| SooperKanoon Citation | sooperkanoon.com/754811 |
| Subject | Intellectual Property Rights;Criminal |
| Court | Rajasthan High Court |
| Decided On | Feb-20-2002 |
| Case Number | S.B. Civil Writ Petition No. 4310 of 2001 |
| Judge | Arun Madan, J. |
| Reported in | 2002CriLJ2439; 2002(2)WLC740; 2002(5)WLN153 |
| Acts | Indian Penal Code (IPC) - Sections 420; Trade and Merchandise Marks Act, 1958 - Sections 78 and 79; Trade Marks Act, 1999 - Sections 159; Prevention of Food Adulteration Act, 1954 - Sections 20 |
| Appellant | Kailash Chand Gupta |
| Respondent | State of Rajasthan and anr. |
| Appellant Advocate | S.R. Bajwa, Sr. Adv. and; V.R. Bajwa, Adv. |
| Respondent Advocate | Pratap Singh, Govt. Adv. |
| Disposition | Petition allowed |
| Cases Referred | State of Haryana & Others v. Bhajan Lal and |
Madan, J.
1. The facts which are relevant for deciding this petition briefly stated are that the petitioner carries on the business in the name and style of M/s Pooja Traders of which, he is the sole proprietor certificate of which has been issued for carrying on the business of edible oil, ghee, vegetable ghee etc. by Ann. 2.
2. As per the prosecution case one Shri Yogendra Joshi, respondent No.2 raided the godowns of the petitioner on 8.8.2001 and seized utensils i.e. containers, tanks, tubs and balance- scales, ceiling machines, deshi ghee, edible oil etc. and registered a case against the petitioner and two others vide FIR No. 133/2001 (Ann. I) for offence under Section 420 IPC and Sections 78 & 79 of the Trade and Merchandise Marks Act, 1958 for short 'the Act of 1958' on the allegation that the petitioner tried to defraud the public and also prepared mis-branded ghee of various brands for sale. Thereafter, seized ghee was sent for analysis to the office of Public Analyst, Jaipur. The Report is dated 14.9.2001 (Ann. R/l) on the record.
3. The contents of the Report dt. 14.9.01 (Ann. R/l) are reproduced as under-
'The sampled of Ghee market B1 and D1 conform to the prescribed standards as laid down under P.F.A. Act and its rules, 1955.
The sample of Soyabeen Oil market FI. conforms to the prescribed standards as laid down under P.F.A. Act and its rules, 1955.'
4. It has been contended by Mr. Bajwa, learned Senior Counsel appearing for the petitioner that the allegations made against the petitioner as per FIR are wholly misconceived since the ingredients of offences punishable under Section 420 IPC as well as Sees. 78 & 79 of the Act of 1958 has been repeated by the Trade Marks Act, 1999 for short 'the Act of 1999.'
5. In order to appreciate the contention of the petitioner, I would like to quote the relevant portion of the provisions of Sees. 78 & 79 of the Act of 1958, as under-
'78. Penalty for applying false trade marks trade descriptions, etc. Any person who-
(a) falsifies any trade mark; or
(b) falsely applies to goods any trade marks or
(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying, or of being used for falsifying, a trade mark; or
(d) applies any false trade description to goods, or
(e) applies to any goods to which an indication of the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactures is required to be applied under Section 117, a false indication of such country, place, name or address; or
(f) tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied under Section 117, or
(g) causes any of the things abovementioned in this section to be done;
shall, unless he proves that he acted without intent to defraud, be punishable with imprisonment for a term which may extend to two years, or fine, or with both:
Provided that where the offence under this section is in relation to goods or any package containing goods which are drugs within the meaning of cl.(b) of Section 3 of the Drugs Act, 1940, or 'food' as defined in clause (v) of Section 2 of the Prevention of Food Adulteration Act, 1954, the offences shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.'
'79. Penalty for selling goods to which a false trade mark or false trade description is applied -Any person who sells, or exposes forsale, or has in his possession for sale or for any purpose of trade or manufacture, any goods of things to which any false trade mark or false trade description is applied or which, being required under section 117 to have applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer or the person for whom the goods are manufactured, are without the indication so required, shall, unless he proves-
(a) that, having taken all reasonable precautions, against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that the offence had been committed in respect of the goods; and
(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things; or
(c) that otherwise he had acted innocently; be punishable with imprisonment for a term which may extend to two years, or with fine, or with both:
Provided that when the offence against this section is in relation to goods or any package containing goods which are drugs as defined in clause (b) of section 3 of the Drugs Act, 1940, or 'food' as defined in clause (v) of Section 2 of the Prevention of Food Adulteration Act, 1954, the offender shall be punishable with imprisonment for a term which may extend to three years, or which fine, or with both.'
6. During the course of hearing, it has been contended by the learned counsel for the petitioner that the Inspector of Food Department had taken the samples for analysis and they were found to be correct and certificates to this effect have been issued by Certificates dated 24.11.1999, 8.3.2000, 15.7.2000 and 31.1.2001.
7. Prima facie on the basis of the material on the record. I do not find any material or allegation so as to attract the ingredients of offence under Sections 78 & 79 of the Act of 1958. Since the ingredients of the said provisions are not attracted, the charge for commission of offence against the petitioner is not sustainable. Even otherwise also, the provisions of Sections 78 & 79 of the Act of 1958 stands repealed with the introduction of the new Section 159 of Trade Marks Act, 1999. In order to appreciate the contention of the petitioner, I would like to quote hereinbelow the relevant contents of the same, asunder:-
159. Repeal and savings- (I) The Trade and Merchandise Marks Act, 1958 (43 of 1958) is Hereby repealed.
(2) Without prejudice to the provisions contained in the General Clauses Act, 1897(10 of 1897), with respect to repeals, any notification, rule, order requirement, registration, certificate, notice, decision, determination, direction, approval, authorisation, consent, application, request or thing made, issued, given or done under the Trade and Merchandise Marks Act, 1958 (43 of 1958), shall, if in force at the commencement of this Act, continue to be in force and have effect as if made, issued, given or done under the corresponding provisions of this act.
(3) The provisions of this Act shall apply to any application for registration of a trade mark pending at the commencement of this Act and to any proceedings consequent thereon and to any registration granted in pursuance thereof.
(4) Subject to the provisions of Section 100 and notwithstanding anything contained in any other provision of this Act, any legal pro-ceeding pending in any court at the commencement of this Act maybe continued in that court as if this Act had not been passed.
(5) Notwithstanding any thing contained in this Act, where a particu-lar use of a registered trade mark is not as infringement of a trade mark registered before the commencement of this Act, then, the continued use of that mark shall not be an infringement under this Act.
(6) Notwithstanding anything contained in sub-section (2), the date of expiration of registration of a trade mark registered before the commencement of this Act shall be the date immediately after the period of seven years for which it was registered or renewed:
Provided that the registration of a defensive trade mark referred to in section 47 of the Trade and Merchandise Marks Act, 1958 (43of 1958) shall ceased to have effect on the date immediately after the expiry of five years of such commencement or after the expiry of the period for which it was registered or renewed, whichever is earlier.'
'115. (4) Any office not below the rank of Deputy Supdt. of Police or equivalent may if he satisfies that any of the offence referred to in sub-section(3) has been, is being, or is likely to be, committed, search and seize without warrant the goods, dye, block, ma-chine plate, or other instruments or things involved in committing the offence where ever found, and all the articles so seized shall as soon as practicable to produced before a Judicial Magistrate of the First Class or Metropolitan Magistrate or the cause may be, provided that the police officer before making any search and seizure shall obtain the opinion of the Registrar on the facts involved in the offence relating to trade mark and shall abide by the opinion so obtained.'
8. In my view, the argument advanced by the learned counsel for the petitioner as above deserves merit and consideration.
9. As regards the argument advanced by the counsel for the petitioner that the petitioner has not cheated anybody, I would like to quote hereinbelow the provisions of Section 415 as well as Section 420 IPC-
'415. 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'.
Explanation- A dishonest concealment of fact is a deception within the meaning of this section.'
'420. 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.'
10. Ingredients of offence-The essential ingredients of the offence under Section 420 are as follows:-
(1) There should be fraudulent or dishonest inducement of a person by deceiving him;
(2)(a) The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property; or
(b) the person so induced to do anything which he would not to or omit if he were not so deceived, and
(c) in cases covered by second part of clause (a), the act or omission should be one which caused or was likely to cause damage or harm to the person induced in body, mind or property- R-S. Nayak v. A.R. Antulay (1), see also Muba'rak All v. State (2).
11. The two essential ingredients of the offence under this section are-
(A) Decent, this is to say dishonest or fraudulent misrepresentation, and
(B) Inducing the person deceived to part with property - Mubarak AH v. State (supra).'
12. During the course of hearing. 1 am informed by the learned Govt. Advocate appearing for the State that the case has been registered against the petitioner on the basis of the FSL report dt. 14.9.2001 under the PFA Act and the proceedings are pending for adjudication before the competent court. On the strength of this argument, it has been sought to be contended that since the case has already been registered against the petitioner under the Act and the proceedings are in progress, no purpose would be served by keeping the investigation pending further. In my view, the FIR for offence under Section 420 IPC is not sustainabte inasmuch as the cognizance of the matter having been taken by the court for the offence punishable under PFA Act, the present proceedings under the impugned FIR are not sustainable.
13. Shri Bajwa further highlighted the averments made in the Additional Affidavit filed by one Mr. Beharilal, Dy. SP and Circle Officer Sardar, Jaipur who deposed that the sample of Vanaspati Ghee was found to be adulterated as it did the conform to the prescribed standards as laid down under PFA Act and its Rules 1956 and if there is a breach of any legal provision, the same would fall within the purview of the Act of 1954 for which trial is already pending before the concerned Court. Even, under the provisions of Section 20 of the Act of 1954, it is revealed that no prosecution for an offence under the said Act can be instituted except with the requisite consent of the Central Govt. or the State Govt. hence, the said offence is not cognizable.
14. In my view, the investigating agency has no jurisdiction to Investigate the matter as regards this offence is concerned since the action can be taken against the accused only on the basis of a complaint filed by a duly authorised officer and since this being not the position in the instant case and the prosecution having failed to establish this aspect of the matter, any further investigation in this regard is not permissible.
15. I am fortified in my observations in this regard from the judgment of the Apex Court in the matter of R.P. Kapur v. State of Punjab (3), Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre (4), State of Haryana v. Ch. Bhanjanlal (5), Syed Kaleem v. Mysore Lakshi Beedi Works (6) and M/s Pepsi Foods Ltd. v. Special Judicial Magistrate (7) and Vimal Chand v. State (8). In RP Kapur (supra), the Apex Court held as under:-
'The inherent power of High Court under Section 561A, Criminal P.C. cannot be exercised in regard to matters specifically covered by the other provisions of the Code. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of theCode, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction.'
The Apex Court further held that-
'(i) Where it manifestly appears that there is a legal her against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.
(ii) Where the allegations in the First information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First information Report to decide whether the offence alleged is disclosed or not.
(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 501-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.'
16. In Madhavrao Jiwaji Rao Scindia (supra), the Apex Court held, as under: -
'The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.'
17. In M/s Pepsi Foods Ltd. (supra), the Apex Court held as under:-
'It is settled that High Court can exercise its power of judicial review in criminal matters. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not however, be lost sight of thatprovisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated. Summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.
In the present case, the allegations in the complaint merely show that the appellants have given their brand name to 'Residency Foods and Beverages Ltd.' for bottling the beverage 'Lehar Pepsi', and the complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated nor there is averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents and the preliminary evidence on which the respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both and also there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage, the complaint and preliminary evidence recorded makes out no case against appellant accused and, therefore, the order of High Court refusing to quash complaint on ground that there were sufficient ground for proceedings against accused and that alternative remedy was available under Code would not be proper.'
18. In Syed Kaleem (supra), the question which arose for consideration before the Karnataka High Court was as to whether the proceedings initiated against the petitioner by the prosecution for offence under Section 120-A, 120-B and 420 IPC could not be quashed in exercise of inherent jurisdiction of the High Court under Sec. 482 Cr.P.C. The High Court held that since the ingredients of offence were lacking, the impugned order was liable to be quashed.
19. In Vimal Chand (supra), this Court opined, as under:-
'1 am fortified by the observations of the Apex Court made in M/s Pepsi Foods Ltd. v. Special Judicial Magistrate (1997 (4) Crimes 212) wherein the question which had arisen for consideration was as to whether the powers conferred on the High Court under Articles 226 & 227 of the Constitution of India and Section 482 Cr.P.C. have any limits and whether the petitioners are entitled to seek relief of quashing of the complaint filed against them under Section 7/16 of the Prevention of Food Adulteration Act. The Apex Court after having examined rival contentions advanced by the learned counsel for the parties held thatthe exercise of such powers would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure ends of justice. It was further observed that one of such guidelines is, where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. The Apex Court also observed that nomenclature, under which petition is filed is not quite relevant, and that does not debar in the Court from exercising its jurisdiction which otherwise it possession unless there is special procedure prescribed which is mandatory. It has further been held as under:
'No doubt the Magistrate can discharge the accused at any stage of the trial, if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.' It was further observed- '19. It is settled that High Court can exercise its power of judicial review in criminal matters, in State of Haryana & Others v. Bhajan Lal and others (1992 (1) Supp. SCC 335), this Court examined the extra ordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any Court of otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guideline is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offences or make out a case against the accused. Under Article 227 the power of Superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 & 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care exercise of powers could be under Articles 227 of Section 482 of the Code, it may not always be necessary to invoke the provisions of Article 226.'
20. From the discussion made hereinabove, I am prima-facie of the view that since FIR No. 133/2001 dt. 8.8.2001 PS Jalupura, Jaipur City fails to disclose the ingredients of offences alleged therein & punishable under Sec. 420 IPC and Sections 78 & 79 of the Trade & Merchandise Marks Act, 1958 as repealed by Section 159 of Trade Marks Act, 1999 and it deserves to be quashed and set-aside.
21. As a result of the aforesaid discussion, the writ petition is allowed. The impugned FIR No. 133/2001 (Annexure-1) registered at PS Jalupura, Jaipur City is quashed and set-aside. No order as to costs.