Section 482 of Cr.P.C., is filed by the petitioner-accused seeking to quash the proceedings in Crime No.46 of 2018 of Pet Basheerabad Police Station, Cyberabad, registered for the offences under Sections 403, 420 I.P.C. and Sections 69 and 63 r/w 65 of the Copyright Act, 1957. - The allegation is that the petitioner has been dishonestly indulging in broadcasting of channels of the 3rd respondent, even after the discontinuation of signals with effect from 15.01.2018. There is no authority for the petitioner to do so. Such acts can be construed as infringement of copyrights of the 3rd respondent. It amounts to conversion of movable property belonging to respondent No.3 fraudulently with unlawful measures by the petitioner. The impugned criminal proceedings are not invoked as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. The continuation of proceedings is not abuse of process of law. Further, in view of the circumstances of the case, it cannot be held that there are no sufficient grounds to register the impugned crime and proceed with the investigation of the case. The report lodged by the 2nd respondent reveals prima facie commission of a cognizable offence, for which the impugned crime is registered. Continuation of the impugned proceedings is not abuse of process of law.
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CRIMINAL PETITION No.1225 OF 2018
11-04-2018
Subhodaya Digital Entertainment Private Limited.- -Petitioner
The State of Telanagana, rep. by Public Prosecutor and another.- - Respondents
Counsel for the Petitioner:Sri Mummaneni Srinivasa Rao
Counsel for Respondent No.1 : Public Prosecutor (TS)
Counsel for Respondent No.3 : Sri S. Niranjan Reddy, Sr. counsel
for Sri Thoom Srinivas
<GIST :
>HEAD NOTE :
?Cases referred :
(2007) 12 SCC 1
HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CRIMINAL PETITION No.1225 OF 2018
ORDER:
This Criminal Petition, under Section 482 of Cr.P.C., is filed by the
petitioner-accused seeking to quash the proceedings in Crime No.46 of
2018 of Pet Basheerabad Police Station, Cyberabad, registered for the
offences under Sections 403, 420 I.P.C. and Sections 69 and 63 r/w 65 of
the Copyright Act, 1957.
2. Heard Sri Mummaneni Srinivasa Rao, learned counsel for
the petitioner-accused, learned Public Prosecutor appearing for
respondent No.1-State and Sri S. Niranjan Reddy, learned senior counsel
representing Sri Thoom Srinivas, learned counsel for the 3rd respondent,
apart from perusing the material available on record.
3. The learned counsel for the petitioner would submit that a
false report is lodged by the 2nd respondent-de facto complainant who has
no authority to do so. Basing on that, the impugned crime is registered
and under investigation. As per the Copyright Act, the original owner has
to give a complaint to the competent authority not to the police. The police
has no power or authority to register the crime at the instance of the
unauthorized person. The said fact is also proved based on the report
dated 30.11.2015 submitted by the Deputy Superintendent of Police,
Toopran Sub Division. As per the said report and the Act, any party
aggrieved by any dispute in respect of broadcasting of cable network,
ought to have filed complaint before the Telecom Distributor Settlement
and Appellate Tribunal, New Delhi (TDSAT). As per Section 11 of the
Cable Television Networks (Regulation) Act, 1995, the competent
authority is the Commissioner of Police. The de facto complainant is not
the aggrieved person and the original owner of the network is Star India,
so it cannot be looked into. The petitioner is running a cable network
having licence granted by Star India and the licence is valid upto
30.06.2018. Ultimately, the petitioner prayed to quash the impugned
proceedings.
4. The contentions made on behalf of the 3rd respondent are as
follows:
The 3rd respondent is a broadcaster, whose broadcasting and
reproduction rights are infringed by the petitioner. The 2nd respondent is
the authorized representative of the 3rd respondent. The 2nd respondent
filed criminal complaint against the petitioner in the subject crime and
there is no infirmity in filing the criminal complaint by the 2nd respondent.
As an abundant caution, the 3rd respondent filed an application in I.A. No.4
of 2018 to implead it in the Criminal Petition. It is contended that the Star
India Private Limited is a company incorporated under the provisions of
the Companies Act, 1956, and it has registered office in Mumbai. The 3rd
respondent is engaged in the business of broadcasting satellite television
channels of various genres. The 3rd respondent owns the right, title,
interest, etc., including broadcasting and reproduction right for the Star
pay channels. The 3rd respondent has the requisite licence to do so,
obtained from the Ministry of Information and Broadcasting. The business
is being carried as per the Regulations of the Telecom Regulatory
Authority of India Act, 1997. The petitioner-accused representing itself to
be a Multi System Operator involved in the business of retransmission of
signals of cable television channels through its network, approached the
3rd respondent-company seeking supply of Star pay channels for
retransmitting them over its network and offered to pay the subscription
fees to the 3rd respondent-company. The petitioner had fallen due huge
amount. So a payment plan was given by the 3rd respondent to clear the
outstanding amount pertaining to past period. The petitioner also
executed a Memorandum of Understanding (MoU) in September, 2017,
for high definition channels, wherein the petitioner agreed to pay fixed
licence fee of Rs.0.50 lakhs per month for high definition channels. As
expressly mentioned in the agreement, the 3rd respondent agreed to grant
the petitioner the Non-exclusive right to re-broadcast and re-transmit the
channels during the Term via the Distribution System for Re-transmission
to Subscribers within the Territory, subject to the petitioner scrupulously
complying with the terms of the agreement including the clause pertaining
to payment of applicable fixed licence fee of Rs.41.50 lakhs per month.
The conditions of agreement are in tune with DAS Regulations. The rights
granted to the petitioner are from 01.07.2017 to 30.06.2018. The
petitioner committed default in making regular payment as agreed to the
3rd respondent. As per the terms and conditions of the agreement, the 3rd
respondent had suspended the operation of the broadcasting rights of the
petitioner after due notice in accordance with the Regulations after
following due procedure. Thereafter the petitioner could not have lawfully
transmitted/retransmitted the broadcasting signals with effect from
15.01.2018. In spite of notice of suspension of rights, the petitioner is
indulging in transmission of the signals even after 15.01.2018 resorting to
dishonest means. Having noticed the same and captured the signals, an
authorization was given to the de facto complainant to lodge the report.
The submissions made on behalf of the petitioner are unsustainable. The
proceedings cannot be quashed as there is a prima facie case for the
offences alleged and prayed to dismiss the petition.
5. In view of the contentions putforth by both sides, the point for
determination is, whether the request of the petitioner can be acceded to?
6. The 2nd respondent-de facto complainant filed a report dated
20.01.2018 before the police stating that the local cable operator-
Subhodaya Digital Entertainment Private Limited, Jeedimetla, Hyderabad
(the petitioner herein), having their viewers base in Hyderabad and
elsewhere, has been illegally retransmitting and broadcasting Star
Channel without any licence or authorization from the 3rd respondent
through DTH STBs from his control room in Hyderabad city. Its
constituted attorney nanavati and company advocates deputed an anti-
piracy consultant-Mr. Sarfaraz Sayyed (de facto complainant), who
reached the location, captured and recorded the illegal broadcasting of
Star channels over the local network by the petitioner. In the recording,
contained in the disc produced along with the report, Star Plus channel is
visible along with Finger print No.00111ECA. Thus, the petitioner
indulged in transmitting/retransmitting signals of Star pay channels by
illegally demodulating signals from Direct to Home (DTH) Set Top Boxes
(STB) and stealing the signals belonging to the 3rd respondent-company.
The finger print number clearly shows that the local operators are stealing
the signals provided by the 3rd respondent. Basing on the report, a case in
Crime No.46 of 2018 was registered by Pet Basheerabad Police Station,
Cyberabad, for the offences under Sections 403, 420 I.P.C. and Sections
69 and 63 r/w 65 of the Copyright Act.
7. As per the material placed before this Court, the petitioner
committed default in making stipulated payment of Rs.41.50 lakhs per
month to the 3rd respondent. The petitioner committed default in making
payment of the stipulated licence fee of Rs.0.50 lakhs as per the MoU.
There is record to show that the petitioner paid an amount of
Rs.77,06,000/- as against the demand of Rs.3,64,05,119/-. As per the
record, the agreement between the parties contains the method of
payment and it elaborately spells out the consequences of non-payment of
licence fee. Clause 19 of the Agreement provides that if the MSO defaults
in payment of any fixed monthly licence fee on the due date, the
broadcaster shall have the right to suspend delivery to MSO of all the
channels after giving notice in accordance with law. It is not in dispute
that the petitioner is not the licensee of the 3rd respondent. Further, there
is no much dispute with regard to the agreement as well as the MoU
entered into between the parties to the litigation. There is a procedure
under Clauses 6.1 and 6.5 of the DAS Regulations to be followed by
broadcaster for deactivating the supply of signals on failure of the Multi
System Operator to make payment of the fixed monthly licence fee on the
due date. The DAS Regulations further mandate publication of such
notice in two leading local newspapers of the State in which the service
provider is providing the services, out of which one notice shall be
published in the newspaper in local language.
8. In the instant case, the petitioner committed default on
multiple occasions in making payment of fixed licence fee on the due date.
The 3rd respondent issued a notice to the petitioner on 12.12.2017
informing about the default of payment of monthly licence fee and the
consequences. There is also record to show that the notice was
published in the local newspaper and the deactivation and discontinuation
of the signals was effected from 15.01.2018. There is also record to show
that in spite of discontinuation of signals as stated supra, the petitioner
resorted to alleged dishonest means of procuring and providing signals
belonging to 3rd respondent to its subscribers and thereupon the impugned
written report was lodged with the police. On that, the police concerned
registered the subject crime. The 2nd respondent, who is the authorized
agent of the 3rd respondent, has right to lodge a report to the police and no
infirmity can be found therein. As per the record, the 3rd respondent is the
proper party to the proceedings. The implead application filed by the 3rd
respondent is allowed today vide order inI.A. No.4 of 2018.
9. It is apt to refer the decision of the Honble Supreme Court
in Inder Mohan Goswami and another v. State of Uttaranchal and
others , wherein it is observed that the power under Section 482 Cr.P.C.
is required to be exercised sparingly, carefully and with great caution to
prevent abuse of process of the Court or otherwise to secure the ends of
justice. While exercising the power, the Court has to ensure that the
criminal prosecution is not used as an instrument of harassment or for
seeking private vendetta or with an ulterior motive to pressurize the
accused. The power should not be exercised to stifle a legitimate
prosecution.
10. As per the records placed before this Court, the submission
of the report dated 30.11.2015 by the Deputy Superintendent of Police,
Toopran Sub Division, has no bearing over the facts and circumstances of
the instant case. The allegation is that the petitioner has been dishonestly
indulging in broadcasting of channels of the 3rd respondent, even after the
discontinuation of signals with effect from 15.01.2018. There is no
authority for the petitioner to do so. Such acts can be construed as
infringement of copyrights of the 3rd respondent. It amounts to conversion
of movable property belonging to respondent No.3 fraudulently with
unlawful measures by the petitioner. The impugned criminal proceedings
are not invoked as an instrument of harassment or for seeking private
vendetta or with an ulterior motive to pressurize the accused. The
continuation of proceedings is not abuse of process of law. Further, in
view of the circumstances of the case, it cannot be held that there are no
sufficient grounds to register the impugned crime and proceed with the
investigation of the case. The report lodged by the 2nd respondent reveals
prima facie commission of a cognizable offence, for which the impugned
crime is registered. Continuation of the impugned proceedings is not
abuse of process of law. All the contentions raised on behalf of the
petitioner do fail. The petition is devoid of merit and it is liable to be
dismissed.
11. Accordingly, the Criminal Petition is dismissed. The interim
stay granted on 08.02.2018 in I.A. No.2 of 2018 stands vacated.
Miscellaneous petitions, if any pending in this Criminal Petition, shall stand
closed.
________________________
Dr. SHAMEEM AKTHER, J
Date: 11-04-2018
CRIMINAL PETITION No.1225 OF 2018
11-04-2018
Subhodaya Digital Entertainment Private Limited.- -Petitioner
The State of Telanagana, rep. by Public Prosecutor and another.- - Respondents
Counsel for the Petitioner:Sri Mummaneni Srinivasa Rao
Counsel for Respondent No.1 : Public Prosecutor (TS)
Counsel for Respondent No.3 : Sri S. Niranjan Reddy, Sr. counsel
for Sri Thoom Srinivas
<GIST :
>HEAD NOTE :
?Cases referred :
(2007) 12 SCC 1
HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CRIMINAL PETITION No.1225 OF 2018
ORDER:
This Criminal Petition, under Section 482 of Cr.P.C., is filed by the
petitioner-accused seeking to quash the proceedings in Crime No.46 of
2018 of Pet Basheerabad Police Station, Cyberabad, registered for the
offences under Sections 403, 420 I.P.C. and Sections 69 and 63 r/w 65 of
the Copyright Act, 1957.
2. Heard Sri Mummaneni Srinivasa Rao, learned counsel for
the petitioner-accused, learned Public Prosecutor appearing for
respondent No.1-State and Sri S. Niranjan Reddy, learned senior counsel
representing Sri Thoom Srinivas, learned counsel for the 3rd respondent,
apart from perusing the material available on record.
3. The learned counsel for the petitioner would submit that a
false report is lodged by the 2nd respondent-de facto complainant who has
no authority to do so. Basing on that, the impugned crime is registered
and under investigation. As per the Copyright Act, the original owner has
to give a complaint to the competent authority not to the police. The police
has no power or authority to register the crime at the instance of the
unauthorized person. The said fact is also proved based on the report
dated 30.11.2015 submitted by the Deputy Superintendent of Police,
Toopran Sub Division. As per the said report and the Act, any party
aggrieved by any dispute in respect of broadcasting of cable network,
ought to have filed complaint before the Telecom Distributor Settlement
and Appellate Tribunal, New Delhi (TDSAT). As per Section 11 of the
Cable Television Networks (Regulation) Act, 1995, the competent
authority is the Commissioner of Police. The de facto complainant is not
the aggrieved person and the original owner of the network is Star India,
so it cannot be looked into. The petitioner is running a cable network
having licence granted by Star India and the licence is valid upto
30.06.2018. Ultimately, the petitioner prayed to quash the impugned
proceedings.
4. The contentions made on behalf of the 3rd respondent are as
follows:
The 3rd respondent is a broadcaster, whose broadcasting and
reproduction rights are infringed by the petitioner. The 2nd respondent is
the authorized representative of the 3rd respondent. The 2nd respondent
filed criminal complaint against the petitioner in the subject crime and
there is no infirmity in filing the criminal complaint by the 2nd respondent.
As an abundant caution, the 3rd respondent filed an application in I.A. No.4
of 2018 to implead it in the Criminal Petition. It is contended that the Star
India Private Limited is a company incorporated under the provisions of
the Companies Act, 1956, and it has registered office in Mumbai. The 3rd
respondent is engaged in the business of broadcasting satellite television
channels of various genres. The 3rd respondent owns the right, title,
interest, etc., including broadcasting and reproduction right for the Star
pay channels. The 3rd respondent has the requisite licence to do so,
obtained from the Ministry of Information and Broadcasting. The business
is being carried as per the Regulations of the Telecom Regulatory
Authority of India Act, 1997. The petitioner-accused representing itself to
be a Multi System Operator involved in the business of retransmission of
signals of cable television channels through its network, approached the
3rd respondent-company seeking supply of Star pay channels for
retransmitting them over its network and offered to pay the subscription
fees to the 3rd respondent-company. The petitioner had fallen due huge
amount. So a payment plan was given by the 3rd respondent to clear the
outstanding amount pertaining to past period. The petitioner also
executed a Memorandum of Understanding (MoU) in September, 2017,
for high definition channels, wherein the petitioner agreed to pay fixed
licence fee of Rs.0.50 lakhs per month for high definition channels. As
expressly mentioned in the agreement, the 3rd respondent agreed to grant
the petitioner the Non-exclusive right to re-broadcast and re-transmit the
channels during the Term via the Distribution System for Re-transmission
to Subscribers within the Territory, subject to the petitioner scrupulously
complying with the terms of the agreement including the clause pertaining
to payment of applicable fixed licence fee of Rs.41.50 lakhs per month.
The conditions of agreement are in tune with DAS Regulations. The rights
granted to the petitioner are from 01.07.2017 to 30.06.2018. The
petitioner committed default in making regular payment as agreed to the
3rd respondent. As per the terms and conditions of the agreement, the 3rd
respondent had suspended the operation of the broadcasting rights of the
petitioner after due notice in accordance with the Regulations after
following due procedure. Thereafter the petitioner could not have lawfully
transmitted/retransmitted the broadcasting signals with effect from
15.01.2018. In spite of notice of suspension of rights, the petitioner is
indulging in transmission of the signals even after 15.01.2018 resorting to
dishonest means. Having noticed the same and captured the signals, an
authorization was given to the de facto complainant to lodge the report.
The submissions made on behalf of the petitioner are unsustainable. The
proceedings cannot be quashed as there is a prima facie case for the
offences alleged and prayed to dismiss the petition.
5. In view of the contentions putforth by both sides, the point for
determination is, whether the request of the petitioner can be acceded to?
6. The 2nd respondent-de facto complainant filed a report dated
20.01.2018 before the police stating that the local cable operator-
Subhodaya Digital Entertainment Private Limited, Jeedimetla, Hyderabad
(the petitioner herein), having their viewers base in Hyderabad and
elsewhere, has been illegally retransmitting and broadcasting Star
Channel without any licence or authorization from the 3rd respondent
through DTH STBs from his control room in Hyderabad city. Its
constituted attorney nanavati and company advocates deputed an anti-
piracy consultant-Mr. Sarfaraz Sayyed (de facto complainant), who
reached the location, captured and recorded the illegal broadcasting of
Star channels over the local network by the petitioner. In the recording,
contained in the disc produced along with the report, Star Plus channel is
visible along with Finger print No.00111ECA. Thus, the petitioner
indulged in transmitting/retransmitting signals of Star pay channels by
illegally demodulating signals from Direct to Home (DTH) Set Top Boxes
(STB) and stealing the signals belonging to the 3rd respondent-company.
The finger print number clearly shows that the local operators are stealing
the signals provided by the 3rd respondent. Basing on the report, a case in
Crime No.46 of 2018 was registered by Pet Basheerabad Police Station,
Cyberabad, for the offences under Sections 403, 420 I.P.C. and Sections
69 and 63 r/w 65 of the Copyright Act.
7. As per the material placed before this Court, the petitioner
committed default in making stipulated payment of Rs.41.50 lakhs per
month to the 3rd respondent. The petitioner committed default in making
payment of the stipulated licence fee of Rs.0.50 lakhs as per the MoU.
There is record to show that the petitioner paid an amount of
Rs.77,06,000/- as against the demand of Rs.3,64,05,119/-. As per the
record, the agreement between the parties contains the method of
payment and it elaborately spells out the consequences of non-payment of
licence fee. Clause 19 of the Agreement provides that if the MSO defaults
in payment of any fixed monthly licence fee on the due date, the
broadcaster shall have the right to suspend delivery to MSO of all the
channels after giving notice in accordance with law. It is not in dispute
that the petitioner is not the licensee of the 3rd respondent. Further, there
is no much dispute with regard to the agreement as well as the MoU
entered into between the parties to the litigation. There is a procedure
under Clauses 6.1 and 6.5 of the DAS Regulations to be followed by
broadcaster for deactivating the supply of signals on failure of the Multi
System Operator to make payment of the fixed monthly licence fee on the
due date. The DAS Regulations further mandate publication of such
notice in two leading local newspapers of the State in which the service
provider is providing the services, out of which one notice shall be
published in the newspaper in local language.
8. In the instant case, the petitioner committed default on
multiple occasions in making payment of fixed licence fee on the due date.
The 3rd respondent issued a notice to the petitioner on 12.12.2017
informing about the default of payment of monthly licence fee and the
consequences. There is also record to show that the notice was
published in the local newspaper and the deactivation and discontinuation
of the signals was effected from 15.01.2018. There is also record to show
that in spite of discontinuation of signals as stated supra, the petitioner
resorted to alleged dishonest means of procuring and providing signals
belonging to 3rd respondent to its subscribers and thereupon the impugned
written report was lodged with the police. On that, the police concerned
registered the subject crime. The 2nd respondent, who is the authorized
agent of the 3rd respondent, has right to lodge a report to the police and no
infirmity can be found therein. As per the record, the 3rd respondent is the
proper party to the proceedings. The implead application filed by the 3rd
respondent is allowed today vide order inI.A. No.4 of 2018.
9. It is apt to refer the decision of the Honble Supreme Court
in Inder Mohan Goswami and another v. State of Uttaranchal and
others , wherein it is observed that the power under Section 482 Cr.P.C.
is required to be exercised sparingly, carefully and with great caution to
prevent abuse of process of the Court or otherwise to secure the ends of
justice. While exercising the power, the Court has to ensure that the
criminal prosecution is not used as an instrument of harassment or for
seeking private vendetta or with an ulterior motive to pressurize the
accused. The power should not be exercised to stifle a legitimate
prosecution.
10. As per the records placed before this Court, the submission
of the report dated 30.11.2015 by the Deputy Superintendent of Police,
Toopran Sub Division, has no bearing over the facts and circumstances of
the instant case. The allegation is that the petitioner has been dishonestly
indulging in broadcasting of channels of the 3rd respondent, even after the
discontinuation of signals with effect from 15.01.2018. There is no
authority for the petitioner to do so. Such acts can be construed as
infringement of copyrights of the 3rd respondent. It amounts to conversion
of movable property belonging to respondent No.3 fraudulently with
unlawful measures by the petitioner. The impugned criminal proceedings
are not invoked as an instrument of harassment or for seeking private
vendetta or with an ulterior motive to pressurize the accused. The
continuation of proceedings is not abuse of process of law. Further, in
view of the circumstances of the case, it cannot be held that there are no
sufficient grounds to register the impugned crime and proceed with the
investigation of the case. The report lodged by the 2nd respondent reveals
prima facie commission of a cognizable offence, for which the impugned
crime is registered. Continuation of the impugned proceedings is not
abuse of process of law. All the contentions raised on behalf of the
petitioner do fail. The petition is devoid of merit and it is liable to be
dismissed.
11. Accordingly, the Criminal Petition is dismissed. The interim
stay granted on 08.02.2018 in I.A. No.2 of 2018 stands vacated.
Miscellaneous petitions, if any pending in this Criminal Petition, shall stand
closed.
________________________
Dr. SHAMEEM AKTHER, J
Date: 11-04-2018
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