Kulwant Singh Suri vs Sh.Harinder Singh

H.K. Sandhu, J.

Kulwant Singh has filed this petition under Section 482 of the Code of Criminal Procedure for quashing the complaint dated August 28, 1992, under Section 63 of the Copyright Act 1957 ("the Act" for short) and the summoning order dated August 14, 1993.

For appreciating the contentions raised in this petition, it is necessary to advert to the allegations made in the complaint against the petitioner by the respondent. The respondent, Shri Harinder Singh, a retired District Education Officer, alleged that he had served in many Government Educational Institution and had knowledge in Science subject. He wrote one book titled "Awaz Jagat" (an elementary book on sound in Physics) in Gurmukhi script and got it published from M/s. University Publishers, Railway Road, Jalandhar City, in the year 1976. This book acquired a great goodwill amongst the Students, School, Colleges, Universities and other Educational Institutions and was considered to be the original work of creation of the complainant. By extensive and uninterrupted use of literary work of ''Awaz Jagat'' he became its true and lawful owner under Section 17 of the Act and thus gained the property rights to the exclusive use of the copyright, one Professor, Harinder Singh, illegally, dishonestly and fraudulently for the purpose of acquiring wrongful gain and also taking undue advantage of the similarity of his name with that of the complainant, got published the same book from Shri Kulwant Singh Suri of M/s. Lok Sahitya Parkashan, 186 Green Avenue, Amritsar, and printed from M/s. B.D. Printers, Killa, Mohalla, Hoshiarpur Adda, Jalandhar City. This book was having the same script and same number of pages. There was absolutely no difference in the two books except that the petitioner changed title of the book to "Awaz Kiwen Paida Hundi Hai." It was displayed on the same counters of Book Shops, Publishers, Schools, Colleges, Universities etc., where the book of the complainant was displayed . In this way the petitioner damaged the goodwill and reputation of the complainant/respondent and deceived the general public and thus committed offences under Section 420 of the Indian Penal Code and Section 63 of the Copyright Act.

After preliminary evidence was recorded, the Judicial Magistrate 1st Class, Amritsar, found that there were sufficient grounds to proceed against Harinder Singh and Kulwant Singh accused under Section 63 of the Act, as amended, and summoned them to stand trial.

The petitioner averred in the petition that he had not committed any offence and in fact the respondent had approached him in the year 1990 and asked him to publish his book on Science subject meant for primary classes, titled as "Awaz Kiwen Paida Hundi Hai" and he agreed. He paid Rs. 1,000/ to the respondent and further agreed to incur all the expenses of publication. He was to give fifty copies of the book free of cost to the respondent and was responsible for sale of the books. After recovering total amount spent by him on publication of the book, he was to pay 10 per cent of the profits to the respondent. He incurred about Rs. 65,000/ on the publication of the books and went from pillar to post in order to arrange for sale of the books. With all his efforts, he sold books worth Rs. 66,000/ and did not earn any profit. The respondent started demanding Rs. 10,000/ from him in cash and 300 copies of the book free of cost. He threatened the respondent with dire consequences in case he failed to fulfil his demand. He further contended that he was not liable for infringement of copyright in the book, nor any prima facie case was made out against him on the basis of the allegations levelled in the complaint, as there were no averments that he had knowingly infringed the copyright in the book ''Awaz Jagat''. Moreover copyright in the book was not registered with the Registrar of copyrights, as required under Section 25 of the Act.

In the return filed by the respondent, it was denied that he ever approached the petitioner and asked him to publish his book on Science, titled as ''Awaz Kiwen Paida Hundi Hai'' or he was paid Rs. 1,000/ on 15th October, 1991. In fact, the book was published by the petitioner in an unauthorised way, after changing name of the author and title of the book. The book was published by the petitioner under the name of Professor Harinder Singh, M.Sc., but he himself had never worked as a Professor, nor he possessed the qualification of M.Sc. He was M.Ed., B.Sc., B.T., and joined service as a Master and was subsequently promoted as Headmaster and then Deputy District Education Officer. He never demanded 300 copies of the book free of cost from the petitioner. It was further maintained that whenever a book was published, a contract was executed in writing, but the complainant had not produced any such contract. It was further contended that nonregistration of the copyright did not debar the owner of the copyright from bringing an action, against an accused for infringement of copyright.

I have heard counsel for the parties.

The allegation made in the complaint is that in the year 1976 a book titled as ''Awaz Jagat'' was written by the respondent and it was got published. This book had acquired a goodwill amongst the students and educational institutions, but later on by changing title of the book and name of the author, the petitioner got the same published. It was contended on behalf of the petitioner that in fact the book titled ''Awaz Kiwen Paida Hundi Hai'' was published by the petitioner at the instance of the respondent and the petitioner was not aware that earlier this very book had been published by some other publishing house. Moreover copyright in this book was neither registered with the Registrar of Copyright, nor there were assertions in the complaint that there was any infringement of the copyright by the petitioner knowingly. In support of his contention, learned counsel placed reliance on Sheo Rattan Upadhya v. Gopal Chandra Nepali and another, AIR 1965 Allahabad 274. In this case there was allegation that some person, other than the publisher, had substituted some name, for that of the original author and had introduced certain alterations, still it was held that the publishers were not shown to have knowingly violated any right under the Copyright Act. It was further observed :

"Where a person knowingly publishes and prints a work in which another person has a copyright, the ingredients of mens rea required by Section 63 are not satisfied. The words ''knowingly infringes'' the Copyright Act has to be distinguished from knowingly publishing or printing of a work in which there is a copyright."

It was further urged that in the complaint Annexure P/1, it was nowhere alleged that the petitioner had knowingly infringed or abated the infringement of the copyright in the book. So the ingredients of the offence under Section 63 of the Act were not spelled out and the complaint was liable to be quashed. I find that the contentions of the learned counsel are without merit. It cannot be denied that an author acquires a copyright in his work regardless of registration and nonregistration thereof does not debar the owner of a copyright from bringing an infringement action. Registration is not a pre requisite for acquisition of copyright and a complaint is not liable to be quashed only on the ground that copyright was not registered.

It is correct that under Section 63 of the Act only that person is liable to punishment, who ''knowingly infringes'' or abets the infringement of a copyright in the book. In other words, the accused must be shown to have knowingly violated any right conferred by the Act. But this burden of proof can be discharged by direct or circumstantial evidence. In the instant case, the respondent who is author of the book titled as ''Awaz Jagat'' got this book published in the year 1976. The same book was published by the petitioner under the title ''Awaz Kiwen Paida Hundi Hai.'' It is not his plea that he was not aware of copyright of the respondent in this book when he published the book and infringement, if any, was made unknowingly. Rather his plea is that it was the respondent, who approached him and asked to publish his book. This matter is to be determined by the trial Court after evidence is led.

The question whether the petitioner knowingly infringed copyright in the work of the respondent, is also to be determined on the basis of direct or circumstantial evidence and the complaint cannot be quashed at this stage simply on the ground that there were no specific averments, therein that the petitioner ''knowingly infringed'' the copyright of the book of the respondent. The allegations, as made in the complaint, prima facie reveals the commission of an offence under the Act. Meticulous analysis of the case, to find out, if it would end in conviction is not required at this stage. The averments made in the complaint read as a whole constitute the offence of which cognizance has been taken by the trial Court. There is no material on record to show that the complaint is mala fide or vexatious. There is thus no justification to quash the same to interfere with the summoning order.

For the reasons recorded above, I find no merit in this petition and dismiss the same.