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1998 Supreme(Del) 599
High Court Of Delhi
SUNIL KUMAR GUPTA - Appellant
Versus
STATE OF DELHI - Respondent
Decided On : 08/13/1998
Headnote:Criminal Procedure Code, 1973 - Section 482 — Delay in trial — Economic offence — Allegation of putting a counterfeit mark on an article for deceiving the people — It falls within the purview of economic offences — Accused not entitled for quashing of proceedings on account of delay in trial.
Copyright Act, 1957 - Section 63 &13 — Prosecution — Delay — Quashing of proceedings sought on the ground that the trial did not commence even after five years of taking of cognizance — Allegation of cheating the public at large also made against the accused persons — The offence also falling within the category of economic offence — The proceedings cannot be quashed — Penal Code, 1860 — Section 415.
Held :
In the present case the complianant is the proprietor/owner of two registered copyright having particular design, used by them in connection with their products, industrial or commercial. Their products sold with the design of their copyright would acquire commercial reputation about its quality and. source of its manufacturer or supplier to the public at large.
The petitioner and for that purpose any other trader who has copied the copyright would be deriving monetary benefit for himself at the cost of the author of the copyright who has spent, money, labour and skill to make this products a marketable commodity.
The intention of the petitioner apparently is to derive economic benefit to himself and at the same lime he is making a false representation about the source or origin of the product and thereby is deceiving the public a large who may buy his product by using the infringing design of the copyright of the complainant. This necessarily will result in wrongful gain to him and wrongful loss to the complainant and amounts to cheating. Case of cheating is an excepted category contemplated in para 4 of the Supreme Court judgment in Common Cause v. Union of India.
It may also be an economic offence. When a manufacturer or trader infringes the copyright or design of someone else he does so to pass off spurious goods or goods of inferior quality as the goods of superior quality of the latter. This piracy if allowed will adversely affect the trade, commerce and industrial production of the country and thereby will adversely affect the economy and the revenue of the State. This would thus also fall in the category of economic offence. Economic offences are also excepted under para 4 of the aforesaid judgment.
( 1 ) BY this petition under Section 482 of the Code of Criminal Procedure (for short the Code) the petitioner seeks quashing of order dated 5. 10. 1996 passed by the learned Additional Chief Metropolitan Magistrate (ACMM) dismissing his plea to discharge him in pursuance of the directions of the Hon ble Supreme Court in the case of Common Cause Vs. Union of India and Others-II (1996) CCR (SC) 180 on account of delay caused in trial.
( 2 ) A complaint was filed by the respondent Jay Engineering Works Ltd. (for short the Complainant) to the effect that they were the registered owners/proprietors of the Copyright of two artistic works of "usha" registered in their favour on 24. 3. 1970 and 13. 9. 1979 under the Copyright Act (for short "the Act") and thus had the exclusive right to reproduce the said artistic works in any material form. They found that the petitioners were manufacturing/selling electric churners (madhani) illegally using the logo "usha" in the same artistic manner in which it was registered in the name of the complainant and the petitioner had thereby committed the criminal offence punishable under Section 63 of the Act and under Section 468 of the Indian Penal Code. On the basis of that complaint, FIR No. 330/89 was registered at Police Station Kotwali and in due course a report under Section 173 of the Code was submitted against the petitioners. Initially a learned Metropolitan Magistrate took cognizance of the case under Section 63 of the Act on 30. 3. 1991 and summoned the accused persons for 28. 6. 1991. However the offence was punishable with fine which was beyond his jurisdiction and the case was withdrawn by the learned Chief Metropolitan Magistrate and was assigned to the court of A. C. M. M. The petitioner appeared in that court on 1. 7. 1991. Since then the case has been adjourned from time to time and even charge has not been framed. The case was fixed for arguments on charge on 2. 9. 1996 when an objection was taken on behalf of the petitioners that the case was covered by the aforesaid judgment of the Hon ble Court in the case of Common Cause (supra) and he was entitled to be discharged as even trial has not commenced after 5 years. The learned A. C. M. M. vide his order dated 5. 10. 1996 came to the conclusion that this case was not covered by the aforesaid judgment of the Supreme Court and rejected that plea. The petitioner being aggrieved against that order has filed the present petition.
( 3 ) I have heard learned counsel for the parties. Learned counsel for the petitioner has contended that the case is squarely covered by the aforesaid decision of the Hon ble Supreme Court inasmuch as the offence was punishable with imprisonment for 3 years and fine; that the delay was not for any cause attributable to the petitioner and since charge has not been framed the learned trial court acted illegally in not discharging the petitioner. He also contends that it is not a case falling in the category of "cheating" or of an "economic offence", inasmuch as the essential ingredient of inducement in a charge of cheating is not there and also this offence has no effect on the economy of the State.
( 4 ) WHEREAS learned counsel for the State has contended that this case falls in the category of the offence of cheating because the petitioner has copied the copyright of another person with a view to make wrongful gain for himself and wrongful loss to the proprietor of the copyright and also thereby making a misrepresentation to the ultimate consumer that the goods are manufactured by the same person who is the owner of the registered copyright. The word cheating contemplated in the Common Cause case (supra) is used in wider term and would include this offence as well. It is also contended that substantial part of delay caused before the trial court is because of usual dilatory tactics adopted by the petitioner and there is no illegality or infirmity in the order passed by the learned trial court an
