M.H. BEG, J. : The appellant Sheo Ratan Upadhya filed a complaint against the respondents, Gopal Chandra Nepali, Manager Sarvahitaishi Company, a publishing house of Varanasi, and Mahadeo Prasad, the proprietor of Deepak Press of Varanasi, for an alleged infringement of the copyright of a work called"Shri Mahabharat" in Nepali language which was written by the complainant's father, Pandit Narendra Nath Upadhya. The book was first published in 1929 through the sarvahitaishi Company during the life time of its author who died on 19th June 1950. The complainant, the eldest son of his father, does not seem to possess personal knowledge about the publication or sale of the book and states in his complaint that he was busy with his studies until recently. When he tools up the management of the affairs of the family. The complainant alleges that his father had told him that he had never sold the copyright of the abovementioned work, which is mere hearsay and an admission in his own favour.

2. The complaint was filed on 31-10-1961, eleven, years after the death of author, on the allegation that the complainant had gone to the market and found a number of copies of a work entitled"Mahabharat (Sampuran)" alleged to have been written by Krishna Prasad Regmi, who has not been prosecuted, and published by Sarvahitaishi Company, which had published the previous two editions under the name of the real author. It is alleged that the change of the name of the author and a very significant omission made of the two stanzas at the end of the book, where the name of the original author and his family history were given, the substitution of a"Vana Parva" (Chapter III) written by Regmi instead of the original"Vana Parva," and the oversight in failing to delete the prayer in"Adi Parva" (Chapter I) addressed to the"Panchdevas" where the names of the original author and his brother are mentioned as persons offering the prayer, proved that the publishers and the printers Knew very-well that there was a copyright in the original work. It was alleged that the original work was distorted, mutilated, and modified with an ulterior object. It is alleged that the rest of the abovementioned work with an alleged author, Krishna Prasad Regmi, was identical with the original work of Pandit Narendra Nath Upadhya. On these facts, the complainant appellant alleged that the respondents were liable to be punished for offences under Section 63 of the copyright Act, 1957.

3. The learned City Magistrate of Varanasi, who tried the case, came to the conclusion that the original work was published in the form alleged in the complaint, but he entertained some doubt on the question whether the accused persons had the necessary knowledge to constitute the mens rea which is required for the commission of an offence under Section 63 of Copyright Act. The learned Magistrate pointed out that the respondent accused Gopal Chandra is the adopted son of the original publisher Ragho Prasad, who died in 1938 when Gopal Chandra was only six years of age. After the death of Ragho Prasad, his widow, Srimati Moti Devi, carried on the publishing business until her death in 1949 when Gopal Chandra became the owner of the publishing house, at the age of about 17 years, in accordance with the will of the mother. The learned Magistrate was impressed by the explanation given by Gopal Chandra in the written statement filed by him, in which he stated that his mother had told him that the rights of publishing this book had vested in Sarvahitaishi Company and that the second edition of the book was published in 1948 under her orders as owner of the Copyright, and also that Mahabir Singh (D.W. 1) an old manager of this publishing house, had told him that the author, Pandit Narendra Upadhya, had sold his Copyright in the book for Rs. 600/- to Sarvahitaishi Company. The communication made by Mahabir Singh to Gopal Chandra was the evidence of Mahabir Singh (D.W. 1) himself supported by an entry in