Bombay High Court
Perfetti Van Melle India Pvt Ltd vs State Of Maha & Ors on 1 September, 2016
Bench: N.W. Sambre
163.04crvn
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.163 OF 2004
Perfetti Van Melle India Pvt. Ltd.,
A Registered Company under the
Companies Act, having its
Registered Office at :
D-62, Defence Colony,
New Delhi 110 024
Through its Senior Executive(Legal)
Shri Anand Devraj Tiwari,
Age: 29 years
ig ..APPLICANT
VERSUS
1. The State of Maharashtra
2. Kasturi Fine Foods (I) Pvt. Ltd.,
Matoshri Rajanbai Chaudhary Complex,
II nd Floor, 5th Lane,
Dhule
Through its Director
3. Atlantic Confectionery Pvt. Ltd.,
Matoshri Rajanbai Chaudhary Complex,
II nd Floor, 5th Lane,
Dhule
4. Mr. Vinod Uttamchand Bafna,
Age: 35 years, Occu: Business,
R/o Matoshri Rajanbai Chaudhary Complex,
II nd Floor, 5th Lane,
Dhule
5. Uttamchand Mulchand Bafna,
Age: 50 years, Occu: Business,
Matoshri Rajanbai Chaudhary Complex,
II nd Floor, 5th Lane,
Dhule
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163.04crvn
(2)
6. Mr. Avadhesh Narayan Tiwari,
Age: 40 years, Occu: Service,
Chief Marketing Officer,
R/o Matoshri Rajanbai Chaudhary Complex,
II nd Floor, 5th Lane,
Dhule
7. Gyanprakash Dindayal Shrivastava,
Age: 45 years, Occu: Service,
R/o 81, Jaihind Colony,
Deopur, Dhule
(Abated vide Court's
order dated 17/01/2006) ..RESPONDENTS
Mr Amol S. Sawant, Advocate for applicant;
Mr K. D. Munde, A.P.P. for respondent No.1;
Mr M. H. Patil, Advocate for respondent Nos.4 & 5
CORAM : N.W. SAMBRE, J.
DATE : 1st SEPTEMBER, 2016
ORAL JUDGMENT :
Pursuant to the complaint filed by the
representative of the applicant-Company, Crime
No. 3032 of 2000 came to be registered for an
offence punishable under section 77, 78, 79, 21(2)
of the Trade & Merchandise Marks Act, 1958
(hereinafter shall be referred to as the "Trade
Marks Act") and Section 51 and 63 of the Copyright
Act, 1957.
163.04crvn
2. The complaint as is lodged speaks of
following facts :
The applicant is the producer of Toffies,
bubbles and candies and also engaged in the
business of selling the same. It is then claimed
that, the Italian Company Perfetti S.P. is helping
the applicant Company to produce and sell
"Alpenliebe" candies w.e.f. 1995. It is then
claimed that in September, 1999, it was noticed by
the applicant that when Kasturi Fine Foods (I) Pvt.
Ltd., and Atlantic Confectionery Private Limited,
situated at Dhule are marking Narial Indich in a
similar label to that of one used by the applicant
and as such there is infringement of Trade Marks
Act and Copyright Act. As such, same has resulted
into registration of crime in question.
3. So far as the above referred crime is
concerned, the same was preceded with suit for
injunction bearing No. 1 of 1999 initiated at
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District Court, Dhule, against the respondent-
accused, which I am informed that the said suit
came to be disposed of with certain observations as
regards recalling of goods, disposal of the same
etc. As such, civil proceedings have already
attained finality under both the above referred
statutes i.e. Trade Marks Act and Copyright Act.
4. The respondent-accused thereafter moved an
application under Section 239 of the Code of
Criminal Procedure seeking discharge on 29th
August, 2000 and learned Magistrate vide order
below Exh. 16 i.e. application for discharge, has
allowed the same on 2nd January, 2004.
5. The reason for allowing the said
application is that the applicant has failed to
disclose any registration under Trade Marks Act.
Apart from above, what is noticed by the Magistrate
is, there is no iota of evidence to prima facie
infer the constitution of offence under both the
above referred statues.
163.04crvn
6. As such, original complainant-applicant
herein has questioned the order of discharge on
merits.
7. This Court, on 22nd November, 2004, has
admitted the present revision based on the certain
judgments cited by the applicant so as to
substantiate that the registration under the
Copyright Act is not required.
8. In the above referred background, Mr
Sawant, learned Counsel for the applicant would
urge that the application for discharge has been
allowed by the learned Magistrate contrary to the
scheme of both the statues, as according to him,
there is prima facie material before learned
Magistrate to constitute the commission of offence
under the relevant provisions. He would then urge
that the respondents-accused are required to be
stand to trial.
163.04crvn
9. Learned A.P.P. supports the above referred
submissions of the learned Counsel for the
applicant.
10. Learned Counsel for respondents-accused
has tried to demonstrate that maximum punishment
has been provided is three years for the offences
under both the statues. He would then urge that
looking to the fact that the alleged offence came
to be registered on 15th May, 2000, the prosecution
of the respondents, particularly looking to their
age, will hardly serve any purpose, as there is no
subsequent complaint from applicant that
respondents-accused have involved in similar types
of offences. He would then submit that perusal of
the record of the present case would also depict
that the applicant has not placed on record any
material to infer as regards constitution of
offence under relevant provisions of both the
statues, as neither material for demonstrating
Copyright nor evidence for substantiating the claim
under Trade Marks Act is brought on record.
163.04crvn
11. Having bestowed my thoughts to the
submissions made, Mr Sawant, learned Counsel for
the applicant was right in pointing out that the
application under the provisions of Sections 23 of
the Trade Marks Act of 1958 came to be moved on
24th July, 1992 and even though same is granted
subsequent to the date of offence, however, such
registration relegates back to the date of
application and as such, the applicant holds
appropriate registration of the goods in question
under the provisions of Trade Marks Act.
12. This takes me to the next point as regards
the offence under the relevant provisions. Section
29 of the Trade Marks Act provides for infringement
of registered trade mark and Section 31 provides
for registration under the Act to be prima facie
evidence of validity of such Trade Mark. Section 77
of the Act provides for falsifying and false supply
of Trade Mark as is alleged in the present case and
Sections 78 and 79 provide for penalty of applying
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false Trade Marks, description etc. which is
punishable with maximum period of two years and
fine and in exceptional cases below six years. So
far as Section 79, which provides for penalty for
selling goods to which false Trade Marks or false
description is supplied, is punishable for a period
of 3 years and fine.
13. It is required to be noted that though the
registration qua Trade Mark brought on record,
however, there is hardly any material placed on
record, much less copy of charge-sheet so as to
constitute offence under the Copyright Act or claim
as has been alleged in the first information
report, commission of crime under the Trade Marks
Act.
14. Apart from above, this Court is required
to take judicial note of the fact that the suit
being No. 1 of 1999 is already disposed of way
back.
163.04crvn
15. Having regard to the fact that the offence
is punishable with maximum of three years and
fine, in my opinion, the respondents-accused have
suffered for a period of sixteen years, as present
proceedings are pending against them as hanging
sword. In my opinion, there is also sufferance of
respondents-accused.
16. The civil suit has already attained
finality, as the applicant has not questioned the
verdict of the civil suit.
17. In my opinion, no case for exercising
revisional jurisdiction, at this stage, is made
out. As such, Criminal Revision Application fails
and stands rejected.
(N.W. SAMBRE, J.)
Tupe
