Judgment 1. Criminal Revision case is against the judgment of the learned Chief Judicial Magistrate, Pondicherry, in C.C.No.84 of 2006, dated 03.04.2007, in convicting the petitioners, under Section 63 of the Copy Rights Act and sentencing them to undergo six months of Simple Imprisonment, with a fine of Rs.10,000/- each, in default, to undergo six months of Simple Imprisonment and confirmed by the learned IInd Additional District and Sessions Judge, Pondicherry, in C.A.No.8 of 2007, dated 13.08.2010. 2. Station House Officer, CID Police Station, Puducherry, has filed a final report, under Section 173(2) of Criminal Procedure Code, against the petitioners, alleging that on 12.11.2005, about 09.30 Hours, at No.1, Amsavalli Illam, IInd Cross Extension, Sooriyaganthi Nagar, Pondicherry, accused Nos.2 and 3, petitioners 2 and 3 herein, were found indulging in infringement of newly released Tamil films, viz., Sivaksasi, Maja, Anniyan, Chandramuki and Gajini, without having any copy right, either from the producers of the abovesaid films or from the competent authority for the purpose of selling to the general public. On investigation, it was found that Accused No.1, Nethaji, 1st petitioner herein, was the person in charge of the said premises. Prosecution alleged that all the accused committed the offences, punishable under Sections 63 and 65 of the Copy Right Act, 1957. 3. Before the trial Court, on the side of the prosecution, eight witnesses were examined, besides marking four documents. Material Objects, such as, 358 CDs of various Tamil films, Samsung Writers, Monitor, Mouse, CPU and Speakers, have been marked as MO.1 to M6. After trial, the learned Chief Judicial Magistrate, Pondicherry, vide judgment, in C.C.No.84 of 2006, dated 03.04.2007, convicted the petitioners, under Section 63 of the Copy Right Act, 1957 and sentenced them to undergo six months of Simple Imprisonment, with a fine of Rs.10,000/- each, in default, to undergo six months of Simple Imprisonment. On appeal, the learned IInd Additional District and Sessions Judge, Pondicherry, by judgment, dated 13.08.2010, made in C.A.No.8 of 2007, confirmed the same. 4. Assailing the correctness of the impugned judgment, Mr.R.Karthikeyan, learned counsel for the revision petitioners, contended that both the Courts below have failed to consider that no evidence has been let in by the prosecution to prove that DVDs seized, contained the replica of the new movies and that the Court also did not view them. 4. Assailing the correctness of the impugned judgment, Mr.R.Karthikeyan, learned counsel for the revision petitioners, contended that both the Courts below have failed to consider that no evidence has been let in by the prosecution to prove that DVDs seized, contained the replica of the new movies and that the Court also did not view them. He also contended that none of the copy right owners were examined to prove that the DVDs seized contain the abovesaid movies. According to him, unless and until, prosecution proved its case that the DVDs seized, contain the movies, the offence of infringement of copy rights is not made out and therefore, submitted that both the Courts below erred in convicting the petitioners. He raised other grounds also. 5. On the above submission, Mr.Thangavel, learned Additional Public Prosecutor (Pondicherry) was heard. Going through the impugned judgments, learned Additional Public Prosecutor, fairly submitted that no evidence to the abovesaid effect, has been adduced by the prosecution. 6. Before adverting to the rival submissions, this Court deems it fit to have a cursory look at few provisions of the Copy Right Act, 1957. 7. Section 2(f) defines “cinematograph film” as, “any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films.” 8. Section 2(m) of the Act, defines, "infringing copy", which means, “(i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film; (ii) in relation to a cinematographic film, a copy of the film made on any medium by any means; (iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means; (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act.” 9. Chapter XI deals with infringement of copy right. Chapter XI deals with infringement of copy right. Section 51 deals with when copy right infringed and the said section reads as follows: “Copyright in a work shall be deemed to be infringed- (a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act- (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or (b) when any person- (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or (iv) imports into India, any infringing copies of the work Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer. Explanation.- For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy".” 10. "What is essential is to see whether there is reproduction of substantial part of picture.”, Lord Harsetal L.C.in Hanfstaeng v. Baines & Co. 1895 AC 20, held thus, "....It all depends really on the effect produced upon the mind by a study of a picture and of that which is alleged to be a copy, or at least of its design." 11. 1895 AC 20, held thus, "....It all depends really on the effect produced upon the mind by a study of a picture and of that which is alleged to be a copy, or at least of its design." 11. In Macmillion and Company Ltd. v. K and J Cooper, AIR 1924 PC 75 , while pointing out the essential ingredients of the infringement of copy right Lord Atkinson, observed as follows:- "Third, that to constitute piracy of a copy right, it must be shown that the original has been either substantially copied or to be so imitated, as to be a mere evasion of the copy right." 12. In C. Cunniah & Co. v. Balraj reported in AIR 1961 Madras 111, this Court, while applying the test of resemblances, observed thus, “A copy is that which comes near to the mind of every person seeing it. Applying this test, where the question is whether the defendant's picture is a copy of colourable imitation of the plaintiff's picture the design of resemblence between the two pictures which is to be judged by the eye, must get the suggestion that it is the plaintiff's picture. One picture said to be a copy of another picture finds a place in the reproduction." 13. While dealing with a case, arising out of Copy Rights Act, 1957, in R.G.Anand v. Delux Films reported in AIR 1968 SC 1613, the Supreme Court has laid down the following general propositions: “1. There can be copyright in an idea, subject matter, themes, plots or historical or legendary facts, and violation of the copy right in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. 2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3. One of the surest and the safest test to determine whether or not there has been violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets and unmistakable impression that the subsequent work appears to be a copy of the original. 4. Whether the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where, however, apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above." 14. Following the decision made in R.G.Anand's case (cited supra), a Hon'ble Division Bench of the Karnataka High Court, in Associated Electronic & Electrical Industries (Bangalore) Pvt Ltd., v. M/s.Sharp Tools, Kalapatti reported in AIR 1991 Karnataka 406, in a case, dealing with alleged infringment of copyright, at Paragraph 23, held as follows: “23. One of the surest test to determine whether or not there has been a violation of copy right is to see if the reader, spectator, or the viewer after having read or seen both the works would be clearly of the opinion and get an unmistakable impression that the subsequent work appears to be a copy of the first. One of the surest test to determine whether or not there has been a violation of copy right is to see if the reader, spectator, or the viewer after having read or seen both the works would be clearly of the opinion and get an unmistakable impression that the subsequent work appears to be a copy of the first. In otherwords, dealing with the question of infringement of copy right of the applicant's work by the respondent's work, the court is to test on the visual appearance of the object and drawing, design, or artistic work in question and by applying the test viz., 'lay observer test' whether to persons who are not experts in relation to objects of that description, the object appears to be a reproduction. If to the 'lay observer', it would not appear to be reproduction, there is no infringement of the artistic copy right in the work.” 15. In B.K. Dani And Ors. vs State Of M.P. And Anr., reported in 2005 Cri.L.J. 876, petitioners therein were publishers and book sellers. In respect of model questions and answers said to have been published and sold by petitioners, the Secretary, Board of Secondary Education, Madhya Pradesh on 14-10-1994, had lodged a report with Maharanapratap Nagar Police Station alleging that the petitioners therein have committed an Offence by infringing the copyright in a work which consisted of a book on model questions and answers published by it. Though on appearance, the petitioners therein contended that there is no infringement of copy right, the Magistrate proceeded with framing of charges against the petitioners. Criminal Revision filed before the lower Court was dismissed. Being aggrieved by the same, the petitioners therein moved before Madhya Pradesh High Court. One of the contentions raised was that the publication of the petitioners therein were never compared with the model questions and answers, as published by the Board. Addressing the said issue, the Madhya Pradesh High Court, at Paragraph 4, held as follows: “4. In the instant case, as has been pointed out even according to the charge-sheet filed, the publication of the petitioners were in fact never compared with the publication of the Board and, therefore, there was no basis to allege and infer that there was deceptive similarity between the two publications. In the instant case, as has been pointed out even according to the charge-sheet filed, the publication of the petitioners were in fact never compared with the publication of the Board and, therefore, there was no basis to allege and infer that there was deceptive similarity between the two publications. In the circumstances, there appears to be no legal basis to frame a charge for infringement of the copyright Under Section 63 of the Copyright Act, 1957 against the petitioners. Thus, from the allegations as levelled and documents taken at their face value, there being no material to support the charge against the petitioners. It would be clearly an abuse of the process of Court to permit the case to proceed further. So far as the petitioners are concerned, the allegation of breach of copyright was misconceived. Accordingly, petitions Under Section 482, Cr. P.C. succeed and are allowed. Proceedings in Criminal Case No. 498/95 of the Court of MFC, Bhopal against the petitioners are quashed and they shall stand discharged.” 16. Though other grounds have been raised, assailing the correctness of the impugned judgments, perusal of the same, support the contention of the learned counsel for the petitioners that there is a vital omission, on the part of the prosecution to prove that the DVDs, seized by the Investigating Officer, from the place of occurrence, did contain the movies, as alleged. None of the witnesses have spoken to the effect that the DVDs contained the new movies. As rightly contended by Mr.R.Karthikeyan, learned counsel for the petitioner, even the Courts below have not seen the movies in the DVDs seized. There is no comparison with the original version. What is there in the DVDs, nobody knows. Even the copyright owner or any authorised representative has been examined. As copyright amounts to an act of piracy, there should be clear and cogent evidence to prove infringement. Thus, it is a case of no evidence, as regards, “infringement”. Decisions stated supra, squarely apply to the facts of this case. 17. In the light of the above discussion and decisions, the conviction and sentence to undergo six months of Simple Imprisonment, with a fine of Rs.10,000/- each, in default, to undergo six months of Simple Imprisonment, is liable to be set aside and accordingly, set aside. 18. In the result, the Criminal Revision Petition is allowed. Fine amount is directed to be refunded. 18. In the result, the Criminal Revision Petition is allowed. Fine amount is directed to be refunded. No costs. Consequently, connected Miscellaneous Petition is also closed.