[Cites 5, Cited by 0]
Bombay High Court
Rajlakshmi Through It'S Promoter ... vs The State Of Maharashtra And Anr on 15 April, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:17601-DB
48-WP-273-17-final.doc
Sayali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 273 OF 2017
Rajlakshmi through its Promoter Roshan
Babulal Jain ... Petitioner
V/s.
SAYALI The State of Maharashtra and Others ... Respondents
DEEPAK
UPASANI
Digitally signed Mr. Vaibhav Kulkarni, for Petitioner.
by SAYALI
DEEPAK
UPASANI Mr. Amit A. Palkar, APP for State-Respondent No. 1.
Date: 2026.04.15
17:40:21 +0530
CORAM : AMIT BORKAR, J.
DATED : APRIL 15, 2026
P.C.:
1. The petitioner by way of present petition has called in
question the legality, correctness and continuance of FIR No. 31
of 2017 which came to be registered on 13 January 2017 at
Yerawada Police Station at the instance of respondent no. 2 for
the offences punishable under Sections 103 and 104 of the Trade
Marks Act together with Section 420 of the Indian Penal Code,
1860. The challenge as raised proceeds on the foundation that
the criminal action so initiated is wholly unsustainable in facts
and in law and that the continuation of such prosecution against
the petitioner would amount to unwarranted abuse of criminal
machinery. The petitioner therefore seeks exercise of writ
48-WP-273-17-final.doc
jurisdiction of this Court for setting aside of the said FIR on the
ground that even if the allegations are accepted in their entirety,
the same do not disclose commission of any legally sustainable
offence so as to justify continuation of criminal prosecution.
2. The substance of accusation levelled against the petitioner
is that the petitioner is allegedly engaged in sale of goods by
using a deceptively similar trade mark under the name and style
of "Star Lite Salt", whereas according to respondent no. 2, the
said mark infringes its registered trade mark bearing Registration
No. 1116925. It is the case of respondent no. 2 that such use by
the petitioner amounts to infringement and passing off so as to
attract penal consequences contemplated under the provisions of
the Trade Marks Act. On the basis of complaint lodged by
respondent no. 2, the investigating machinery appears to have
been set into motion and after carrying out preliminary
procedural formalities, certain goods alleged to be offending
goods were seized by the investigating agency. Thereafter, the
impugned crime came to be registered against the petitioner
under Sections 103 and 104 of the Trade Marks Act. It is thus
evident that the entire prosecution has arisen from the allegation
that the petitioner's goods bear mark deceptively similar to that
of respondent no. 2 and thereby cause deception in market.
However, the very sustainability of such allegation has been
seriously disputed before this Court.
48-WP-273-17-final.doc
3. The record further indicates that during pendency of
present proceedings, the learned Advocate who earlier appeared
for respondent no. 2 has tendered withdrawal of appearance and
along with the same has produced communication showing
intimation forwarded to respondent no. 2 for necessary further
instructions in the matter. The postal cover annexed with such
communication bears endorsement "refused" dated 28 February
2026. This factual circumstance assumes significance because it
demonstrates that despite due service and despite having
knowledge of pendency of present proceedings, respondent no. 2
has consciously chosen not to appear before this Court and has
also not taken any steps for engaging alternate legal
representation. Such conduct clearly shows absence of diligence
on part of respondent no. 2 in prosecuting the complaint lodged
by it. Though mere absence of complainant by itself may not
conclude the controversy, yet when the matter concerns criminal
prosecution founded on disputed proprietary rights, failure of
complainant to contest the matter despite service lends additional
support to the petitioner's contention that continuation of
proceedings lacks seriousness and bona fides.
4. The learned Advocate appearing on behalf of the petitioner
has invited attention of this Court to an earlier judgment
rendered by a co ordinate Bench in Criminal Writ Petition No. 65
of 2017, wherein the present very respondent no. 2 had initiated
similar criminal proceedings against the same petitioner by
alleging substantially identical infringement and had invoked
48-WP-273-17-final.doc
penal provisions under Sections 102 and 103 of the Trade Marks
Act. It has been urged that the factual basis, nature of accusation,
rival artistic works and grievance made in the earlier petition are
materially identical to those involved in the present matter.
According to the petitioner, the controversy now raised stands
fully covered by the findings already recorded by the co ordinate
Bench and therefore judicial discipline as well as consistency
require that the present matter be decided in same manner unless
distinguishable facts are shown. This submission deserves serious
consideration particularly because criminal law cannot be
repeatedly invoked on same factual foundation when competent
Court has already adjudicated identical dispute between same
parties.
5. It appears from the said earlier judgment that the Division
Bench, upon detailed examination of the rival material placed
before it and after independently comparing the artistic work and
trade dress used by the petitioner and respondent no. 2, recorded
categorical findings on merits that there exists no resemblance
between the two artistic works. The Division Bench further found
that there was no sufficient material to demonstrate that the
alleged artistic work claimed by respondent no. 2 possessed such
originality as would entitle it to exclusive protection in manner
asserted. These findings were not prima facie observations but
were recorded after substantive consideration of rival claims and
after scrutiny of the record then produced before the Court. Once
a competent Court has already held, upon examination of same
48-WP-273-17-final.doc
material, that the two artistic works do not resemble each other
and that originality itself is not established, the very substratum
of allegation of deceptive similarity substantially disappears.
Criminal prosecution founded on allegation of deceptive
imitation cannot survive when the basic comparative analysis
itself does not support such assertion.
6. The Division Bench had also taken note of another serious
legal infirmity in the earlier proceedings, namely that though
initiation of criminal prosecution under relevant provisions
required action in manner contemplated by law through or at the
instance of competent statutory authority such as Registrar of
Trade Marks, the proceedings in fact appeared to have been
commenced solely at behest of a private complainant. On
cumulative consideration of the aforesaid deficiencies, the earlier
proceedings came to be quashed. It is not disputed before this
Court that the allegations forming subject matter of the earlier
writ petition and the artistic work which was examined therein
are exactly same as those involved in present proceedings. Thus,
the factual matrix is not shown to be different in any material
particular. When the same complainant, on same allegations,
regarding same artistic work, against same accused, has already
failed before this Court and the criminal action was quashed
upon detailed findings, permitting another FIR on identical basis
to continue would amount to allowing multiplicity of criminal
proceedings on already adjudicated factual dispute. Such course
would clearly be oppressive, arbitrary and contrary to settled
48-WP-273-17-final.doc
principles governing exercise of criminal jurisdiction.
Continuation of present FIR in face of binding and directly
applicable findings of co ordinate Bench would therefore amount
to abuse of process of law.
7. In view of the aforesaid discussion, this Court finds that the
controversy involved in the present petition is squarely governed
by the judgment dated 10 August 2018 passed in Criminal Writ
Petition No. 65 of 2017 and no distinguishing circumstance has
been pointed out so as to warrant taking a different view. The
allegations in the impugned FIR being founded on same factual
assertions and same artistic work already examined by this Court
cannot be permitted to survive once the earlier proceedings on
identical grounds have been quashed. Accordingly, for the
reasons already recorded in the said judgment and for the
independent reasons discussed hereinabove, the present petition
deserves to succeed.
8. Hence, the Rule is made absolute in terms of prayer clauses
"A" and "B".
9. No order as to costs.
(AMIT BORKAR, J.)
