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2010 Supreme(AP) 122
THE HONBLE SRI JUSTICE P.S.NARAYANA
Naresh Singh Thakur s/o.Sankar Singh
Versus
The State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad
Criminal Petition No.1920 of 2003
Decided on: 23-2-2010
for petitioner: Sri C.Praveen Kumar
for respondent: Additional Public Prosecutor
Headnote:
Copy Right Act - Sections 63, 68-A , 51 – Criminal Procedure Code - Section 313 - Indian Evidence Act - Section 114 - evidence of these witnesses – Appeal against conviction - Criminal Revision Case is filed by unsuccessful accused in on file of Additional Metropolitan Sessions Judge - Petitioner accused was convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of for offence punishable under Section 63 of Copy Right Act of said Act in default of payment of said fine accused to undergo simple imprisonment for one month - accused also was further convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of for offence punishable under Section 68-A of Act - In default of payment of said fine accused shall undergo simple imprisonment for one month and above sentences were directed to run concurrently - Being aggrieved by same made by learned V Metropolitan Magistrate in accused had carried matter by way of appeal in on file of Court of Additional Metropolitan Sessions Judge and learned appellate Court confirmed findings of learned Metropolitan Magistrate aforesaid and dismissed Appeal - Aggrieved by same to present Criminal Revision Case had been preferred by petitioner accused – Held, It is no doubt true that landlord of premises had not been examined but however on material available on record evidence of PW and PW findings had been recorded by both courts below in detail - These are well considered findings recorded by both court of first instance and also appellate court on appreciation of evidence - relevant provisions of Act also had been taken into consideration by both courts below - Only question which had been argued in elaboration is in relation to PW having been declared hostile - In light of decisions relied on by learned Additional Public Prosecutor supra especially in light of convincing reasons recorded by both Courts below on appreciation of evidence of PW and PW as well findings recorded by both Courts below cannot be found fault - But however as already aforesaid relating to person running shop whether petitioner accused was actually running shop or his brother there appears to be some controversy - Be that as it may whether by virtue of such infringement any gain had been obtained by petitioner accused as such or not it being doubtful without expressing any further opinion this Court is inclined to modify sentence and reduce same for a period of one month - It is stated that already petitioner had undergone imprisonment for some period - It is needless to say that apart from sentence which had been already served rest of sentence to be served by petitioner - Criminal Revision Case is partly allowed
1. This Criminal Revision Case is filed by the unsuccessful accused in Crl.A.No.220/2002 on the file of Additional Metropolitan Sessions Judge, Hyderabad. The petitioner/accused was convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.50,000/- for the offence punishable under Section 63 of Copy Right Act (in short hereinafter referred to as "Act" for the purpose of convenience) r/w. 51 of the said Act, in default of payment of the said fine, the accused to undergo simple imprisonment for one month. The accused also was further convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.5000/- for the offence punishable under Section 68-A of the Act, in default of the payment of the said fine, the accused shall undergo simple imprisonment for one month and the above sentences were directed to run concurrently. Being aggrieved by the same, made by the learned V Metropolitan Magistrate, Hyderabad in C.C.No.615/2001, the accused had carried the matter by way of appeal in Crl.A.No.220/2002 on the file of the Court of Additional Metropolitan Sessions Judge, Hyderabad and the learned appellate Court confirmed the findings of the learned Metropolitan Magistrate aforesaid and dismissed the Appeal. Aggrieved by the same, to the present Criminal Revision Case had been preferred by the petitioner/accused.
2. While admitting the matter on 26-12-2003, this Court granted interim suspension of sentence in Crl.M.P.No.9002/2003 and also further directed the release of the accused on bail.
3. Sri C.Praveen Kumar, the learned Counsel representing the petitioner had taken this Court through Sections 63, 51 and 68-A of the Act and would maintain that the prosecution miserably failed to establish the ingredients of the said provisions. The learned Counsel also would maintain that the testimony of PW-1 and PW-2 being discrepant and further these witnesses being interested witnesses, on the strength of the evidence of these witnesses, the petitioner/accused could not have been convicted. The learned Counsel also would further maintain that PW-3 was declared hostile and in the absence of any acceptable evidence in this regard, it cannot be said that the prosecution was able to establish the seizure. When that being so, the findings recorded by the Courts below cannot be sustained. The learned Counsel also while further elaborating his submissions would maintain that there is absolutely no proof to show that the petitioner is the owner of the premises wherefrom M.Os.1 to 3 had been seized. Further, the learned Counsel also would maintain that PW-2 was not authorized by Indian Music Industry to conduct survey and detect variations and infringements. The learned Counsel also would maintain that the statement made during the examination under Section 313 Cr.P.C. cannot be used as against the petitioner/accused. At any rate, since the very nexus which ought to have been established by the prosecution had not been established, the findings recorded by both the Courts below being unsustainable, the Criminal Revision Case to be allowed by recording acquittal.
4. On the contrary, the learned Additional Public Prosecutor had taken this Court through the findings recorded by the learned Metropolitan Magistrate, Hyderabad in C.C.No.615/2001 and the learned Additional Metropolitan Sessions Judge, Hyderabad in Crl.A.No.220/2002 and would maintain that in the light of the concurrent and convincing findings which had been recorded by both the courts below, this is not a fit matter to be interfered with in a Revision. The learned Additional Public Prosecutor also would maintain that the evidence of PW-2 is clear and categorical and apart from the evidence of PW-2, the evidence of PW-1 and PW-4 also is available on record. The mere fact that PW-3 was declared hostile, that itself cannot be a ground to record acquittal for the reason that convincing reasons had been recorded by
