ORDER
M. Jeyapaul, J.
Page 1536
1. The petitioners in Crl.O.P. No. 21983 of 2004 are the accused 2 to 5 and the petitioner in Crl.O.P. No. 15159 of 2004 is the sixth accused in C.C. No. 295 of 2004 on the file of the learned VIII Metropolitan Magistrate, George Town, Chennai, launched as against them for the offences under Sections 406 and 417 of the Indian Penal Code and Section 63 of the Copyright Act, 1957.
2. The averment in brief as found in the private complaint filed by the complainant Mr. Durairajan, General Manager of M/s. Maya Appliances Pvt Ltd., under Section 200 of the Code of Criminal Procedure is as follows:-
The complainant-company is engaged in the business of manufacturing, marketing and after sale services in the range of kitchen appliances including mixer grinders under the popular brand name of ‘PREETHI’. All the products of the complainant-company meet international quality and safety standards certified by various international certifying bodies. The products of the complainant-company are being exported to various countries.
Page 1537
3. The first accused representing the 8th accused as the Managing Director and the 9th accused as Proprietor, approached the complainant-company in the first week of August 2002 with an intention of obtaining orders to produce jars that are required for the manufacture of various models of ‘Preethi Mixer Grinders’ of the complainant-company. The complainant-company handed over samples and drawings of the stainless steel jars along with the technical specifications required for the manufacture of Jars on 24.8.2002. The first accused representing 8th and 9th accused agreed to produce and supply 3000 numbers of jars in two varieties respectively. But the accused delayed the supply of stainless steel jars till 29.4.2003. They supplied only a total number of 3350 jars to the complainant-company, out of which 1104 jars were rejected due to non-conformity on the basis of the quality control inspection carried out by the complainant-company. Even as on 25.7.2003, the complainant-company sent certain drawings for reference vide letter dated 26.7.2003 to the accused, as there was no clarity regarding the production of certain jars by the accused.
4. The accused 2 to 4 are the Directors of the 7th accused and accused 5 and 6 are the Directors of the 8th accused. Since the first accused misrepresented and deceitfully obtained sample jars, drawings and technical specifications which are the exclusive properties of the complainant-company, the first accused in his capacity as the Proprietor of the 9th accused and also as Managing Director of the 8th accused along with the accused 2 to 6 who are involved in the day today affairs of the accused 7 and 8 are liable to be punished. The first accused had been dealing with the complainant-company deceptively in the guise of manufacturing stainless steel jars to meet the requirement of the complainant-company. They had no intention to continue the production of the stainless steel jars. On the other hand, they had mala fide intention of manufacturing duplicate and dubious products that are deceptively similar to those of the complainant-company and copied the contents and user manual of the complainant’s product. After getting technical specifications, drawings and other details from the complainant’s company, the accused took conscious efforts in duplicating and manufacturing defectively similar products. The first accused was entrusted with the technical drawings and specifications and sample of the jars with the complainant-company. They have converted the property of the complainant-company to their own use against the terms of the contract and in total breach of trust imposed on them by the complainant-company.
5. The complainant-company also purchased the product of the accused from M/s. Real Steel Centre and came to know the infringement of copyrights which is punishable under Section 63 r/w Section 69 of the Copyright Act, 1957. The instruction manual printed and published by the complainant-company have been verbatim copied in the catalogue printed and published by the accused-company. The entire transaction had taken place in the City of Chennai and the duplicate product floated by the accused company was purchased in the City of Chennai. Therefore, the petitioners have not only committed criminal breach of trust, but also committed cheating and infringed the copyrights punishable under Sections 406 and 417 of the Indian Penal Code and Section 63 r/w Section 69 of the Copyright Act, 1957.
Page 1538
6. The learned VIII Metropolitan Magistrate, George Town, Chennai, having recorded the sworn statement of the complainant in the back ground of the complaint filed by them, took the case on file for the aforesaid offences.
7. The petitioners in Crl.O.P. No. 21983 of 2004 have contended in the petition seeking quashment that there was no entrustment of the products to the 7th accused and its Directors. There had been no dishonest intention at the very inception which is the basic requirement for attracting the penal provision under Section 417 of the Indian Penal Code. There is no averment to show that the user manual was registered with the Registrar of Copyrights. Therefore, the petitioners in Crl.O.P. No. 21983 of 2004 seek for quashment of the criminal proceedings in C.C. No. 295 of 2004.
8. The petitioner in Crl.O.P. No. 15159 of 2004 has contended that he is no longer the Director of M/s. Stove Kraft Pvt. Ltd., the 6th accused in this case as on August 2002. He had resigned from the company as early as in the year 2000 itself. Therefore no criminal liability can be fastened on the sixth accused.
9. Learned counsel for the petitioners in both the criminal original petitions would submit that 7th accused M/s. Pigeon Appliances Pvt Ltd., was incorporated only on 5.5.2003 and therefore the accused 2 to 4 who are the Directors of the said company cannot be fastened with any criminal liability. The entrustment of the property of the company had allegedly taken place in the month of August 2002 itself. It is his submission that the text of the complaint would show that there was no violation of copyright at all. The copy right had not been registered, it is further submitted. The complainant-company had not spoken to about the ownership of their copyrights. He would further contend that there was no cause of action to file a complaint before the Court at Chennai, as the occurrence had allegedly taken place at Bangalore. The last contention made by the learned Counsel for the petitioners is that as the 6th accused had resigned from the company in the year 2000 itself, no criminal liability can be fastened on the 6th accused for the dealings of the first accused in the year 2002.
10. Learned counsel for the respondent would submit that the first accused got entrustment of the properties of the defacto complainant with a view to float a company of his own only for the purpose of cheating the complainant. It is his further submission that there had been entrustment of the drawings of the defacto complainant in the year 2003 also. Therefore the petitioners cannot contend that there was no entrustment after the incorporation of M/s. Pigeon Appliances Pvt Ltd.
11. The technical drawing, specifications and user manual of the complainant-company, have been misused by the accused for the purpose of duplicating the products of the defacto complainant and therefore copy rights violation is prima facie made out in the complaint. It is his submission that there is no need to register the copyrights before launching criminal prosecution or filing civil suit. He would contend that the whole transaction has taken place only in the City of Chennai, except the production of the duplicate products by the accused company and that therefore, the Court at Chennai has jurisdiction to deal with the case. The petitioners in Crl.O.P. Page 1539 No. 15159 of 2004 has come out with two Form-32 and therefore the said documents will have to be tested before the trial Court.
12. Of course, the first accused had entered into an agreement with the defacto complainant in the first week of August 2002. But it is found that there is a specific reference in the complaint that the complainant-company sent certain drawings for reference vide letter dated 26.7.2003 to the accused. Further, it is the consistent case of the complainant that with a view to cheat the defacto complainant, the technical drawings, specifications and the user manuals, the exclusive property of the complainant-company were obtained by the accused. The first accused had allegedly started the company, subsequent to the entrustment of the property of the complainant-company in order to manufacture duplicate products. The entrustment had been misused by forming a company called M/s. Pigeon Appliances Pvt Ltd., it has been alleged and therefore the accused 2 to 4 cannot validly contend at this stage that there was no allegation of entrustment to them as they had become the Directors of the company only on 5.5.2003 when M/s. Pigeon Appliances Pvt Ltd., was incorporated.
13. Infringement of Copyright is punishable under Section 63 of the Copyright Act, 1957. Right to artistic work also come under the copy right as per Section 13 of the Copyright Act, 1957. Section 2(c) defines artistic work to mean a drawing also (including a diagram, map, chart or plan). The allegation in the complaint is that the technical drawings, specifications and user manual of the complainant-company were entrusted and the same were misused by the accused company for the purpose of duplicating the products of the complainant company. Therefore, there is a specific allegation in the complaint that there is violation of copy rights also.
14. It has been held in the authorities in Mishra Bandhu Karyalaya v. S. Koshal , in Brundaban Sahu v. B. Rajendra Subudhi and Microfibres, Inc. v. Girdhar and Co. and Ors. 2006 (32) PTC 157 that the copy rights shall be registered with the Registrar of Copyrights before invoking the criminal or civil jurisdiction by the Proprietor of copyrights.
15. It has been observed in the authorities in Nav Sahitya Prakash v. Anand Kumar and Lamba Brothers Pvt. Ltd. v. Lamba Brothers and Zahir Ahmed v. Azam Khan 1996 Crl.L.J. 290 that prosecution for infringement of copy right does not require as a pre-condition registration of the copyright.
16. This Court in M/s. Manojah Cine Productions v. A. Sundaresan and Anr. AIR 1976 Madras 22 has authoritatively held that the registration is not a condition precedent for acquiring copyright and that non-registration of the Page 1540 copy right does not bar a suit. In view of the judgment of this Court and in the light of the aforesaid judgments in favour of the defacto complainant, the Court holds that registration of copyright is not a pre-condition for laying a suit or for prosecuting the violation of copyrights.
17. The complainant has in no uncertain terms detailed in the complaint that the technical drawings, specifications and user manuals are their exclusive property. It is not as if the ownership of the copyright was not claimed in the petition. As rightly pointed out by the learned Counsel for the complainant, except the alleged production of duplicate mixer jar, all other cause of action had arisen only in the City of Chennai. Only in the City of Chennai the contract had been entered into between the parties, the finished products had been supplied to the complainant and the alleged duplicate product floated by the accused was procured. Therefore, the City Court has jurisdiction to deal with the criminal prosecution launched by the defacto complainant.
18. The petitioner in Crl.O.P. No. 15159 of 2004 has filed Form-32 to establish that he had resigned from M/s. Stove Kraft Pvt Ltd as on 30.10.2000 and the same was registered by the Registrar of Companies on 7.11.2000.
19. Though another copy of Form-32 was filed by the petitioner, it contains only the very same particulars found in the certified extract produced by the petitioner during the course of arguments before this Court.
20. As the petitioner had resigned long before the transaction was clinched in the second week of August 2002, the petitioner cannot be directed to face the trial. The respondent without verifying the association of the petitioner with M/s. Stove Kraft Pvt Ltd arraigned him as the sixth accused in C.C. No. 295 of 2004. Therefore the criminal proceedings as against the sixth accused in C.C. No. 295 of 2004 will have to be quashed.
21. As there is sufficient allegation as against the petitioners in Crl.O.P. No. 21983 of 2004, the petitioners therein will have to necessarily face the trial. Their plea to relieve them from the criminal proceedings cannot be entertained.
22. In the result, the criminal proceedings as against the petitioner viz., Satish Chandra Karanath/sixth accused in C.C. No. 295 of 2004 stands quashed and the Crl.O.P. No. 15159 of 2004 stands allowed. Consequently, connected criminal miscellaneous petitions stand closed. Crl.O.P. No. 21983 of 2004 stands dismissed. Consequently, connected criminal miscellaneous petitions also stand dismissed.