M.K. SHAH

(1) The petitioners are the original accused who were tried by the learned Judicial Magistrate First Class at Anand for the offence under sec 63(a). or in the alternative under sec. 63(b) of the CopyRight Act 1957 (the Act) read with sec. 34 of the India Penal Code and under sec. 120-B of the Indian Penal Code and were convicted by the learned Magistrate for the offence under sec. 63(a) of the Act read with sec. 34 of the Indian penal Code and each one was sentenced to suffer S. T. for three months and pay a fine of Rs. 1 0 in default one months S. I.

(2) . Mr. D. K. Shah the learned Advocate appearing for the accused has not been able to show as to why the order of conviction and sentence so far as it relates to accused No 1 should be interfered with in revision by this court. There is cogent and reliable evidence against accused No. 1 establishing beyond reasonable doubt that he had committed the offence under sec. 63(a) of the Act which provides so far as it is material for our purpose that-

"Any person who knowingly infringes or abets the infringement of- (a) the copyright in a work or (b) x x x x shall be punishable with imprisonment which may extend to one year or with fine or with both."

The explanation is not relevant for cur purposes.

(3) . I am unable to uphold the contentions raised by Mr. Shah with regard to the order of conviction passed against accused No. 2. Both the lower courts have on appreciation of the evidence which was on record and on assessment of the same come to the conclusion that the said accused was guilty for the offence with which he was charged. Bhatia in his evidence in categorical terms has stated that when he visited the Music Centre on 14-7-1972 and 30-11-1972 both the accused were present along with some other persons and both the accused introduced themselves as partners of the Music Centre and also as brothers and when he asked the accused that he was interested in purchasing cassettes then that is both the accused showed one of the cassettes out of the stock. Now there is no effective cross-examination challenging 7 these statements of the witness to the effect that both the accused were present and that both of them showed him cassettes out of the stock. Even his statement that both of them introduced them as partners of the Music Centre was not challenged in cross-examination. With regard to his second visit on 30 1972 as per his say catalogue Ex. 85 was given to him by accused No. 2. The said accused was present when the transaction with regard to 20 cassettes was effected by him on payment of Rs. 1 0 in all. The finding of the learned Magistrate therefore was based on evidence which on assessment by him was found sufficient to establish the prosecution case that accused No. 2 had abetted commitment of the offence by accused No. 1. Again the finding is not based on an isolate incident of his presence in the premises when Bhatia visited the same and purchased the cassettes. He has also taken some part tn the dealings which took place between the Music Centre and Bhatia. The fact that be himself took out and handed over catalogue Ex. 85 to Bhatia takes him out of the category of a person who is accidentally or incidentally present at the premises the same being of his brother. The order of conviction therefore so far as accused No. 2 is concerned is based on evidence establishing the guilt of that accused for the offence With which he was charged.

(4) . Mr. Shah then lastly urged that in the instant case looking to the fact that a comparatively very insignificant and minor role is played byaccused No. 2 in respect of the commitment of the offence and that the part which he played was of abetting the main act performed by accused No. 1 accused No. 2 should have been leniently dealt with by awarding a nominal punishment. With regard to the sentence it has to be borne in mind that the same has to be deterrent enough so as to deter not only the accused who have been brought to book from indulging in the activities whereby there is infringement of copyright but it should also deter others engaged in similar activities. It seems the activity of illegally producing cassettes from recorded music by the company and other lawful holders of copyrights is on the increase and unless it is effectively checked the provisions of the Act will be rendered ineffective and this is therefore high time that such blatant infringement of copyright is severely dealt with. However the sentence has also to be proportionate to the gravity of the offence. Bearing in mind these considerations there is no scope for revising the order of sentence so far as it concerns accused No. 1.

(5) . But in my opinion the case of accused No. 2 can be distinguished so far as sentence is concerned from that of accused No. 1. It is true under sec. 63(a) the Act both the acts of knowingly infringing as well as abetting infringement of copyright in a work are punishable. But in view of the fact that accused No. 2 has played a comparatively minor part in the commission of the offence and in view of the fact that he has not been found to be actively associated with the business to which accused No. 1 mostly attends as also the fact that moneys are accepted by the said accused and receipts are also issued and signed by him in my opinion ends of justice would be met if the substantive sentence of three months S. I. awarded to accused No. 2 is substituted by one months S. I. without disturbing the sentence of fine. Application partly allowed.