NATHUBHAI DAYABHAI KAVAIYA Vs. CHIMANLAL GOVINDBHAI RATHOD

JUDGEMENT

(1.) The petitioner is the original-accused no. 2 of M. case No. 2 of 1997 of the Court of JMFC, Jam Khambhalia, District Jamnagar. The case against respondent no.1 is that one Navinbhai Kevaiya had conceived of a new design of plates for manufacturing rolling shutters and had got it registered under the provisions of the Designs Act 1911 and thereafter had assigned the same to the complainant who is the proprietor of Messers Ecotech Enterprise and the original accused no. 2 being the elder brother of said Navinbhai and being in know of the design and the said Navinbhai has actively assisted accused no. 1 in copying the same illegally and thereby committing a piracy, which according to the complainant, amounts to an offence under the provisions of then Copyright Act, 1956 as also Section 420 of the Indian Penal Code.

(2.) It may be recalled that on receipt of the complaint on or about 10th February 1997, what has been ordered by the learned Judge is an inquiry under Sec. 156(3) of the Criminal Procedure Code.

(3.) It is at this stage that the petitioner has come before the Court requesting to quash the complaint and set aside the proceedings of M.Case No. 2 of 1997. The main thrust of the argument on behalf of the petitioner submitted by L.A. Mr. S.N. Bhatt is that, even if the design is registered under the said 1911 Act, it is not copyright for the purpose of Copyright Act, 1957 as laid down in Sec. 15 of the said Copyright Act. Elaborating the submission further, Mr.Bhatt submitted that offence being creation of a Statute and when the alleged offence is said to be under the Copyright Act, with reference to a registered design under the said 1911 Act, if the said registered design is excluded by the very Act which creates the offence, there is no question of even inquiry about the alleged illegal activity.