Bhupesh Goyal vs State Of Chhattisgarh
2021 Latest Caselaw 2032 Chatt

                                                                            1


                                                                        AFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                                                Reserved on 20.07.2021
                                             Pronounced on 27.08.2021


                        WPCR No. 12 of 2019
  1. Bhupesh Goyal S/o Basant Goyal Aged About 27 Years R/o Goyal
     Niwas, Nearby Patel Dharamsala, Gaya Nagar, Durg, Police Station
     And District- Durg, Chhattisgarh.
  2. Hemant @ Harish Goyal S/o Basant Goyal Aged About 30 Years R/o
     Goyal Niwas, Nearby Patel Dharamsala, Gaya Nagar, Durg, Police
     Station And District- Durg, Chhattisgarh.
                                                            ---- Petitioners
                                 Versus
  1. State Of Chhattisgarh Through The District- Magistrate, Durg, Distict-
     Durg, Chhattisgarh.
  2. Station House     Officer   Police   Station   Durg,   District-   Durg,
     Chhattisgarh.
  3. Yashwant Jain S/o Late Sohan Lal Jain R/o Opposite Neha Fancy
     Store, Akriti Vihar, Amlidih, Police Station Rajendra Nagar, Raipur,
     Disrtict- Raipur, Chhattisgarh.
                                                        ---- Respondents

For Petitioners : Shri Tarendra Kumar Jha, Advocate For State : Shri Rakesh Sahu, Dy. Government Advocate For Respondent No. 3 : Shri B.P. Gupta, Shri Ashok Kumar Verma and Shri Gajendra Prasad Sahu, Advocates

Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. ORDER

1. The petitioner has filed this writ petition under Article 226 of the Constitution of India challenging the registration of FIR No. 739/2018 at police station City Kotwali, Durg alleging commission of offence under Section 420/34 of IPC read with Section 63 of the Copyright Act, 1957 and Section 29 of the Trade Marks Act, 1999, subsequent submission of final report before the Chief Judicial Magistrate, Durg which is registered as Criminal Case No. 36770/2018. The police has filed charge-sheet before the Chief Judicial Magistrate, Durg on 30.11.2018.

2. The brief facts as projected by the petitioners are that respondent No. 3, who is the owner of Jain Chuski Chai, has filed complaint before the Police Station, City Kotwali, Durg on 14.09.2018 alleging that the petitioners were projecting their products as 'Goyal Chuski Chai' which is violation of the Copyright Act. They are using his name without being registered before Registrar, Trade Marks. This is causing financial loss to them, therefore, FIR has been lodged. 'Jain Chuski Chai' is registered with Registrar, Trade Marks as well as Registrar, Copyright bearing Copyright registration No. is 87652/2009 dated 26.11.2009 and Trade Mark No. is 2109668 dated 04.03.2011 respectively. On the basis of complaint, the police has conducted raid on godown of the petitioners where wrappers printed with Goyal Chuski Gold filled with tea leaf were seized. The police took statement of the accused and found that offence under Section 63 of the Copy Right Act as well as offence under Section 29 of the Trade Marks Act, 1999 has been committed by the petitioners, therefore, offence under Section 420,34 IPC read with Section 63 of the Copy Right Act, 1957 and Section 29 of the Trade Marks Act have been registered against the petitioners.

3. On the above factual matrix, the petitioners have filed present writ petition (criminal) challenging the registration of FIR and subsequent filing of final report contending that the petitioners have falsely been implicated in the case, as the petitioners have already filed application for rectification before Registrar, Trade Marks on 10.09.2018 for registration of their tea leaf products, the application is still pending before the Registrar, Trade Marks, so, the registration of FIR is counter blast by respondent No. 3 against the petitioners. The petitioners have not committed violation of any Act.

4. It is further contended by the petitioners that petitioner No. 1 ordinarily resides at Mumbai and performs in film / television line. He has been falsely roped in the present case. Perusal of the wrappers of 'Jain Chuski ' and wrappers of 'Goyal Chuski' would show the difference. To demonstrate the same, he has annexed wrappers of both the companies. The petitioners have made complaint to the Inspector General of Police, Range Durg showing their innocence but

their complaint has not been considered.

5. Respondent No. 3 has filed return. Respondent No. 3 would submit that the issue raised by the petitioners requires detail evidence and enquiry therefore, quashing of the FIR by this Court at this juncture will not be justified and the writ petition is liable to be dismissed. In support of his contention, he referred to judgement of the Hon'ble Supreme Court in case of State of Talangana vs. Habib 1. He would further submit that since charge-sheet has already been filed the petitioners have opportunity under Section 239 Cr.P.C. to raise their objections with regard to framing of charges as such the present writ petition challenging the registration of FIR and subsequent filing of charges, deserves to be dismissed.

6. The State has also filed their return in which it has been contended that during the investigation, notice under Section 91 of the Cr.P.C. was issued to the petitioner to produce valid documents relating to registration under Trade Marks Act. The petitioners have not submitted documents as sought by the police, hence, prima facie offence under Section 29 of the Trade Marks Act, offence under Section 63 of the Copyright Act is said to have been committed by the petitioners. Learned counsel for the State would submit that the petitioners have remedy under Cr.P.C. to make an application under Section 227 of the Cr.P.C. for discharging them from the offences registered against them, as such the writ petition is not maintainable and would submit that the writ petition being devoid of merits may be dismissed.

7. This Court has vide its interim order dated 15.01.2019 stayed the further proceedings in Criminal Case No. 36770/2018 pending before the Judicial Magistrate, Durg. Thereafter, respondent No. 3 filed application for vacating interim order passed by this Court mainly contending that petitioners have not registered 'Goyal Chuski Trade Mark with the Registrar whereas respondent No. 3 has already registered its trademark with the Registrar, Trade Marks as 'Jain Chuski'. It has also been contented by learned counsel for respondent No. 3 that the petitioner tried to mislead this Court

(2017) 2 SCC 779

contending that 'H.S.G. Yashika Goyal Chuski' Chai has been registered but has not informed the registration number. It is further contended that present FIR has been registered on the basis of the complaint made by respondent No. 3 on the count that petitioners are using 'Goyal Chuski Trade Mark' whereas 'Jain Chuski Trade Mark' is being used by them. At present there is no issue with regard to H.S.G. Yashika Goyal Chuski Chai but the petitioners deliberately have projected the case of 'H.S.G. Yashika Goyal Chuski Chai'. It has been further contended by the learned counsel for respondent No. 3 that the application filed by the petitioners for registration of H.S.G. Yashika Goyal Chuski Chai has been rejected by the Registrar, Trade Marks, Government of India on 19.03.2018.

8. The contention of the petitioners is that the word 'Chuski' is a common word which can be used by any person. Such opinion cannot override the provisions of Copyright or Trade Marks Act which provides that any sign which is deceptive to the original Trade Marks cannot be permitted to be used by any other, especially, when petitioners' application for registration is refused by the final authority for registration. Therefore, the interim order passed by this Court in favour of the petitioners may be vacated.

9. I have heard learned counsel for the parties and perused the documents annexed with the petition.

10. Before adverting to the legal submissions made by the parties, it is expedient to examine provisions of Section 29 of the Trade Marks Act, 1999 which deals with infringement of registered trademarks, which is extracted below:

"29. Infringement of registered trademarks - (1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.

(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of-

(a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or

(b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or

(c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. (3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public.

(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person. using by way of permitted use, uses in the course of trade, a mark which-

(a) is identical with or similar to the registered trade mark; and

(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and

(c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.

(5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered.

(6) For the purposes of this section, a person uses a registered mark, if, in particu1ar, he-

(a) affixes it to goods or the packaging thereof;

(b) offers or exposes goods for sale, puts them on the market, or stocks them for those purposes under. the registered trade mark, or offers or supplies services under the registered trade mark;

(c) imports or exports goods under the mark; or

(d) uses the registered trade mark on business papers or in advertising.

(7) A registered trade mark is infringed by a person who applies such registered trade mark to a material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the

proprietor or a licensee.

(8) A registered trade mark is infringed by any advertising of that trade mark if such advertising-

(a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or

(b) is detrimental to its distinctive character; or

(c) is against the reputation of the trade mark.

(9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.

11. Section 63 of the Copyright Act, 1957 deals with offences of infringement of copyright, which is extracted below :-

"Section 63 Offence of infringement of copyright or other rights conferred by this Act.--Any person who knowingly infringes or abets the infringement of--

(a) the copyright in a work, or

(b) any other right conferred by this Act, [except the right conferred by section 53A] 1[except the right conferred by section 53A]" [shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that [where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.] Explanation.--Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section."

12. On the above facts of the case the point requires to be determined by this Court is whether, prima facie, the petitioners have violated provisions of Section 63 of the Copyright Act, Section 29 of the Trade Marks Act or committed offence under Section 420/34 IPC or not? To examine this point, it is necessary to extract the contents of F.I.R which is as under:-

"eSa Fkkuk nqxZ ftyk nqxZ es mi fujh{kd ds in ij inLFk gwa vkt fnukad 15 +09 +18 dks ;'koar tSu firk Lo Jh lksguyky tSu fuoklh vkd`fr fogkj veyhMhg jk;iqj Fkkuk U;w jktsUnz uxj Nrrhlx<+ ds }kjk ,d fyf[kr vkosnu is'k fd;k ftl ij gjh'k xks;y vkSj Hkqis'k xks;y ds }kjk jftLVMZ tSu pqLdh pk; VªªsM ekdZ ,oa dkih jkbZV dk mYya?ku dj /kks[kk/kMh djuk crk;k x;k gS izkFkhZ ds vkosnu ij /kkjk 420] 34 Hkknoh] /kkjk 63 dkih jkbZV ,DV dk vijk/k ik;s tkus ls vkjsfu;ksa ds fo:)

lnj /kkjk dk mijk/k iatho) dj foospuk es fy;k x;k vkosnu udy tSy gS] izfr] Jheku Fkkuk izHkkjh egksn; Fkkuk flVh dksrokyh nqxZ fo"k; %&gjh'k xks;y vkSj Hkqis'k xks;y ds }kjk esjs uke ls jftLVMZ tSu pqLdh pk; VªsM ekdZ ,oa dkQh jkbZV dk mYYak?ku dj /kks[kk/kMh fd;s tkus dh fjiksVZ ntZ dj dk;Zokgh fd;s tkus ckcr A egksn; eSa ;'koar tSu firk Lo Jh lksguyky tSu fuoklh usgk QSalh LVksj ds lkeus vkd`fr fogkj veyhMhg jk;iqj Fkkuk U;w jktsUnz uxj NRrhlx< esa esllZ tSu VªsMlZ ds uke ls pk;iRrh dk O;kikj djrk gwa ftldh esjs }kjk fof/kor yk;lsal fy;k x;k gS ftldh ¶ysoj yk;lsal uacj ,Q 88 fnukad 02 +07 +2008 gS ftldk VªsM ekdZ uacj 2109668 fnukad 04 +03 +2011 ls gS] dkih jkbZV jftLVªs'ku uacj , [email protected] ls gS ftles esjs }kjk tSu pqLdh pk; VªsM ekdZ ds uke ls 01 :i;s] 02 :i;s] 25 xzke] 50 xzke] 100 xzke] 250 xzke] 500 xzke ,oa 01 fdyks vkfn jsat esa tSu pqLdh uke ls iSdsfVax dj iwjs Nrrhlx<] mMhlk ,oa e/;izns'k esa O;olk; djrk gwa ,oa tSu pqLdh pk; ds uke ls fu;e vuqlkj VªsMekdZ dk jftLVªªs'ku djk dj ,oa dyj fMtkbZu ,oa fy[kkoV dk Hkh dkih jkbZV ,DV ds rgr Hkh jftLVªs'ku djkdj fu;e vuqlkj O;olk; djrk gwa A egksn; foxr dqN fnuksa ls gjh'k xks;y ,oa Hkqis'k xks;y }kjk xks;y pqLdh pk; dh fofHkUu lkbZt esa iSdsfVax dj gekjs tSu pqLdh pk; ds miHkksDrk dks /kks[kk/kMh iwoZd VªsM ekdZ dk mYy?kau djrs gq;s x;kuxj nqxZ ftyk nqxZ esa iSdsfVax dj O;olk; fd;k tk jgk gS A bl izdkj gjh'k xks;y vkSj Hkwis'k xks;y ds } kjk Ny iwoZd esjs }kjk jftLVMZ djk;s x;s VªsM ekdZ dk mYy?kau dj eq>s vkfFkZd {kfr igwapk;k tk jgk gS A vkjksfi;ks ds fo:) dMh ls dMh dk;Zokgh fd;k tk;s A gLrk{kj vLi"V vkosnd ;'koar tSu izks0 tSu VªsMlZ vkd`fr fogkj veyhMhg jk;iqj NRrhlx< eksckby 9424205071 fnukad 14.09.18"

13. From perusal of the FIR, it is prima facie established that respondent No. 3 has made complaint that the petitioners are using the name of 'Goyal Chuski' without there being any registration granted in favour of the petitioners under the Trade Marks Act and the Copyright Act. Therefore, it is incumbent upon the petitioners to produce documents relating to registration of 'Goyal Chuski' with Registrar of Trade Mark and Registrar of Copyright Act. The police while investigating the offence, as alleged against the petitioners, directed them to produce documents as per Section 91 of the Cr.P.C. but the petitioners have neither produced the documents before the police nor before this Court to substantiate that 'Goyal Chuski' has been registered with the Registrar of Trade Marks. This clearly, prima facie, establishes that petitioners have not registered their product as Goyal Chuski Chai. Thus, the contention of the petitioners that 'Goyal Chuski' is registered, is found to be incorrect statement.

14. The petitioners' stand is that 'Chuski' is a common word used in common parlance, therefore, there is no restriction upon using the words 'Goyal Chuski'. The word 'Chuski' can be used in common social behavior but when it is commercial parlance as trademark, then it has to be registered. Thus, without registration of trademark use of 'Chuski' is in violation of the Trade Marks Act and The

Copyright Act.

15. Learned counsel for the petitioners in support of their contention has relied upon the judgment of the Hon'ble Supreme Court in case of J.R. Kapoor vs. Micronlx India 2 decided on 10th August, 1994 in Appeal(civil) 2253 of 1994 and would refer to para 6 of the judgment and would submit that the prefix Micro is common trade name used in the field of computer, therefore, it is held that by the Hon'ble Supreme Court that it cannot be said that use of word 'Micro' is infringement of the Copyright Act or the Trade Marks Act.

16. Hon'ble Supreme Court in the aforesaid judgment in J.R. Kapoor (Supra) in para 7 recorded its findings as extracted below:-

"7. On a perusal, we do not find any such resemblance between the two descriptions. He then submitted that whereas the respondent-plaintiff had mentioned the words "Best for Colour Black and White TVs & FM Radio" with a black rectangular background of the word 'White' before the words "TVs and FM Radios", the appellant has also mentioned words "For Colour/Black & White TVs. and FM Radios". Again, we do not find that the manner in which the said words are written by both the parties on their respective Cartons are likely to misguide or confuse the buyers. This is apart from the fact that whereas the respondent-plaintiff's carton is in black and white the appellant's carton is fully in colour."

17. Thus, facts of the case of J.R Kapoor (Supra) are distinguishable and not applicable to the facts of the case. In the present case petitioners' wrappers and wrappers of respondent No. 3 seem to have resemblance between the two wrappers. Therefore, judgments cited by the learned counsel for petitioners will not come in rescue of the petitioners. Therefore, contention of the learned counsel for the petitioners that 'Chuski' can be used in common parlance cannot be accepted at this juncture for quashing of the FIR by this Court under Article 226 of the Constitution of India.

18. Learned counsel for the petitioners have also referred to the judgment passed by the Hon'ble High Court of Bombay in case of Macleods Pharmaceuticals Limited vs. Intas Pharmaceuticals Ltd. 3 decided on 29th May, 2013 in Suit No. 768 of 2011. He would

Laws (SC) 1994 8 28

Laws (Bom) 2013 5 42

refer to para 32 of the judgment which is extracted below:- "32. In the above circumstances, I am of the view that the mark LETHYROX of Defendant No.1 is not deceptively similar to the Plaintiff's marks THYROX and ANTI THYROX. The Defendants having coined and invented their mark from the invented molecule, the adoption of the said mark by the Defendants appears to be honest, independent and bona fide.

19. On the other hand, learned counsel for respondent No. 3 would submit that the manner in which the word 'Chuski' has been used by the petitioners is deceptively similar to that of Jain Chuski which has been registered with Registrar, Trade Marks, therefore, petitioners have prima facie committed offence under Section 63 of the Copyright Act and Section 29 of the Trade Marks Act with an intention to gain wrongfully resulting in loss to the sale of respondent No. 3. The act committed by the petitioners is fraudulent in nature, therefore, offence under Section 420 IPC has also been committed by the petitioners. In support of his contention, he referred judgment passed by the Hon'ble Supreme Court in case of Parle Products (P) Ltd vs. J.P. and Co. Mysore 4 relevant part of the judgment is reproduced below:- "It is therefore clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In this case we find that the packets are practically of the same size, the color scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other. The essential features of both are that there is a girl with one arm raised and carrying something in the other with a cow or cows near her and hens or chickens in the foreground. In the background there is a farm house with a fence. The word "Gluco Biscuits" in one and "Glucose Biscuits" on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Anyone in ,our opinion who has a look at one of the packets to-day may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiffs goods, he might easily mistake the defendants'

1972 AIR 1359

wrapper for the plaintiffs if shown to. him some time after he had seen the plaintiffs'. After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have therefore no doubt that the defendants' wrapper is deceptively similar to the plaintiffs' which was registered."

20. Learned counsel for respondent No. 3 would further relied on para No. 17 of judgment of the Hon'ble High Court of Bombay in case of Wyeth Holdings Corporation And ....vs. Burnet Pharmaceuticals (Pvt.)... 5 which is extracted below:-

"17. In considering the question of deceptive similarity, the two marks have to be considered as a whole. The structure of the mark visually and phonetically must be borne in mind. The image which the Court must have is that of the quintessential common man. When the Judge looks at phonetics, the sound which accompanies the pronunciation of the mark is the sound of the mark to an ordinary purchaser bereft of the niceties of language. Structurally and phonetically FOLV falls within that perilous zone where approximation to the mark of the Plaintiffs is close enough to be deceptively similar. It is to my mind, no answer to state that the Plaintiffs intend that the VITE in their mark is to be so pronounced as to rhyme with 'white' while the Defendant intends that the "V" in their mark has to be so pronounced as to rhyme with the 'V' in 'victory' and to then make a distinction between VITE and the V. The ordinary customer goes to a small shop of a Chemist and to him the distinction between FOLVITE on the one hand and FOLV on the other is so thin as to almost be lacking in significance. It may well be that the manner in which the mark of the Plaintiffs is written in Devnagari may make the VITE in the mark resemble 'white'. But every customer in a multi lingual country such as India is not conversant with that script. An average consumer who asks for FOLVITE would fail to gauge the distinction when he is given a strip of tablets of FOLV and that is what matters on the question of deceptive similarity."

21. Learned counsel for respondent No. 3 would further relied on para No. 5 of judgment of the Hon'ble High Court of Delhi in case of Pidlite Industries Pvt. Ltd. vs. Mittees Corporation and Anr. 6 which is extracted below:-

"5. At this stage only prima fade opinion is required to be formed on the question whether the two marks and containers are deceptively similar or not and is it likely to cause deception or not to an average customer and on which side the balance of convenience lies. Before I take up the comparison of the two marks or the similarity or dissimilarity on the containers it would be apposite to state some well settled principles governing

AIR 2008 Bom 100

AIR 1989 Delhi 157

these matters, namely (1) it is always a question of fact in each case whether the deception or confusion is likely to be caused or not by use of the impugned trade mark ; the court has to put itself in the position of an average customer and ask a question whether there is likelihood of deception or confusion or not and then answer the question on that basis (2) the marks must be compared as a whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case, there is no sufficient similarity to cause confusion. The totality of the trade marks is to be seen to find out whether there is likelihood of deception or confusion or mistake in the minds of persons accustomed to the existing trade mark (3) the likelihood of confusion or deception is to be seen in relation to average unwary customer (4) it is the tendency to mislead or cause confusion that forms the gist of passing off action and the plaintiff need not establish the actual deception."

22. Learned counsel for respondent No. 3 would submit that the word used by the petitioners 'Chuski' is used in common parlance or not, whether the words 'Goyal Chuski' are not deceptive in nature are the defence of the petitioners which cannot be examined by this Court while hearing the petition under Article 226 of the Constitution of the India. It requires detail investigation and would refer to judgment of the Hon'ble Supreme Court in case of Priti Saraf and another vs. State of NCT of Delhi and another 7 the relevant paragraphs are extracted below:-

"32. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings. ]"

23. The ground which has been taken by the petitioner in the present petition is his defence, which cannot be appreciated by this Court at

AIROnline 2021 SC 148

this juncture. Hon'ble the Supreme Court in State of Madhya Pradesh Vs. Kunwar Singh 8, has again held that the High Court ought not to be scrutinizing the material in the manner in which, the trial court would do in the course of the criminal trial after evidence is adduced. The Hon'ble Supreme Court in paragraph 8 held as under:- "8. Having heard the submissions of the learned counsel appearing on behalf of the appellant and the respondent, we are of the view that the High Court has transgressed the limits of its jurisdiction under Section 482 of CrPC by enquiring into the merits of the allegations at the present stage. The fact that the respondent was a signatory to the cheques is not in dispute. This, in fact, has been adverted to in the judgment of the High Court. The High Court has also noted that a person who is required to approve a financial proposal is duty bound to observe due care and responsibility. There are specific allegations in regard to the irregularities which have been committed in the course of the work of the 'Janani Mobility Express' under the National Rural Health Mission. At this stage, the High Court ought not to be scrutinizing the material in the manner in which the trial court would do in the course of the criminal trial after evidence is adduced. In doing so, the High Court has exceeded the well-settled limits on the exercise of the jurisdiction under Section 482 of CrPC. A detailed enquiry into the merits of the allegations was not warranted. The FIR is not expected to bean encyclopedia, particularly, in a matter involving financial irregularities in the course of the administration of a public scheme. A final report has been submitted under Section 173 of CrPC, after investigation.

24. Hon'ble the Supreme Court in Kaptan Singh Vs. The State of Uttar Pradesh & others 9, has held as under:-

"9.1 At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, by the time the Investigating Officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-

sheet before the Learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/ inquiry and even the

Criminal Appeal No. 709 of 2021 (decided on 30.07.2021)

Criminal Appeal No. 787 of 2021 (decided on 13.08.2021)

statements recorded. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. 9.2 In the case of Dhruvaram Murlidhar Sonar (Supra) after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this Court that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C. Similar view has been expressed by this Court in the case of Arvind Khanna (Supra), Managipet (Supra) and in the case of XYZ (Supra), referred to hereinabove.

9.3 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C."

25. From the above discussions and provisions of law, the facts placed on record, it is crystal clear that prima facie offence is made against

the petitioners at the instance of respondent No.3. The word 'Chuski' is alleged to have been used by the petitioners, prima- facie infringe the Copyright Act and the Trade Marks Act, therefore, prima facie the registration of FIR is not an abuse of process of law which warrants interference by this Court.

26. In view of what has been discussed, the present writ petition (criminal) is liable to be and is hereby dismissed. The interim order passed by this Court stands vacated. The trial Court is directed to proceed further, in accordance with law, without being influenced by any of the observations made by this Court while deciding this writ petition (criminal). It is made clear that this Court has not expressed anything on the merits of the case the contents raised either by petitioner or respondents are left open and trial court will decide its authenticity or correctness by examining the evidence, documents and materials on record. The facts have been considered for adjudication of the present case only.

27. No order as to costs.

Sd/-

(Narendra Kumar Vyas) Judge kishore