The possession of spurious goods does not necessarily constitute the offence of cheating under Section 420 IPC.

JUDGMENT

(Prayer: Criminal Original Petition filed under Section 482 of Criminal Procedure Code, to call for the records in C.C.No.5225 of 2020 pending on the files of Metropolitan Magistrate for the exclusive trial of CCB Cases and CBCID Cases, Egmore, Chennai and quash the same.)

1. The petition is to quash the final report for the alleged offences under Section 63 of the Copyright Act, 1957 and Section 420 of the Indian Penal Code.

2. It is alleged in the final report that the petitioners were found in possession of counterfeit Adidas/Reebok ready-made Garments, Tags, Accessories and Labels; thus, they committed the aforesaid offences.

3. Mr. I.Abdul Basith, the learned counsel for the petitioners, would submit that the offence under Section 63 of the Copyright Act, 1957 is not made out on the allegation; that the Copyright is applicable only to the works mentioned in Section 13 of the Copyright Act, 1957; that it does not apply to the Garments and other products which are mentioned in the impugned final report; and that there is no complaint from any person or consumer that they have been cheated by the purchase of any of the goods sold by the petitioners, and in the absence of such an allegation, the offence under Section 420 IPC is not made out. He relied upon the Judgment of Madhya Pradesh High Court in Kasim Ali vs. the State of Madhya Pradesh dated 13.06.2016 in Misc. Criminal Case No.1362 of 2015 in support of his submission that in a similar case, the Madhya Pradesh High Court had held that neither Section 63 of the Copyright Act, 1957 nor Section 420 of the Indian Penal Code, 1860 is attracted.

4. Mr. A.Damodaran, the learned Additional Public Prosecutor, submitted that the mere fact that the petitioners were in possession of spurious branded items is enough to infer that the said goods were intended to deceive the public and gain wrongfully. The learned Additional Public Prosecutor relied upon the Judgment of Delhi High Court in Sunil Kumar Gupta and another vs. State reported in 1998 (47) DRJ 84 in support of his submission that mere possession of spurious goods is sufficient to attract the offence under Section 420 IPC.

5. Though notice was sent to the second respondent, it was returned with the endorsement that the second respondent left the place. Therefore, this Court instructed the learned Additional Public Prosecutor to direct the first respondent to inform the second respondent about the pending proceedings. Pursuant to the information given by the first respondent, the second respondent appeared before this Court on 10.04.2023 and sought time to engage a counsel. However, the second respondent had not engaged a counsel and had not appeared before this Court thereafter.

6. This Court, on perusal of the impugned final report, finds that the allegation against the petitioners is that they were in possession of duplicate Reebok/Adidas Bags, Caps and Belts. The said allegation would not attract the offence under Section 63 of the Copyright Act, 1957. Section 63 of the Copyright Act, 1957 reads as follows:

"63. Offence of infringement of copyright or other rights conferred by this Act - Any person knowingly infringes or abets the infringement of –

(a) the copyright in a work, or

(b) any other right conferred by this Act, [except the right conferred by section 534 – A],

[shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:

Provided that [where the infringement has not been made for gain in the course of trade or business] the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.

Explanation - Constructio