Allarakhabhai Ykubhai And Ors vs The State Of Maharashtra & Ors
2017 Latest Caselaw 2146 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD

               CRIMINAL APPLICATION NO.5978 OF 2015


 1.       Allarakhabhai Ykubbhai
          Age : 55 years, Occ : Business,
          R/o. village Tikad, Taluka Halvad
          District Surendrangar (Gujrat)


 2.       Atmaram  Chaudhari,
          Age : 26 years, Occ : Business,
          R/o. Near Railway Station,
          Nava Nagor. (Rajasthan)

 3.       Rajeshkumar Jain
          Age : 45 years, Occ. Business,
          R/o. Mahavir  Namak Udyog 
          Near Railway Station,
          Nava Nagor. (Rajasthan) 

 4.   Kishna Ram Chaudhari
      Age : 45 years, Occ.: Business,
      R/o. Near Railway Station,
      Nava Nagor (Rajasthan)
                                ...APPLICANTS 

        VERSUS             


 1.       The State of Maharashtra


 2.       The Police Station Inchare,
          Gandhi Chowk Police Station,
          District Latur.




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 3.       Nareshkumar Balkishan Karva
          Age : 43 years, Occ.: Business,
          R/o. No.9, Masilamanipuram,
          4th Street, Tuticorin 628008,
          (Tamilnadu)
                                    ...RESPONDENTS

                      ...
 Mr. A.N. Kakade, Advocate for  Applicants.   
 Mr. P.G. Borade,.A.P.P. for R/No.1 & 2 - State.
 Mr. A.S. Barlota, Advocate for Respondent No.3. 
                      ...

               CORAM:   S.S. SHINDE AND
                        K.K. SONAWANE, JJ.

               DATE :   03rd MAY, 2017 

 ORDER  :

This application is filed with the

following prayer :-

"B) That, the offence which is

registered in Gandhi Chowk Police

Station, Latur as Crime No.51 of 2015

dated 03.03.2015 for the offences

punishable under sections 419, 420 of

the Indian Penal Code and under Section

152 of the Copy Right Act, 1957 may

kindly be quashed and set aside."

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2. The brief facts leading to file the

present application are as under :-

It is the case of the informant that, he

is doing the business in the name of "Maheshwari

Salt Trading Company", which is registered in the

year 1999 and is manufacturing salt and the same

is being sold all over India. It is further the

case of the informant that they went to Ganjgolai,

Latur, and on visiting one of the store namely

Pankaj Traders situated at Shivaji Road, Latur, he

came to know that 25 bags containing 25 Kg salt in

each bag of Sagar Shudh Salt brand was being sold

at a price of Rs.150/- per bag. It is the case of

the informant that the salt which is being sold

was being marketed in the trade name of the

informant company. Therefore, the complaint came

to be lodged. Hence this Application is filed with

a prayer to quash the said complaint.

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3. Learned counsel appearing for the

applicants submits that, the complaint is totally

lacking bonafide and the real and correct facts

are not stated by the complainant, and the

applicants herein are genuine businessmen doing

business with honesty and fairness, and the

present complaint is nothing but an abuse and

misuse of process of law.

Learned counsel submits that, the

compromise has been arrived at between the parties

by way of executing a deed of undertaking on 14 th

July, 2015, whereby it has been agreed by the

applicants that they will stop using the name

"Sagar" for their product of salt, being supplied

to the purchasers and the informant has been paid

a compensation of Rs. 1 Lac by the applicants.

Therefore, learned counsel appearing for the

applicants submits that, there exists no dispute

between the informant and applicants.

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4. Learned counsel appearing for the

applicants submits that, even if the allegations

in the first information report are taken as it

is, no ingredients of offence punishable under

sections 420 and 491 of the Indian Penal Code are

attracted as against the applicants as no business

transactions whatsoever had taken place between

the informant and the applicants. Learned counsel

submits that, the applicants have applied for

registration of trade mark and thereafter they

started their business of transporting the goods

to various purchasers. Learned counsel further

submits that, if the informant is having any

grievance about using the name "Sagar" by the

applicants, he has to approach the Registrar of

Trade Marks under the provisions of the Trade

Marks Act, and the alleged acts of the applicants

cannot be said to be criminal in nature, and

therefore, the present complaint is not

sustainable and maintainable. Learned counsel

appearing for the applicants therefore, relying

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upon the pleadings in the application, grounds

taken therein and the annextures thereto, submits

that, the present application deserves to be

allowed.

5. Learned counsel appearing for respondent

no.3 submits that, the applicants are illegally

marketing the salt in the trade name of the

informant company. The applicants have admitted

their guilt and accordingly they have assured

that, henceforth they will not use the word

`SAGAR' and/or `SAGAR SHUDH SAGAR PLUS' or any

other type or form of intellectual property,

trademarks and copyrights of the informant in any

manner. So also the applicants have given

undertaking and agreed to pay Rs.1 Lac to the

informant towards damages for violation of the

intellectual property rights of the informant,

however, till this date, the applicants have not

paid the said amount and they have not acted upon

the terms and conditions of the said deed of

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undertaking. As on today, the present applicants

indulged in the same illegal activities by using

the trade mark of the informant. Inspite of deed

of undertaking given by the applicants, the

applicants in violation of the same, have

continued with their malafide practices and trying

to register their trade mark by providing false

information. Therefore, respondent no.3 has moved

an application to the Registrar of Trade Marks on

8th December, 2016 for removal of the Trade Mark

SAGAR SHUDH. Learned counsel appearing for

respondent no.3, therefore, submits that, there is

direct evidence against the applicants so as to

connect them with the offence in question,

initially by using the trade mark of the

informant, the applicants have cheated respondent

no.3 and subsequently committing the breach of

written undertaking and by not paying the amount

of damages, the applicants have for the second

time cheated the informant. Therefore it is

submitted that, the application may be rejected.

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6. The learned A.P.P. appearing for

respondent/State submits that, the Investigating

Officer has investigated into the matter and found

that, the allegations are true. It is submitted

that, the applicants have admitted the allegations

in the first information report and even agreed to

pay Rs. 1 Lac towards compensation to the

informant and also have given an undertaking that,

they will henceforth not indulge in the alleged

activities of selling the salt.

7. We have given careful consideration to

the submissions of learned counsel appearing for

the applicants, learned A.P.P. appearing for the

respondent/State and learned counsel appearing for

respondent no.3 at length. With their able

assistance, we have perused the grounds taken in

the application, reply filed by respondent no.3

and the allegations in the first information

report. We find considerable force in the argument

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of learned A.P.P. appearing for the

respondent/State and learned counsel appearing for

respondent no.2 that, the applicants have accepted

the allegations in the first information report

and assured and promised the informant in writing

by way of deed of undertaking that, henceforth

they will not use the word `SAGAR' and/or `SAGAR

SHUDH SAGAR PLUS' or any other type or form of

intellectual property, trademarks and copyrights

of the informant in any manner, name of the

company/trading style/trade name, logo, colour,

combination, style, trade description, artistic

work or any other intellectual property of

informant in respect of and in relation of Salt

and or for any other goods services of allied and

cognate nature. Not only this, but the petitioners

have also agreed to pay total Rs.1 Lac to the

informant towards damages for violation of the

intellectual property rights of the complainant.

8. Be that as it may, on careful perusal of

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the allegations in the first information report,

we are of the prima facie opinion that, the

alleged offences have been disclosed and those

needs further investigation. It is a matter of

serious concern that the applicants have not

placed anything on record to show that, even their

establishment is registered. While issuing notices

to the respondents on 18th November, 2015, the

statement was made by learned counsel appearing

for the applicants that, the applicants are also

granted copy right. After noticing that the

respondent also possesses the copy right of

similar nature, the applicants have given

undertaking and also paid compensation of Rs.1

Lac to respondent no.3. As a matter of fact

nothing is placed on record to show that, the

applicants were granted copy right as on 18th

November, 2015. On pointed query to learned

counsel appearing for the applicants, that,

whether there is any documents showing that, the

applicants are granted copy right or any documents

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showing the registration of their establishment,

learned counsel appearing for the applicants has

not brought any document to the notice of this

Court to that effect. In that view of the matter,

the application stands rejected. Needless to

observe that, ad-interim relief granted on 18th

November, 2015, stands vacated.

[K.K. SONAWANE, J.] [S.S. SHINDE, J.]

SGA