hereinafter.

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Heard Shri Yogesh Nadkarni, learned Advocate for the petitioners who contended that it was the modus operandi

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of the respondent No.3 to represent himself as the

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constituted attorney and Anti-Piracy Partner for many software companies and in liaison with the police/investigating agency had initiated FIR against them for the stated offences under the said Act. The respondent No.3 with the assistance of the Margao Town Police had searched the petitioners’ office at Margao and thereupon the offence came to be registered against them. The respondent no.3 had also pressurized the petitioners to sort out the entire matter and to pay exorbitant purported compensation to him. The law had been set in motion to make gains by the agents with the active help of the police and therefore considering the judgments in Bharat

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Mewawala and anr. v/s. The State of Maharashtra and Ors .[ Criminal Application No.198 of 2016] and Nirav Shah v/s. State of Maharashtra and Ors. [2018(2) Crimes 81(Bom.)] of the Division Bench of this Court passed

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at the principal seat, it was a fit case to quash the FIR.

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Shri Amonkar, learned Additional Public Prosecutor on

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behalf of the respondent Nos.1 and 2 submitted that this Court may pass appropriate orders, in the facts and circumstances of the case, and the decision in the case of Bharat Mewawala and Nirav Shah (supra)

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Shri S. Samant, learned Advocate for the respondent No.3 distinguished the judgment of the Division Bench in Bharat Mewawala and Nirav Shah (supra) and submitted that any person could set the criminal law in motion in case an offence was made out and there was nothing remiss in the act of the respondent No.3 in that regard.

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We have considered the submissions of the learned Advocates for the parties including the learned Additional Public Prosecutor on behalf of the State and more particularly considered the judgments in Bharat Mewawala and Nirav Shah (supra).

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In Bharat Mewawala (supra), the Division Bench of

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this Court at the principal seat was seized with the quashing

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of the FIR at instance of the petitioners in respect of the offences punishable under Sections 63B and 69 of the Act amongst other Sections and those of Section 420 r/w 34 IPC on the basis of the FIR registered at the instance of the 2nd respondent claiming to be an officer of 'Perfect AntiPiracy Force'. In the facts of that case, Their Lordships found that the respondent No.2 had liaisoned with the local police and on that basis had got the FIR registered against the petitioners and the entire modus operandi was such that liaisoning with the police was to ensure that the police carried out the investigation for the purpose of bringing the alleged offender to the negotiation table with the company. Their Lordships also found that the complaint filed by the second respondent was directly entertained by the Additional Commissioner of Police South Zone Mumbai, who in turn had directed the Gavdevi Police Station to take action which was a surprising course of action when even in the cases of serious offences against the society, the Additional Commissioner of Police were rarely seen issuing

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search directions to the concerned police station to take such action.

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In Bharat Mewawala (supra), the Division Bench of this Court at the principal seat came to a conclusion that by setting the criminal law in motion in this fashion, the 2nd respondent with the active help of the police ensured that the petitioners were brought to the negotiation table and which was done to ensure that the petitioners purchased the software in respect of which the respondent No.3 was claiming copyright resulting in substantial financial gain for the second respondent and in turn to the third respondent. In those set of circumstances, it was further observed that the police machinery was being allowed to be manipulated by such person who was openly carrying on the business of doing liaisoning work with the help of police. This Court issued directions to the Director General of Police to hold an enquiry into the whole episode through an appropriate Senior Police Officer so that the persons who were carrying on such business were discouraged.

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In the facts of the present case, it was clearly pointed

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out by Shri Nadkarni, learned Advocate for the petitioners that the respondent No.3 with the help of the Margao Town Police and purporting to be the Constituted Attorney and 'Anti-Piracy Force' for many software companies' had searched the premises of the petitioners' firm and only thereupon the offence came to be registered against them. Moreover, it was also shown from the petition which fact was not controverted by the respondent on oath that the petitioners had been pressurized by the respondent No. 2 to sort out the entire matter and pay exorbitant purported compensation to the respondent No.3. It was otherwise shown from the FIR that the respondent No.3 had broadly stated that he was the constituted attorney and Anti Piracy partner for many software companies and responsible to lodge a complaint with the local police/Honorable Court against the illegal uses of unlicensed/pirated softwares and that the police had to take a search warrant from the Court, if necessary, and carry out the search and seizure and

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infringing material under the said Act. It is based on this vague complaint of the respondent No.3 that the respondent No.2 had registered FIR No.23 of 2018 against the petitioners under the provisions of the said Act at 19.40 hours of 20/06/2018 when the date of occurrence of the alleged offence was prior to 16.45 hours of 20/06/2018 at the premises of the petitioners at Margao.

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'Perfect Anti-Piracy Force' was the same agency with which the respondent No.3 was associated and with which the Division Bench of this Court was concerned in the case of Mewawala (supra). In other words it is apparent that unlike the contention of Shri S. Samant, learned Advocate for the respondent No.3, the said agency appears to have taken forward its agenda of targeting persons like the petitioners in Goa after the curtains had been drawn over their activities in Maharashtra pursuant to the order of this Court in Bharat Mewawala (supra).

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In Nirav Shah (supra), another Division Bench of this

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Court at the principal seat was dealing with the petition under Article 226 of the Constitution of India r/w Section

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482 of CrPC for quashing the FIR registered at the Vikhroli Parksite Police Station under the provisions of the IPC and under Section 63B, 64 of the Act and Sections 65 and 67 of the Information Technology Act at the instance of the respondent No.2. It took into consideration the judgment in

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Bharat Mewawala (supra) where Their Lordships were inclined to issue directions to the Director General of Police to act in the matter looking to the liaisoning done by the private parties with the police to initiate complaints and get the FIR registered against the petitioners. Their Lordships found a striking resemblance between the facts in the petition and the facts alleged in Bharat Mewawala (supra) and ultimately held that it was fit to quash the crime registered at the Vikhroli Parksite Police Station.

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The case of the petitioners stands on a footing similar to that in Bharat Mewawala (supra) and which squarely

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applies to the facts of the present case where it has been clearly shown from the averments in the petition that the respondent No. 3 had liaisoned with the police and got the investigating machinery into action by registering an FIR against the petitioners for the offences under the Act. The facts pleaded by the petitioners regarding the attempt by the respondent No.3 to draw them to the negotiation table and the pressure exerted on them has not been controverted by the respondent No.3 despite opportunities given and even after Rule was issued in the matter. This is a clear case where the police appear to have fallen in the trap of the respondent No.3 and had liaisoned with the respondent No.3 to register an offence against the petitioners which cannot stand the test of scrutiny. We therefore pass the following

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ORDER

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