The issues of counterfeiting and infringement have been increasing with a great pace since past few years and have attracted serious concerns of the law makers around the world towards themselves and if we take this to the Indian perspective for this there are relief provided in various statues such as The Copyright Act, 1957, The Trade Marks Act, 1999, The Patents Act, 1970, etc. But some relief are also provided in the Indian Penal Code.
Cheating: A person or persons, who had counterfeited a product and making false misrepresentation of owning to that trademark or deceitfully making other believe to be the owner of infringed trademark.
Section 415/420 of IPC deals with cheating it says:
S.415 IPC: 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”.
Illustration (b) says A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.
S.420 IPC: Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Forgery: When a person or persons forge a document and gives a impression in general public that a particular trademark is owned by him/them that amount to forgery which is provided in section S. 463, S. 464, S,468 IPC
S. 463 IPC: [Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
S. 464 IPC: [A person is said to make a false document or false electronic record— First —Who dishonestly or fraudulently—
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any 342 [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the342 [electronic signature],
with the intention of causing it to be believed that such document or part of document, electronic record or 342 [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly —Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with 342 [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly —Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his 342[electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]
S. 468 IPC: Forgery for purpose of cheating.—Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
-Other section can also be imposed like
Criminal conspiracy: When 2 or more person manufacture, sell or help in distribution of a counterfeit product they all can be held liable for criminal conspiracy of the illegal act under Section 120B IPC.
S.120A: When two or more persons agree to do, or cause to be done:
1.an illegal act, or
2.an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
S.120B: 1.Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
Counterfeiting of property mark: If a person or persons, who use, manufacture or sell goods with counterfeit property mark shall be liable to be charge with Sections 481,482, 483, 485, 486, 487, 488 of Indian Penal Code.
Procedure for recordal of complaint and investigation
Relevant Provisions: Sections 100, 160, 161, 162, 165, 167, 169, 170, 172, 173 of the CrPC
The procedure for recordal of complaint and investigation is generally governed by Chapter XII (Sections 154 to 176) of the CrPC titled "Information to the police and their powers to investigate".
For Cognizable offences - Any person aware of the commission of any cognizable offence may give information to the police and may, thereby set the criminal law in motion. Such information is to be given to officer in charge of the police station having jurisdiction to investigate the offence. The information so received shall be recorded in such a form and manner as is provided in Section 154 of the CrPC. The information as recorded under Section 154 is usually known and referred to as the First Information Report or FIR.
If on the basis of the FIR, the station house officer has reason to suspect the commission of a cognizable offence, he is required to send a report of the same to the concerned Magistrate (Section 157, CrPC). Unreasonable delay in sending the said report to the magistrate is bound to affect the prosecution case and might lead to inference adverse to the prosecution case .
If an FIR is not registered by the SHO concerned, the same should be brought to the notice of the higher police officers. If still no FIR is registered, a complaint can be filed before the Magistrate under Section 200 read with Section 156 (3) of the CrPC who may direct the police to register the FIR or may take cognizance of the complaint and keep the complaint with him for further proceedings. As per Section 210 of the CrPC, if there is a complaint case and a police case, both of them will be clubbed by the Magistrate.
For Non-Cognizable offences - If any person gives information of the happening of a non-cognizable offence, the police official has to enter the substance of the information in a book to be kept by such an officer. The officer shall then refer the complainant/informant to the magistrate concerned.
Once Magistrate orders for investigation, the police officer may exercise the same power for investigation as an officer-in-charge of a police station may exercise in case of a cognizable offence. A Complaint can also be made to the Magistrate under Section 190 of the CrPC directly. Thereafter, the magistrate may by virtue of Section 156 (3) direct an investigation by the police in similar manner as a cognizable offence.
Once a cognizable offence is made out or investigation in case of a non-cognizable offence is ordered for by the Magistrate, the Police may proceed to obtain evidence in the matter. The power of search and seizure of the police are governed by Section 165, CrPC read with Section 64, Copyright Act. Accordingly, any police officer not below the rank of a sub-inspector, in order to investigate the facts and circumstances of a case, may proceed to the spot after sending a report to the Magistrate recording his satisfaction that an offence under the Copyright Act has been or is being committed. If necessary, he may seize without warrant, all copies of work infringing work of the copyright holder. Such police officer is also authorized to personally conduct a search within the limits of police station of which he is attached. In doing so, the provisions under Section 165 of the CrPC must be followed.
Section 100 (4) of the CrPC mandates that the investigating officer shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. The search must be conducted in the presence of such witnesses.
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