IMPORTANT POINT
Copyright subsists in the work, not title.

JUDGMENT

S. A. BOBDE, J.

These two Criminal Appeals are preferred by the accused against the judgment and order dated 22.3.2012 in Criminal Misc. Application No. 1295 of 2011 and 1296 of 2011 passed by the learned Single Judge of the Bombay High Court refusing to quash the complaint and the process issued under Section 63 of the Copyright Act, 1957 (hereinafter referred as “the Copyright Act”) read with Sections 406 and 420 of the Indian Penal Code, 1860 (hereinafter referred as “IPC”).

2. The respondent No. 1-Shyam Vithalrao Devkatta, filed a complaint being Criminal Case No. SW/332 of 2011 under Section 63 of the Copyright Act, later amended to add additional charges under Sections 406 and 420 read with Section 34 of the IPC, against five persons. Upon due verification process was issued by the learned Metropolitan Magistrate against all except the fifth accused. Of these accused, four approached the Bombay High Court by way of filing two criminal misc. applications, under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C”) for quashing the complaint. The High Court having refused to quash the complaint, the appellants have approached this Court.

3. The complainant/Respondent No.1 claims copyright in a synopsis of a story written by him with the title “Desi Boys”. According to him, he had written a story with the title “Desi Boys” and had got the synopsis of the story registered with the Film Writers Association on 25.11.2008, when a friend, one Ramesh Bhatnagar, told him that a comedy film story is required by the son of a film Director, David Dhawan, he mailed the concept of the story in the form of a synopsis as an attachment to an email addressed to Ramesh Bhatnagar on 14.10.2009 with the words “Dear Friend, just see the attachment.” Ramesh Bhatnagar forwarded the story, calling it “just an idea” by email to one Ahsan Sagar on 15.10.2009. What was forwarded was apparently the same short synopsis of the concept with the title “Desi Boys”. A copy on the record makes it clear that it was by no means the entire story with all the dialogues and the screen play. Having done so, his friend Ramesh Bhatnagar did not receive any reply but, suddenly the complainant saw the promos of a film bearing the title “Desi Boys”, actually spelt as “Desi Boyz”. According to him, the adoption of the title “Desi Boyz” is a clear infringement of the copyright in the film title “Desi Boys”. Admittedly, he has not seen the film and he states in his complaint, he cannot say whether a part of the story of the film written by him has also been infringed.

4. In the meanwhile, the appellants released their film with the title “Desi Boyz” throughout the world including India on 25.11.2011. According to them, the film is based on a story written by one Milap Zaveri, who wrote the story under an agreement dated 02.09.2009, for which they have paid the author by cheque. The shooting of the film commenced on 07.11.2010 and the respondent No. 1 came to know about the film sometime on 12.10.2011. The details of the defence are not dealt with here since the matter must be decided on the basis of the tenability of the complaint.

5. The Court of Learned Metropolitan Magistrate having taken cognizance, as stated above the appellants approached the Bombay High Court under Section 482 of the Cr.P.C for quashing the complaint and process issued under Section 63 of the Copyright Act read with Sections 406 and 420 of IPC. The learned Single Judge who heard the matter as a part of a batch of matters in which parties had challenged the order issuing process against them in several different cases, dismissed the applications. In paragraph 97 of the judgment, the High Court considered the appellants case and merely pointed out that according to the appellants, the story which they had converted into a film was written by an author to whom they had paid a certain amount under an agreement even before the complaint of the respondent No.