In Re: S. Agarwal

Singaravelu, J.—This is a revision u/s 401 of Code of Criminal Procedure, filed by the accused against his conviction u/s 63 of the Copyright Act in C.C. No. 25276 of 1977 on the file of the X Metropolitan Magistrate, Egmore and the sentence of fine of Rs. 1,000 which conviction and sentence were confirmed in C.A. 368 of 1979 on the file of the VII Additional Sessions Judge, Madras.

The facts are briefly as follows:- The matter arose out of a private complaint preferred by the Gramaphone Company of India (for short the ''''Company") alleging that the Petitioner (accused) has infringed the copyright of the Company by recording songs in three films in Cassette tapes and selling the same without the permission of the Company. The prosecution case was that the Petitioner re-produced the songs in cassettes and sold 89 cassettes (M.O. 1 series) thereby committing an offence u/s 63 of the Copyright Act, 1957 (Act 14 of 1957). The Petitioner (accused) pleaded not guilty and contended that the ingredients of the offence have not been made out. The learned Magistrate recorded and found that the Petitioner had infringed the copyright by re-producing the songs in cassettes and therefore, guilty u/s 63 of the Copyright Act. Accordingly, the Petitioner was convicted under the said section and sentenced to pay a fine of Rs. 1,000. On appeal, the learned Sessions Judge confirmed the conviction and sentence and dismissed the appeal. Hence this revision.

I have heard learned Counsel for both sides and perused the evidence on record and I am satisfied that the conviction is not sustainable on the evidence. My reasons are as follows: Section 63 of the Copyright Act, 1957 runs as follows:

''63. Any person who knowingly infringes or abets the infringement of-

(a) the copyright in a work, or

(b) any other right conferred by this Act, shall be punishable with imprisonment which may extend to one year, or with fine, or with both.

To convict a person under this section, "knowledge" must be proved about the infringement of the copyright. Of course the proof may be direct or indirect. In other words, the infringement canal so be proved by circumstantial evidence and mere possession of some tapes re-producing the film songs is not an offence. The prosecution must go further and prove that the Petitioner (accused) re-produced the songs in cassettes. There is no evidence that he re-produced the songs though he was in possession of some cassettes. Therefore, what the prosecution has proved in this case is that the Petitioner was in possession of 89 cassettes containing the film songs. This is not sufficient in law to hold him liable u/s 63 of the Copyright Act.

P.W. 3 who is the main witness in this case and who is the detective Inspector of Police who conducted the laid and seized the articles, has admitted that he had not seen any other cassettes of these three films apart from the cassettes seized. He also admitted that there was no tape-recorder or any taping machine in the premises of the Petitioner. P.W. 1, who is the Security Officer of the company and, who is said to have laid a trap for the purchase of these cassettes, had admitted in cross examination that be never saw the accused recording the songs of the three films. P.W. 2, the Recording Officer of Saraswathi Stores, who entered into an agreement on behalf of the company with the film producers in respect of recording of the songs in respect of the three films, in question has also contended that he does not know if the accused had knowledge of the Copyright nor has the witness seen the accused recording the songs. He admitted that he came to know of this reproduction only from the ''market.'' No gramaphone disc was seized from the accused. He did not also see any gramaphone or record in the place where the cassettes were seized. The witness further admitted that they were recorded in some other places. Therefore, the prosecution has not connected the Petitioner with the re-production of the songs from the disc of the company.

Section 51 of the Copyright Act describes what is infringement. Even in the complaint, it is merely pleaded that the company learnt that the Petitioner was unlawfully copying and transferring such recorded music in cassette tapes. There is no definite allegation about the "knowledge" contemplated u/s 63 of the Act. The complainant itself has no personal knowledge about the alleged infringement. The lower Courts relied upon Ex. P. 1, which is a receipt issued by the Petitioner herein with the following recitals:

Received with thanks from Mr. Earnest Philips sum of Rs. 300 (Rupees three hundred only) as an advance for the supply of cassettes (100 Nos.)

It does not show whether the order was for recorded cassettes from these three film songs. It was just a vague order for supply of 100 numbers of cassettes and a sum of Rs. 300 was received as advance as per Ex. P1.

The Security Officer of the Company (P.W. 2) has merely done a test purchase and he is a trap witness, so to say. I have already found that Ex. P1 is not helpful to the prosecution since there is no reference to any recorded cassettes. Therefore, corroboration is necessary for the evidence of P.W. 2 and it is wholly lacking in this case. The prosecution has not revealed the source from which it came to know about the alleged infringement. In other words, the informant of the Company has not been disclosed either in the complaint or in the trial. The case of the Petitioner was that he never infringed the copyright and therefore, the prosecution must have gone further and established that he not only infringed the copyright but also had knowledge of the infringement of the copyright. Shortly stated, there is no acceptable evidence to prove that the accused had infringed the copyright, let alone knowledge of infringement, which is very necessary for an offence u/s 63 of the Copyright Act.

The other circumstance casting doubt in the case of the complainant is that not even a notice was issued to the Petitioner by the complainant warning the Petitioner about the alleged infringement of copyright. No independent witness has been examined either for the seizure or for the alleged re-production of the film songs. It is also pointed out on behalf of the Petitioner that when the police officer (P.W. 3) seized these cassettes, he neither packed them nor sealed them and they have not been produced before the Court on the same day. Learned Counsel for the Petitioner argued that the recording of the songs could have been done by a third party before the material objects were produced into Chart. This argument cannot be brushed aside when we see the admission of P.W. 2, to the effect that the Petitioner is doing competitive business with M/s. Saraswathi Stores, which are the distributors of the Company. All these deficiencies in the prosecution case have been ignored by both the Courts below and. in my opinion, this is a case wherein the benefit of doubt must be given to the Petitioner (accused) especially in an offence u/s 63 of the Copyright Act which requires ''knowledge''. It is worth repeating that mere possession of cassettes from film, songs is not an offence,

In these circumstances, the Petitioner (accused) is given the benefit of doubt, especially when there is no evidence regarding the re-production of the songs and also knowledge. Accordingly, this revision is allowed, the conviction and sentence against the Petitioner accused Imposed by the Courts below are set aside and the fine amount, if paid, will be refunded to the Petitioner.