Calcutta High Court (Appellete Side)
Mr. Tapesh Pal vs The State Of West Bengal & Another on 12 March, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 2057 of 2021
Mr. Tapesh Pal
Versus
The State of West Bengal & Another
For the Petitioner : Mr. Tapan Dutta Gupta, Adv.
Mr. Parvej Anam, Adv.
Ms. Puspa Rani Jaiswara, Adv.
For the Opposite Party No. 2 : Mr. Dipankar Majumdar, Adv.
Ms. Diya Mal, Adv.
For the State : Mrs. Purnima Ghosh, Adv.
Heard on : 03.01.2025
Judgment on : 12.03.2025
2
Ajay Kumar Gupta, J:
1.
By filing this Criminal Revisional application under Section
482 of the Code of Criminal Procedure, 1973, the petitioner seeks for
quashing of the proceeding being G.R. No. 1069 of 2019 arising out of
Amherst Street Police Station Case No. 311 dated 11.11.2019 under
Sections 420/120B of the Indian Penal Code, 1860 read with Section
63 of the Copyright Act and the Charge Sheet being Charge Sheet No.
310 of 2019 dated 18.12.2019 filed under Section 63 of the Copyright
Act.
2. The essential facts of the present case are relevant for the
purpose of fair and proper disposal of this case are as under: –
2a. One Aman Preet, son of Sri Gurgindar Singh claiming
himself to be the authorised person of M/s. Sanspareils Greenlands
Pvt. Ltd. and M/s. Freewill Pvt. Ltd., lodged a written complaint with
the Deputy Commissioner of Police, Enforcement Branch, Kolkata on
11.11.2019. He alleged, inter alia, that some retailers/whole sellers
were deliberately selling duplicate and infringing sports goods of “SG”
& “Nivia” brands, which are owned by the aforesaid two companies,
thereby violating the provision of Copyright Act and causing wrongful
gain to them and wrongful loss to the aforesaid two companies.
3
2b. On the basis of said written complaint, an FIR was registered
being Amherst Street Police Station Case No. 311 dated 11.11.2019
under Sections 420/120B of the Indian Penal Code, 1860 read with
Section 63 of the Copyright Act against unknown accused persons
and initiated investigation.
2c. After culmination of the investigation, the Investigating
Agency submitted a charge sheet being Charge Sheet No. 310 of 2019
dated 18.12.2019 under Section 63 of the Copyright Act against the
Petitioner before the Learned Additional Chief Metropolitan
Magistrate, 2nd Court at Calcutta.
2d. Upon receiving the charge sheet, the Learned Magistrate
took cognizance for alleged commission of offence punishable under
Section 63 of the Copyright Act. Though, the petitioner claims that
the complaint is not at all maintainable against the petitioner as he
was not the owner of the shop, where some alleged products were
recovered and seized. Hence, this Criminal Revisional application.
3. Both the parties have filed their written notes of arguments
in support of their case.
4
SUBMISSION ON BEHALF OF THE PETITIONER:
4. Learned counsel, Mr. Gupta appearing on behalf of the
petitioner prays for quashing of the proceeding on four grounds as
under: –
4a. Firstly, the petitioner/accused was not the proprietor/shop
owner from where the alleged recovery was made at the material time,
as such, the proceeding, initiated against the petitioner, is a sheer
abuse of process of law.
4b. Secondly, M/s Brand Protectors India Pvt. Ltd. having its
registered office at 122, Sector – 15, Part – 1, Gurgaon – 122001,
Haryana was authorised by M/s Sanspareils Greenlands Pvt. Ltd.
and M/s Freewill Sports Pvt. Ltd. to conduct market surveys,
investigate, file complaints and give evidence regarding intellectual
property violations. The company has re-delegated its power to the
complainant, which is impermissible under the law. Moreover, the
complainant filed the written complaint in his own name, while it
should have been filed in the company’s name. Therefore, the
proceedings are legally flawed and should be quashed.
4c. To bolster his contention, the learned counsel appearing on
behalf of the petitioner referred two judgments as under: –
5
i. Mehmood Ul Rehman and Ors. Vs. Khazir
Mohammad Tunda and Ors.1 relying particularly paragraphs 19 to
21 as under:
“19. In Bhushan Kumar v. State (NCT of
Delhi) [Bhushan Kumar v. State (NCT of Delhi), (2012)
5 SCC 424 : (2012) 2 SCC (Cri) 872] , the requirement
of application of mind in the process of taking
cognizance was reiterated. It was further held that
summons is issued to notify an individual of his legal
obligation to appear before the Magistrate as a
response to the alleged violation of law. It was further
held that in the process thus issued, the Magistrate
need not explicitly state the reasons. Paras 11 to 13
contain the relevant discussion, which read as
follows: (SCC pp. 428-29)
“11. In Chief Enforcement
Officer v. Videocon International Ltd. [Chief
Enforcement Officer v. Videocon
International Ltd., (2008) 2 SCC 492 :
(2008) 1 SCC (Cri) 471] (SCC p. 499, para
19) the expression ‘cognizance’ was
explained by this Court as ‘it merely means
“become aware of” and when used with
reference to a court or a Judge, it connotes
“to take notice of judicially”. It indicates the
point when a court or a Magistrate takes
judicial notice of an offence with a view to
initiating proceedings in respect of such
offence said to have been committed by
1
(2015) 12 SCC 420;
6
someone.’ It is entirely a different thing from
initiation of proceedings; rather it is the
condition precedent to the initiation of
proceedings by the Magistrate or the Judge.
Cognizance is taken of cases and not of
persons. Under Section 190 of the Code, it is
the application of judicial mind to the
averments in the complaint that constitutes
cognizance. At this stage, the Magistrate
has to be satisfied whether there is
sufficient ground for proceeding and not
whether there is sufficient ground for
conviction. Whether the evidence is
adequate for supporting the conviction can
be determined only at the trial and not at
the stage of enquiry. If there is sufficient
ground for proceeding then the Magistrate is
empowered for issuance of process under
Section 204 of the Code.
12. A ‘summons’ is a process issued by a
court calling upon a person to appear before
a Magistrate. It is used for the purpose of
notifying an individual of his legal
obligation to appear before the Magistrate
as a response to violation of law. In other
words, the summons will announce to the
person to whom it is directed that a legal
proceeding has been started against that
person and the date and time on which the
person must appear in court. A person who
is summoned is legally bound to appear
before the court on the given date and time.
Wilful disobedience is liable to be punished
under Section 174 IPC. It is a ground for
contempt of court.
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13. Section 204 of the Code does not
mandate the Magistrate to explicitly state
the reasons for issuance of summons. It
clearly states that if in the opinion of a
Magistrate taking cognizance of an offence,
there is sufficient ground for proceeding,
then the summons may be issued. This
section mandates the Magistrate to form an
opinion as to whether there exists a
sufficient ground for summons to be issued
but it is nowhere mentioned in the section
that the explicit narration of the same is
mandatory, meaning thereby that it is not a
prerequisite for deciding the validity of the
summons issued.”
20. The extensive reference to the case law would
clearly show that cognizance of an offence on
complaint is taken for the purpose of issuing process
to the accused. Since it is a process of taking judicial
notice of certain facts which constitute an offence,
there has to be application of mind as to whether the
allegations in the complaint, when considered along
with the statements recorded or the inquiry conducted
thereon, would constitute violation of law so as to call
a person to appear before the criminal court. It is not
a mechanical process or matter of course. As held by
this Court in Pepsi Foods Ltd. [Pepsi Foods
Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998
SCC (Cri) 1400] to set in motion the process of
criminal law against a person is a serious matter.
8
21. Under Section 190(1)(b) CrPC, the Magistrate
has the advantage of a police report and under
Section 190(1)(c) CrPC, he has the information or
knowledge of commission of an offence. But under
Section 190(1)(a) CrPC, he has only a complaint
before him. The Code hence specifies that “a
complaint of facts which constitute such offence”.
Therefore, if the complaint, on the face of it, does not
disclose the commission of any offence, the
Magistrate shall not take cognizance under Section
190(1)(a) CrPC. The complaint is simply to be
rejected.”
ii. Shankar Finance and Investments Vs. State of
Andhra Pradesh and Ors.2 relying particularly paragraph 13 as
under:
“13. The assumption of the High Court that where the
payee is a proprietary concern, the complaint can be
signed only by the proprietor of the proprietary
concern and not by a power-of-attorney holder of the
proprietor, is not sound. It is not in dispute that in this
case a power of attorney has been granted by
Atmakuri Sankara Rao, as proprietor of M/s Shankar
Finance & Investments in favour of Thamada
Satyanarayana and the same was produced along2
(2008) 8 SCC 536 : (2008) 3 SCC (Cri) 558 : 2008 SCC OnLine SC 997
9with the complaint. The description of the complainant
is as under:
“M/s Shankar Finance and Investments (a
proprietary concern of Sri Atmakuri Sankara
Rao, s/o late Sri A.B. Rama Murthy, Hindu,
aged about 65 years), having its office at
Flat No. 3-B, Third Floor, Maharaja Towers,
Vishakhapatnam 3 represented by its
power-of-attorney holder Sri Thamada
Satyanarayana, s/o late Adinarayana,
Hindu, aged 50 years, service, residing at
MIG-B-230, Sagarnagar, VUDA Layout,
Vishakhapatnam 43.”
The said description is proper and therefore, the
complaint has been duly filed by the payee.”
4d. Thirdly, the Learned Magistrate took cognizance solely on
the basis of charge sheet submitted by the Investigating Agency,
without applying his judicious mind and did so mechanically without
perusing the materials on record. This shows that the Learned
Magistrate did not apply his judicious mind and surreptitiously take
cognizance. As such, the proceedings are bad in law and are liable to
be quashed on this ground alone.
To support of his contention, the learned counsel appearing
on behalf of the petitioner has placed reliance of a judgment passed
10
in the case of A.R. Antulay Vs. Ramdas Sriniwas Nayak and Ors.3
Where the Hon’ble Court held the statute requires to do certain thing
in a certain way, “the thing must be done in that way or not at all.
Other methods of performance are necessarily forbidden.”
4e. Lastly, the First Information Report neither disclosed the
name of accused persons nor disclosed ingredients of Section 63 of
the Copyright Act. It is vague, non-specific and evasive concerning
the alleged offence. Therefore, according to the petitioner, proceeding
against the petitioner is absolutely abuse of process of law and for
securing ends of justice, the proceeding is liable to be quashed.
4f. The learned counsel also placed reliance of the following
judgments in support of the petitioner’s case.
i. Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai
Karmur and Ors. Vs. State of Gujarat and Anr.4;
ii. State of Haryana and Ors. Vs. Bhajan Lal & Ors.5;
iii. Knit Pro International v. The State of NCT of Delhi
& Ors.6.;
iv. Mita India Pvt. Ltd. Vs. Mahendra Jain7.
3
AIR 1984 (SC) 718: (1984) 2 SCC 500;
4
(2017) 9 SCC 641
5
AIR 1992 SC 604;
6
(2022) 10 SCC 221.
7
2023 (3) SCALE 18
11
SUBMISSION ON BEHALF OF THE OPPOSITE PARTY NO. 2:
5. Per contra, learned counsel appearing on behalf of the
opposite party no. 2 vehemently opposed the prayer of the petitioner
and further submitted that the inherent power under Section 482 of
the CrPC is wide to make orders necessary to give effect to any order
under Code or prevent abuse of process of any Court or otherwise to
secure the ends of justice. However, such situation does not arise
particularly when a prima facie case has been established against the
petitioner under Section 63 of the Copyright Act in the present case
after investigation.
6. It was further submitted that in the absence of an abuse of
process of law, the Hon’ble High Court should refrain from exercising
its inherent power under Section 482 of CrPC when none of the
conditions or categories set out in the landmark judgment passed in
the case of Bhajan Lal (supra) are met. Therefore, the proceeding
should continue allowing evidence to be adduced in the trial to
uncover the truth and punish the actual perpetrator.
7. Learned counsel appearing on behalf of the opposite party no.
2 has also placed reliance of a judgment passed in the case of
Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and
12Ors. Vs. State of Gujarat and Anr.8, particularly paragraph no. 16
to support of his submission that the complainant was duly
authorised to file complaint against the perpetrator(s) as under:
“16. The broad principles which emerge from the
precedents on the subject, may be summarised in the
following propositions:
16.1. Section 482 preserves the inherent powers
of the High Court to prevent an abuse of the process
of any court or to secure the ends of justice. The
provision does not confer new powers. It only
recognises and preserves powers which inhere in the
High Court.
16.2. The invocation of the jurisdiction of the High
Court to quash a first information report or a criminal
proceeding on the ground that a settlement has been
arrived at between the offender and the victim is not
the same as the invocation of jurisdiction for the
purpose of compounding an offence. While
compounding an offence, the power of the court is
governed by the provisions of Section 320 of the Code
of Criminal Procedure, 1973. The power to quash
under Section 482 is attracted even if the offence is
non-compoundable.
16.3. In forming an opinion whether a criminal
proceeding or complaint should be quashed in8
(2017) 9 SCC 641
13exercise of its jurisdiction under Section 482, the High
Court must evaluate whether the ends of justice
would justify the exercise of the inherent power.
16.4. While the inherent power of the High Court
has a wide ambit and plenitude it has to be exercised
(i) to secure the ends of justice, or (ii) to prevent an
abuse of the process of any court.
16.5. The decision as to whether a complaint or
first information report should be quashed on the
ground that the offender and victim have settled the
dispute, revolves ultimately on the facts and
circumstances of each case and no exhaustive
elaboration of principles can be formulated.
16.6. In the exercise of the power under Section
482 and while dealing with a plea that the dispute
has been settled, the High Court must have due
regard to the nature and gravity of the offence.
Heinous and serious offences involving mental
depravity or offences such as murder, rape and
dacoity cannot appropriately be quashed though the
victim or the family of the victim have settled the
dispute. Such offences are, truly speaking, not private
in nature but have a serious impact upon society. The
decision to continue with the trial in such cases is
founded on the overriding element of public interest in
punishing persons for serious offences.
16.7. As distinguished from serious offences,
there may be criminal cases which have an
14
overwhelming or predominant element of a civil
dispute. They stand on a distinct footing insofar as
the exercise of the inherent power to quash is
concerned.
16.8. Criminal cases involving offences which
arise from commercial, financial, mercantile,
partnership or similar transactions with an
essentially civil flavour may in appropriate situations
fall for quashing where parties have settled the
dispute.
16.9. In such a case, the High Court may quash
the criminal proceeding if in view of the compromise
between the disputants, the possibility of a conviction
is remote and the continuation of a criminal
proceeding would cause oppression and prejudice;
and
16.10. There is yet an exception to the principle
set out in propositions 16.8. and 16.9. above.
Economic offences involving the financial and
economic well-being of the State have implications
which lie beyond the domain of a mere dispute
between private disputants. The High Court would be
justified in declining to quash where the offender is
involved in an activity akin to a financial or economic
fraud or misdemeanour. The consequences of the act
complained of upon the financial or economic system
will weigh in the balance.”
15
8. It was further submitted that no person is barred from filing a
complaint unless specifically prohibited by statute. Therefore, the
complaint by the complainant/opposite party no. 2 is maintainable.
The judgment passed in the case of A.R. Antulay Vs. Ramdas
Sriniwas Nayak and Ors. discussing locus standi, is not applicable
here, as the complainant was duly authorised by the company in
writing.
9. Learned counsel also cited a judgment passed in the case of
Mita India Pvt. Ltd. Vs. Mahendra Jain9 to support of his
contention that a duly authorized representative can file a complaint,
even under special provisions like Section 138 of the N.I. Act.
Delegation and sub-delegation of the functions of the general power of
attorney holder is permissible if there is specific authorisation.
10. Finally, it was argued that the petitioner’s documents related
to the shop appended with written notes of argument, cannot be
considered without supporting an affidavit. Petitioner would get
opportunity to adduce evidence to rebut the allegation of the
prosecution during trial, therefore, the matter should be proceeded in
accordance with law to decide the issues raised by the petitioner after
9
2023 (3) SCALE 18
16
adducing evidences and, thus, the Criminal Revisional application
should be dismissed.
SUBMISSION ON BEHALF OF THE STATE:
11. Learned counsel appearing on behalf of the State submitted
that after completion of investigation, a prima facie case has been
well established against the petitioner. During investigation, the
following counterfeit/duplicate items were seized from the possession
of Tapesh Pal, who was present at the shop during recovery:-
(1) 32 pieces wooden cricket bats with handle style as S.G. with cover
including two small bats with cover;
(2) 38 pairs football show with spike styled on Nivia different colour &
different size;
(3) 21 pieces white colour thigh guard pad styled as S.G. Company;
(4) 7 pieces white colour elbow guard pad style as S.G. and other
items.
The complainant identified these items as counterfeit. A notice was
served to Tapesh Pal under Section 41A of the CrPC requiring him to
explain the possession of counterfeit goods valued at Rs. 42,250/-.
17
However, he failed to provide a satisfactory explanation and deny his
involvement in the offence.
DISCUSSIONS AND FINDINGS BY THIS COURT:
12. I have heard the arguments of the rival parties and on
perusal of the record as well as judgments relied by the parties, this
Court finds it is admitted fact that a written complaint was lodged by
the opposite party no. 2/complainant, Aman Preet in his own name
against some unknown accused persons with the Deputy
Commissioner of Police, Enforcement Branch, Kolkata. The
complainant alleged that the accused conspired to engage in illegal
production and sale of counterfeit/duplicate sports goods under the
brand name as “SG” and “Nivia”, owned by M/s. Sanspareils
Greenlands Pvt. Ltd. and M/s. Freewill Sports Pvt. Ltd. and thereby
infringed the Copyrights and defrauding the complainant’s companies
and customers as well.
13. From the perusal of the complaint, it appears that Aman
Preet is an employee of M/s. Brand Protectors India Pvt. Ltd. having
its registered office at 122, Sector – 15, Part – 1, Gurgaon – 122001,
Haryana. He referred himself as Investigating Officer of the company
on the basis of authorisation. Training Certificates issued by M/s.
18
Sanspareils Greenlands Pvt. Ltd. and M/s. Freewill Sports Pvt. Ltd.
and internal authorization from M/s Brand Protectors India Pvt. Ltd.
and letter of authority issued by the companies are also enclosed with
such written complaint.
14. Upon further perusal of the case record, it appears that
during investigation, the Investigating Officer with the help of local
police conducted raid at M/s. Allied Sports Co. Ltd. situated at 61,
Mahatma Gandhi Road, Kolkata – 700 009 and seized (1) 32 pieces
wooden cricket bats with handle style as S.G. with cover including
two small bats with cover, (2) 38 pairs football show with spike styled
on Nivia different colour & different size, (3) 21 pieces white colour
thigh guard pad styled as S.G. Company, (4) 7 pieces white colour
elbow guard pad style as S.G. and other items. Tapesh Pal was
present at the location wherefrom the counterfeit goods were
recovered. Additionally, a declaration from Smt. Kalpana Pal, mother
of Tapesh Pal, revealed that she had given him a power of attorney to
manage her business affairs under the name and style of M/s. Allied
Sports Company. The petitioner was looking after entire her business
affairs.
15. Thereafter, a notice was served under Section 41A of the
CrPC to Tapesh Pal to explain such possession of counterfeit or
19
duplicate goods valued at Rs. 42,250/- but he failed to satisfy the
possession of such counterfeit products. He also fails to produce any
valid documents of those products.
16. The Investigating Officer also recorded statement of the
seizure witnesses. Prima facie it appears that those items were seized
from the possession of Tapesh Pal, who was present in the shop
styled as “Allied Sports Co.”. Moreover, the petitioner herein signed
the seizure list and subsequently surrendered before the Learned
Trial Court and prayed for bail. His prayer for bail was allowed on
28.11.2019 as he had duly complied with the notice issued under
Section 41A of the CrPC and cooperated with the Investigating
Agency.
17. Some counterfeit or duplicate products were seized from the
shop, where Petitioner was present. He could not explain the illegal
possession of such products and he failed to produce reliable
evidence during the investigation. Furthermore, he also fails to
produce any document that he was not the owner of the shop owner
and/or not looking after the said shop, wherefrom such illegal
products were recovered. Petitioner submitted documents along with
written notes of arguments without supporting by an affidavit. Those
documents are disputed by the opposite party. It cannot be
20
determined by this Court the reliability, genuineness or correctness of
the petitioner’s claim that he is not the owner or authorised person to
look after the business affairs, wherefrom counterfeit items were
recovered without adducing evidence during trial. His innocence/guilt
is to be decided upon adducing evidence and, for that, trial is
essential.
18. Authorisation letters, Training Certificate and internal
authorization and their validity are matter of disputed fact which
cannot be taken into consideration without evidence. Therefore, the
Learned Trial Court will also decide the maintainability of the
complaint based on the authorization, delegation or sub-delegation of
authority via power of attorney, after considering the evidence.
19. Section 63 of the Copyright Act, 1957 deals with the
punishment for copyright infringement stating that anyone who
knowingly infringes or abets the infringement of copyright or other
rights conferred under the act can be punished with both
imprisonment and fine. The punishment for copyright infringement is
imprisonment for a term not less than six months but upto three
years, and a fine ranging from Rs. 50,000/- to Rs. 2,00,000/-.
21
20. A charge sheet has also been submitted against the
petitioner after conclusion of investigation under Section 63 of the
Copyright Act. Evidence collected during investigation also
established prima facie case against the petitioner/ accused person.
Judgments relied by the Petitioner would not aid any help in deciding
the case in his favour as the facts and circumstances of the present
case are extremely different. Rather, Mita India Pvt. Ltd. (supra)
clarified that it is settled that though the general power of attorney
holder cannot delegate his powers to another person but the same
can be delegated when there is a specific clause permitting sub-
delegation. Accordingly, this Criminal Revisional application has
devoid of merits.
21. Consequently, CRR 2057 of 2021 is, thus, dismissed.
Connected applications, if any, are also, thus, disposed of.
22. Case Diary, if any, is to be returned to the learned Advocate
for the State.
23. Let a copy of this Judgment be sent to the Learned Trial
Court for information.
24. Interim order, if any, stands vacated.
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25. All parties will act on the server copies of this Judgment
uploaded from the official website of this Court.
26. Urgent photostat certified copy of this Judgment, if applied
for, is to be given as expeditiously to the parties on compliance of all
legal formalities.
(Ajay Kumar Gupta, J)
P. Adak (P.A.)