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2015 DIGILAW 885 (BOM)

Hotel La Paz Gardens Pvt. Ltd. v. State of Goa

2015-03-30

F.M.REIS, K.L.WADANE

body2015
JUDGMENT : K.L. Wadane, J. 1. This petition is filed by the petitioners to quash and set aside the FIR No. 108/2013 dated 14.06.2013 lodged by respondent No. 4 on behalf of respondent No. 3 with Vasco Police Station, Vasco-da-gama, Goa. The allegations against the petitioners and others in brief are that the respondent No. 4 is attorney of respondent No. 3 i.e. M/s. Media Pro Enterprise India Pvt. Ltd. It is alleged by the respondent No. 4 that the petitioners are displaying channels of respondent No. 3 in their hotel without obtaining licence through unauthorised local cable operator of MSO in cable-net. 2. As per the condition of the licence given to the cable operator, he is authorised to provide cable feed to the residential subscribers and not authorised to provide the cable feed to hotels which are commercial subscribers. If he wants to provide the cable feed to hotel and commercial establishments, he needs to take separate licence. But the local cable operator who provides cable feed in the said hotels did not obtain separate licence from the respondent No. 3 and thereby committed infringement of broadcast reproduction right/copyright of the company under Sections 63, 69 read with 37, 51 of the Copyright Act, 1957 and Sections 420 and 406 of the Indian Penal Code. 3. We have heard the arguments of Mr. A.F. Diniz, learned counsel appearing for the petitioners and Mr. A. N.S. Nadkarni, learned Advocate General appearing for the State/respondent Nos. 1 and 2. We have also perused the records. The respondent No. 3 by its letter dated 27.05.2013 informed the petitioners that as per the subscription agreements executed by the company with cable operators do not authorise to distribute/retransmit the media pro channels to commercial subscribers including the hotels, bars, restaurants, cinemas, halls/theaters, guest houses, hospitals, public viewing areas, stadiums, clubs or the like. It is further informed that the petitioners were receiving media pro channels from the cable operator who is not duly authorised by them to distribute/re-transmit the said media pro channels and therefore media pro channels has incurred a loss of Rs. 16,94,328/- due to the unauthorised distribution and re-transmission of pay channels in the Hotel La-Paz Garden, South Goa. 4. It is further informed that the petitioners were receiving media pro channels from the cable operator who is not duly authorised by them to distribute/re-transmit the said media pro channels and therefore media pro channels has incurred a loss of Rs. 16,94,328/- due to the unauthorised distribution and re-transmission of pay channels in the Hotel La-Paz Garden, South Goa. 4. The petitioner No. 2 has replied the said letter and informed to the respondent No. 3 that as per the orders passed by Telecom Disputes Settlement and Appellate Tribunal, New Delhi dated 10.09.2007 and 07.07.2011 and in terms of these orders the petitioners are entitled to take cable connection from local cable operators of their choice. The broadcasters are not entitled to any commercial charges. Looking to the communication between the parties, it appears that the petitioners have put their defence by way of letter dated 13.06.2013. Considering the arguments advanced on behalf of the petitioners and the contents of the FIR, it is seen that the main grievance of the respondent No. 3 is against the local cable operators who allegedly are providing the services in contravention of agreement between them and the respondent No. 3. From the contents of FIR, it appears that there are no allegations against the petitioners that they are providing such services to its customers by obtaining extra charges. On the contrary, what is seen from the record is that the petitioners have taken services of cable operators which directly supplying the cable connection to the TV installed in the room. Therefore, the question of broadcasting or reproduction does not arise. Mere allegation that the TV channels were displayed in the Hotel room are not sufficient to constitute an offence under the Copyright Act. The petitioners are also charged for the offence punishable under Sections 406 and420 of Indian Penal Code i.e. criminal breach of trust and cheating which defines as follows: "405. Mere allegation that the TV channels were displayed in the Hotel room are not sufficient to constitute an offence under the Copyright Act. The petitioners are also charged for the offence punishable under Sections 406 and420 of Indian Penal Code i.e. criminal breach of trust and cheating which defines as follows: "405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust". 415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". 5. Looking to the provisions of offence of criminal breach of trust and cheating, we are of the opinion that there are no allegations in the complaint against the present petitioners in reference to the offence punishable under Sections 406 and 420 of Indian Penal Code. 6. During the course of the arguments, Mr. Nadkarni, learned Advocate General has fairly conceded the legal position of the matter and has stated that no case is made out against the present petitioners to constitute any offence under the Copyright Act or Indian Penal Code. The allegations made in FIR and/or complaint in entirely do not prima facie constitute any offence or make out a case against the petitioners which discloses a cognizable offence. In view of the above reasons, we are of the opinion that even taking the contents of FIR as a whole do not constitute any offence against the present petitioners. Therefore, FIR No. 108/2013 alleged against the present petitioners needs to be quashed and set aside. Therefore, the following: "ORDER (i) The petition is allowed. In view of the above reasons, we are of the opinion that even taking the contents of FIR as a whole do not constitute any offence against the present petitioners. Therefore, FIR No. 108/2013 alleged against the present petitioners needs to be quashed and set aside. Therefore, the following: "ORDER (i) The petition is allowed. (ii) FIR No. 108/2013 dated 14.06.2013 registered with Vasco Police Station is quashed and set aside as against the petitioners only. (iii) Rule is made absolute in above terms. (iii) The petition stands disposed of accordingly."