Allowed

Basavaraj S/O Ummannappa Degul v. the State of Karnataka

Karnataka HC27 Oct 2023CRL.RP/100210/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka, Dharwad Bench allowed criminal revision petitions and acquitted the accused of charges under the IPC and Copyright Act. The court found the lower courts' convictions perverse due to glaring discrepancies in prosecution evidence, lack of accused examination, and failure to prove essential ingredients of the offences, necessitating extending the benefit of doubt.

What did the court decide?

Petitioner acquitted of charges; bail bonds cancelled; accused set at liberty; any fine to be refunded.

Basavaraj S/O Ummannappa Degul Vs… — Constitutional and Fundamental Rights | Karnataka HC (2023)

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CRL.RP No. 100211 of 2014 C/w. CRL.RP No. 100210 of 2014

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 27^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL REVISION PETITION NO. 100211 OF 2014 (397)

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C/W

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CRIMINAL REVISION PETITION NO. 100210 OF 2014

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IN CRL. R.P. NO. 100211/2014:

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BETWEEN:

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BASAVARAJ S/O. UMMANNAPPA DEGUL, AGE: 57 YEARS, OCC: BUSINESS, R/O: BASAWESHWAR NAGAR, OPPOSITE GOVERNMENT SCHOOL NO.4, GADAG.

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…PETITIONER

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(BY SRI. K.L. PATIL, ADVOCATE)

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AND:

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Date: 2023.11.07 10:14:17 +0530

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THE STATE OF KARNATAKA, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, THROUGH GADAG TOWN PS.

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…RESPONDENT

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(BY SRI. M.B. GUNDAWADE, ASPP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS IN C.C.NO.270/2005 ON THE FILE OF THE I-ADDL. CIVIL JUDGE (JR.DN.) & JMFC I-COURT, GADAG AND ALLOW THIS CRIMINAL REVISION PETITION BY SETTING ASIDE THE JUDGMENT AND ORDER DATED 30.09.2014 PASSED BY THE ADDL. DIST. & SESSIONS JUDGE, GADAG, IN CRL.A.NO.30/2009 REGISTERED FOR THE

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CRL.RP No. 100211 of 2014 C/w. CRL.RP No. 100210 of 2014

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OFFENCES P/U/S 482, 486 & 420 OF IPC AND SEC. 630 OF COPY RIGHTS ACT.

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IN CRL. R.P. NO. 100210/2014:

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BETWEEN:

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BASAVARAJ S/O. UMMANNAPPA DEGUL, AGE: 57 YEARS, OCC: BUSINESS, R/O: BASAWESHWAR NAGAR, OPPOSITE GOVERNMENT SCHOOL NO.4, GADAG.

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…PETITIONER

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(BY SRI. K.L. PATIL, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, THROUGH GADAG TOWN PS.

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…RESPONDENT

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(BY SRI. M.B. GUNDAWADE, ASPP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C. PRAYING TO ALLOW THIS CRIMINAL REVISION PETITION BY SETTING ASIDE THE JUDGMENT AND ORDER DATED 30.09.2014 PASSED BY THE ADDL. DIST. & SESSIONS JUDGE, GADAG, IN CRL.A.NO.11/2006 AND SET ASIDE THE ORDER OF CONVICTION DATED 25.03.2006 PASSED BY THE I-ADDL. CIVIL JUDGE (JR.DN.) & JMFC I-COURT, GADAG IN C.C.NO.270/2005 FOR THE OFFENCES P/U/S 482, 486 & 420 OF IPC AND SEC. 63 OF COPY RIGHTS ACT, 1957 IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE PETITIONS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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These two Criminal Revision Petitions arise out of a single judgment passed by the I Additional Civil Judge (Jr. Dn.) and JMFC, I Court, Gadag in C.C.No.270/2005 dated 25.03.2006. The records reveal that being aggrieved by the said judgment of conviction and order of sentence passed in the aforesaid criminal case, the accused/revision petitioner preferred Criminal Appeal No.11/2006 independently. Whereas the State also has preferred Criminal Appeal No.30/2009 for enhancement of the sentence. Both the appeals were tried by the Additional District and Sessions Judge, Gadag together and common judgment is passed by the first appellate Court confirming the judgment passed by the Trial Court.

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For the purpose of convenience parties to these petitions referred to as per their ranks before the Trial Court.

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Brief and relevant facts leading up to these revision petitions are as under:

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That the complainant/CW-1 by name Colonel I.P.S. Gill (retired) lodged a complaint on 17.12.2004 at 12.15 p.m.,

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appearing before Gadag Town Police Station alleging that on that day himself and police conducted raid in the shop of accused i.e., Mallikarjun Traders situated at CTS No.3783/6. On conducting raid, it was noticed by them that, the accused had stored spurious oil in the old Castrol Oil Company cans used by the complainant. It was sealed with a cap having counterfeit property mark resembling to Castrol Oil Company. This conduct of the accused was with an intention to cheat the complainant’s company and also sell the same to general public to have an unlawful gain for himself. Therefore, complaint came to be lodged as per Ex.P.7. The same was registered by Gadag Town Police in Crime No.134/2004 and the criminal law was set in motion.

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The police after conducting the investigation and after complying all the formalities of the investigation, filed the charge sheet against the accused for the offences punishable under Sections 482, 486, 420 read with Section 511 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’, for brevity) and Sections 51 and 63 of The Copyright Act, 1957 (hereinafter referred to as the ‘Act, 1957’, for brevity).

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Learned Judicial Magistrate has followed all the procedure, recorded the charge against the accused for the aforesaid offences were framed, read over and explained to the accused in the language known to him. He pleaded not guilty and claims to be tried.

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Before the Trial Court to prove the allegations made in the charge sheet, prosecution in all examined seven witnesses in the shape of PWs.1 to 7 and got marked Ex.P.1 to P.17 with signatures thereon. Also marked M.O. Nos.1 to 6 and closed prosecution evidence.

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Learned Trial Court on hearing the arguments and

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on perusal of the records found the accused guilty of the aforesaid offences and sentenced him as under:

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“Accused is sentenced to undergo S.I. for 6 months and shall pay a fine of Rs.1,000/- each for the offence U/sec. 482 of I.P.C. in default shall undergo S.I. for one month.

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Accused is sentenced to undergo S.I. for 6 months and shall pay a fine of Rs.1,000/- each for the offence U/Sec. 486 of I.P.C. in default shall undergo S.I. for one month.

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Accused is sentenced to undergo S.I. for 6 months and shall pay a fine of Rs.1,000/- each for the offence U/sec. 420 of I.P.C. in default shall undergo S.I. for one month.

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Accused is sentenced to undergo S.I. for 6 months and shall pay a fine of Rs.5,000/- each for the offence U/sec. 63 of Copyright Act in default Act in default shall undergo S.I. for one month. The minimum fine prescribed in this case is Rs.50,000/-, but magistrate can award lesser fine for the reasons recorded by it. In this case the accused has already been convicted and sentenced under the various provisions of I.P.C. hence liberal view can be taken in imposing lesser fine under this provision. Accordingly a fine of Rs.5,000/- is imposed.”

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This judgment of conviction and order of sentence passed by the Trial Court was challenged by the accused by preferring Criminal Appeal No.11/2006. Whereas for enhancement of the sentence, the State also has preferred Criminal Appeal No.30/2009 before the first appellate Court. The Additional District and Sessions Judge, Gadag being the first appellate Court on hearing the arguments and on perusing the documents, allowed Criminal Appeal No.30/2009 filed by

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the State and dismissed Criminal Appeal No.11/2006 filed by the accused/revision petitioner by enhancing the sentence, it was ordered by the first appellate Court directing the accused to undergo simple imprisonment for one year and also directed to pay fine of Rs.25,000/- for the offence punishable under Section 63 of the Act, 1957 with default sentence.

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This is how now the accused/revision petitioner is before the Court challenging the said judgment of dismissal of the appeal and enhancement of the sentence passed by the first appellate Court by preferring the aforesaid two revision petitions.

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It is argued by learned counsel for the accused/revision petitioner that the column No.17 of the charge sheet, it shows a different name of the shop of the accused. The date of the complaint is 17.12.2004. Whereas, as per the prosecution papers the alleged so called raid was conducted on 16.12.2004. The complainant has not been examined before the Trial Court. The panchanama alleged to have been prepared at the spot, were actually prepared in the police station. It is further submitted that the very seizure of the oil is

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disputed by the accused/revision petitioner. The same company has received the said seized oil and given a report. In fact the said alleged seized oil ought to have been sent to the central laboratory for the purpose of chemical examination. In the absence of the same, the self serving report of the complainant company cannot be accepted. PWs.2 and 3 are the employees of the company. It is quite natural to expect their support to the case of the prosecution. PW.5 is the controller, PWs.6 and 7 are the police officials. According to his submission there is a serious lacuna in the case of the prosecution. Though the alleged raid was conducted on 16.12.2004, but the crime was registered on 17.12.2004 which is an after thoughts.

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In support of his submission, he relied upon the various evidence placed on record by the prosecution. He pointed out so many contradictions, omissions in the evidence, According to his submission, the prosecution case suffers from material particulars. No sample was drawn according to his submission. It was not sent to Government Agency. Therefore,

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according to his submission the evidence of the prosecution cannot be accepted.

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As against this submission, learned Additional State Public Prosecutor Shri. M.B. Gundawade appearing for the State submits that learned Trial Court as well as first appellate Court have concurrently held that the accused has committed the offence in the manner alleged in the complaint. He submits that, in the revision, there is no scope for interference to the concurrent findings. He further submits that as the accused was found selling spurious Castrol Oil to the public at large and has committed the offence not only under the provisions of IPC but also under the provisions of the Copyright Act, 1957. Therefore, he submits that by appreciating the evidence, even the first appellate Court also has enhanced the sentence against the accused. Hence, it is prayed by the learned counsel for the State to dismiss both the revision petitions.

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I have given my anxious consideration to the arguments of both sides. Meticulously perused the records.

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On perusal of the documentary evidence, it shows that Ex.P.7 is the complaint filed by one Colonel I.P.S. Gill

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(retired) by appearing before the Sub-Inspector of Police, Gadag Town Police Station. On reading the text of this Ex.P.7 it shows that, it is in a printed format. The name of the accused is written in ink. Pointing out this hand writing in the complaint, it is argued by learned counsel for the accused/revision petitioner that, in a printed format, is just a fill in the blank. It is further submission that, the complainant is not examined by the prosecution. Therefore, he submits that, contents of the complaint cannot be accepted as truthful one.

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Ex.P.1 is the seizure panchanama. It shows that, the raid was conducted on 17.12.2004. At the time of seizure these M.Os. marked have been seized by the police. Ex.P.2 is the document of Castrol Indian Limited, wherein, it contains a report regarding the examination of seized Castrol Oil. It shows that it is spurious oil according to the prosecution. Likewise, Ex.P.3 to P.6 are the similar reports. Ex.P.8 is the FIR. Except these documents no other documents are produced by the prosecution to prove that that the so called Castrol Oil so seized from the possession of the accused really contains spurious

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castrol oil and there was a infringement of the copyright by the accused.

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To substantiate the said documents, prosecution relies upon the evidence of PW.1 who being the pancha to Ex.P.1. This pancha at Ex.P.1 turned hostile. Though lengthy cross examination is directed to PW.1, but nothing worth is elicited from the mouth of this witness so as to disbelieve his version in the cross examination. In criminal cases panchas are the authors of the panchanama. When pancha turned hostile, no evidentiary value can be attached to his evidence. That means, the very seizure of M.Os. so marked in this case in the presence of PW.1 cannot be accepted as PW.1 has been turned hostile.

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PW.2-Murali S/o. Ramalu is the official of the Castrol Indian Oil Limited and working as agent at Hyderabad at relevant time. He deposes in his evidence that his company sells the Castrol Engine Oil in the Cans with a brand name Castrol Indian Oil Limited. According to him CW.1 who is not examined in this case is the person who is responsible to conduct the raid with regard to the selling of duplicate Castrol

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Oil. He further stated that, the raid was conducted on 16.12.2004 to the shop of the accused. At that time CWs.1, 5 and 6 were present. According to his evidence, himself CWs.5 and 6 went to the automobile shop of the accused and purchased Castrol Engine Oil. After purchasing of the same, they came to know that it was duplicate Castrol Oil. Thereafter, they went to the police station on 16.12.2004 itself. It was informed to the police station that the said purchased Castrol Oil is duplicate Castrol Oil. CW.1 lodged a complaint. At that time it is stated by him that CW.1 has also bought original Castrol Oil. He has narrated about the difference in the product to the police. Thereafter 22 cans containing 5 liter each and one can of 6 liter was produced before the police. Police seized them. It is further stated by him that they are marked it as M.O. Nos.1 to 6.

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It is elicited in the cross examination that name

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of the shop of the accused is called as Basavaraj Automobiles. He does not know the boundaries of the said shop. He does not know that, who are partners to the said shop. He has denied all these suggestions. He admits

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that, at the time of purchasing the sample and seizure of the same, sample was not examined by him. He put his signature on the said material objects. But he admits that M.O.1 to 6, when confronted to him, does not contain his signatures. It is further stated by him that, the caps of the said cans so produced before the Court were open. Even the sample packets so seized were also open. The said cans and sample packets containing oil are not measured. He admits that he is not an expert in ascertaining that whether the said oil is duplicate or genuine. He admits that as per the say of the police, the seizure was conducted.

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From the evidence of PW1, it is very much clear that at the time of conducting raid by CW1, CW5 and CW6 along with this PW1. Whether the police were present or not is not stated by him. But the evidence brought on record by the prosecution shows that the police were also accompanied with raid party.

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One Murali, who is examined as PW2, has purchased the said 1 liter oil can. But he never says that he

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purchased the said 1 liter oil can. He also pleads ignorance as to whom the fare was paid.

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PW3-Anand Kumarareddy is another official of Castrol Oil Company Ltd. He too corroborates the evidence of PW1 in material particulars. He is specific that on 17.12.2004 raid was conducted to the shop of Mallikarjun Traders at 12.00 noon. At that time, the accused was very much present there. From the shop of the accused, 5 liter and 1 liter castrol oil can, were purchased. It is informed by the accused that, for 5 liter oil can he is not going to issue any bill and for 1 liter oil can, he is going to issue bill. But that bill is not produced before the Court by the complainant.

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He also identifies M.O.1 to 6 having seized from the shop of the accused. This PW2 has also been cross-examined at length by the defence. It is elicited from his mouth in his crossexamination that, he has not given any statement before the police regarding the case. On the same day itself, they have obtained receipt for having paid Rs.490/-. However, that receipt is not produced before the Court. Even he is ignorant as to in whose name said receipt was issued by the accused. The

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shop of the accused is situated at Gadag. According to his evidence, the father of the accused is the owner of the said shop but he is not arraigned either as accused or arrayed as witness in this case to substantiate the plea of conducting raid in the manner stated by the prosecution. He too has signed on M.O.1 to 6. According to him, M.O.2, M.O.4 and M.O.6 are not belonging to his company. On that day, 15-20 shops were checked by them. But PW2 never says about checking of 15-20 shops on the said day by CW1 and officials. According to him, in 3-4 shops they found duplicate castrol oil being sold. The particulars of those 3-4 shops are not furnished by this PW3.

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PW4-Venkatesh Desai is a pancha to Ex.P1 and he turned hostile. So the very presence of this PW4 at the time of conducting the raid is not duly proved in accordance with law.

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PW5-Balasubramanyam is another official who prepared the reports as per Ex.P2 to Ex.P6. He is an official of the castrol oil company. Obviously, as per the say of CW1, he might have prepared the reports to suit the purpose of complaint allegations. In the absence of report from the competent authority under the provisions of Indian Copy Right

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Act or under IPC, this self-serving report cannot be accepted for the simple reason that when such a raid was conducted and when it was alleged by such companies that there is violation of Copy Right Act by the vendors of such castrol oil or other products and if it is noticed that such a duplicate oil is being sold, for ascertaining the same, it is the duty of the complainant or the Investigating Officer, as the case may be, to submit the same to the competent agency i.e. Govt. public analyst to know that whether such oil so seized is duplicate oil or not. The public analyst is the best person to analyze the product and assertain that whether it is duplicate or original one. But this PW5 is a quality control manager of castrol oil India Limited and he has certified that M.O.4 to 6 contain duplicate castrol oil. Though he corroborates the contents of those reports, but in the cross-examination, he states that the cans are similar so seized by the police. He deposed ignorance about individual identification of the packets. So also, he says that, his assistant by name Shekhar has opened the packets. It was Shekhar, who examined the said material objects and prepared the report and on examining the said report he put his signature. Evidently said Shekhar is not examined by the

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prosecution. He is not arrayed as witness. According to him, there is possibility of manufacturing oil branding them as of castrol company oil and they can be identified by him. According to his evidence, police independently brought the said products and got the reports from him. What was the difficulty for the police to send the said alleged duplicate castrol oil samples to the Government public analyst or the government laboratory for chemical examination is not explained by the prosecution.

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PW6-Vijaykumar Talawar, was the PSI and PW6 was a police constable at the relevant point of time. On perusal of the evidence of PW6, he specifically states that on 17.12.2004 at about 1.45 p.m. he received the complaint. The evidence of official witnesses shows that the raid was conducted on 16.12.2004 and on the same day compliant was lodged. Therefore, the very filing of the complaint on 16.12.2004 is disproved by the evidence of this PW6, the then PSI of Gadag police station. Even some improvements in the evidence are noticed.

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So far as offence under section 483 and 484 of IPC are concerned, it speaks of counterfeiting a property mark used by another. It is mandatory on the part of the prosecution to prove that it is the accused, who counterfeited the property mark used by the Castrol Oil Company and was found selling the same. Merely because there is storage of articles, it cannot be presumed that the accused has committed the said offence. There is no evidence placed on record that public have purchased the said castrol oil and have used it for their vehicles. No such evidence is brought on record.

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Section 486 of IPC speaks on selling of goods marked with a counterfeit property mark. To show that the accused was really found selling such product to public by counterfeiting the property mark, except self-serving evidence of the official witnesses of castrol company, no evidence is placed on record by the prosecution. So far as provisions of the Copyright Act are concerned, Section 51 and 63 of the Act have been attributed against the accused persons.

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Section 51 of the Act speaks when copyright is infringed. In this case, there is no evidence placed on record by

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the prosecution that the principles of natural justice have been properly followed by the raiding party i.e. CW1. If really such products were found to be counterfeited, it is the duty of the raiding party to provide an opportunity to the accused to submit the same to the concerned competent government laboratory and ascertain as to whether the said product is really counterfeited one. No such opportunity was given to the accused. Simply on self-serving report as per Ex.P2 to Ex.P6, it is stated that the accused was found selling the said duplicate castrol company oil. Further, Section 63 of the Act speaks of Offence of infringement of copyright or other rights conferred by the Act. There is no evidence placed on record by the prosecution to show that really the accused was the distributor of Castrol oil from company and he has misused the said brand and was found selling the counterfeited oil. So in the absence of such evidence it cannot be said that, the prosecution is able to prove the guilt of the accused.

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On reading the oral and documentary evidence produced by the prosecution, the prosecution’s case suffers from material particulars. The material witness CW1 is not

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examined by the prosecution, who is main witness and who conducted the raid. In his absence, the whole story of the prosecution cannot be accepted as truthful one. There are more contradictions, omissions and discrepancies in the evidence of the witnesses. More so, the panchas have been turned hostile. The very seizure of the articles is not duly proved in accordance with law. The ingredients of the offences alleged against the accused are also not duly proved in accordance with law.

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The First Appellate Court while enhancing the sentence have not taken into consideration of all these lacunas in the case of the prosecution. So also, as stated above, the discrepancies, omissions and contradictions have not been properly appreciated by both the Courts below.

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It is true as rightly submitted by the counsel for the State that the scope and ambit of this Court in exercising the revision jurisdiction is limited. The Hon’ble Apex Court in the case of State of Maharashtra vs Jagmohan Singh Kuldip Singh Anand and others¹ and in the case of State Of

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1 (2004) 7 SCC 659

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Gujarat vs Afroz Mohammed Hasanfatta² , has held that under section 397 of Cr.P.C., the High Court does not sit as second appellate Court and should not re-appreciate the evidence unless the judgment of the Courts below suffer from perversity.

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In the light of the principles laid down in the aforesaid judgments and considering the scope and ambit of the revision, on examining the evidence placed on record by the prosecution, it shows that the Trial Court as well as the First Appellate Court have not taken into consideration aforesaid discrepancies in the evidence of the prosecution. The cross-examination of witnesses is sufficient to demonstrate that the very filing of complaint on 16.12.2004 is suspicious. Consistently, the official witnesses have stated that on 16.12.2004 raid was conducted and on the same day complaint was lodged. But the records reveal that complaint was lodged on 17.12.2004.

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It is important to note that the accused has not been examined in this case. The Court has to only consider the

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2 (2019) 20 SCC 539

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defence of the accused. The very defence of the accused is of total denial. That means the burden is on the prosecution to prove the case beyond all reasonable doubt. Under the Indian Criminal Jurisprudence, if a slightest doubt arises in the case of the prosecution, that benefit of doubt has to be extended to the accused. Therefore, in view of all these factual features and also the discrepancies, omissions and contradictions as noticed above, the Trial Court as well as the First Appellate Court have committed factual and legal error in coming to the conclusion that the accused has committed the offence in the manner stated by the prosecution. It is settled law that, if the Courts below failed to appreciate the evidence on record in a right perspective and if any perversity is found with regard to appreciation of evidence available on record and if glaring errors in appreciation of evidence and law by the Courts below are found, this Court can exercise its revisional jurisdiction and can very well interfere with the impugned judgments of the courts below. This is what is found in both the judgments of the Courts below. There are glaring errors in appreciation of evidence by both the courts below. There is no proper appreciation of law on the aspect.

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Having considered both the oral and documentary evidence and also the findings of the Trial Court as well as the First Appellate Court, it is a fit case to exercise revisional jurisdiction as the findings of both the Courts below is nothing but perversity. Hence, under the circumstances of the case, the judgment of conviction and order of sentence passed by the Trial Court and confirmed and enhanced by the Appellate Court require interference and by extending the benefit of doubt, the accused is entitled for acquittal. Resultantly, I pass the following:

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ORDER

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i) Both the criminal revision petitions filed by the petitioner-accused are hereby allowed.

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ii) The accused is acquitted of the charges punishable under 482, 486, 420 read with Section 511 of the IPC and Sections 51 and 63 of te Copyright Act, 1957.

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