Jai Prakash And Anr. vs State And Anr.
2007 Latest Caselaw 814 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 1087

1. The petitioner questions an order on charge made by the learned Metropolitan Magistrate on 25.7.1995. He was charged of having committed offences under Section 63 of Copy Right Act.

2. The allegation in the First Information Report (FIR), made some time in 1993, was that the complainant/informant, alleged to own a factory manufacturing utensils in the trade and style of M/s. Monika Manufacturing Co. and also alleged owner of brand name "VISHAL", (having exclusive use of a registered copyright and prior user of a Trade Mark for the purpose), came to know that the petitioner, proprietor of M/s. Sarvodaya Metal Industries was infringing that copyright as well as the Trade Mark. On the basis of that FIR, investigations were conducted and eventually a charge sheet was filed. By the impugned order, the petitioner was charged with having committed the offence. The material portion of the order reads as under:

6. The contention of the counsel for the accused that the labels are materially different devoid of any force. The complainant is registered owner of artistic label 'VISHAL' duly registered under the provisions of Copyright Act. Since the label was also being used by the accused. In order to come to that conclusion whether one mark is deceptively similar to another, the casual and essential features of the two are to be considered. By placing the two marks side by side it would be enough to ensure if the impugned mark bears such an overall similarity to the registered copyright, as is likely to mislead a person, usually dealing Page 1088 with one to accept the other if offered to him. Prima facie the same for infringement of copyright is made out.

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(8) The contention of the counsel that there was no valid argument in favor of complainant also does not hold water. In the notice of opposition in para TM-5 appended with the challan in 'para 2' it is stated that the complainant Mohinderpal entered into partnership with his elder brother Shyam Lal in the Firm with the share of 50% and on death of Sham Lal on 29-1-1987 became the sole proprietor of M/s. Monika Manufacturing Company. In view of above there is no ground to discharge the accused at this stage.

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(10) The contention of the counsel that accused Jasbir Gupta has no connection with the firm, also does not stand supported. The counsel produced the Income Tax order during the course of arguments. However, the same does not appear to have been filed on record along with application, as directed, for consideration. The said document is also subject to proof during the evidence in order to appreciate the status of accused Jasbir Singh in the firm trading as M/s. Sarvodya Metal Industries. It was specifically alleged in supplimentary statement of Mohinderpal (dated 14-5-93) that both the accused were cousins.

In view of the above, prima facie offence Under Section 63 of the Copy Right Act is disclosed against both the accused. To come up for formal framing of charge on 13.9.1995."

3. Mr. Chetan Sharma, learned senior counsel submits that the charges cannot stand and should be set aside because a previous civil litigation pending between the parties was withheld from consideration of the Court. It was contended that in the suit filed by the complainant, though an injunction was sought, it was declined. Learned Counsel relied upon the copies of the two set of copyrights to say that there are material difference between the two and in these circumstances the court fell into error in forming a prima facie opinion that the copyright was infringed.

4. Learned Counsel relied upon the decision of the Bombay High Court in Gulfam Exporters and Anr. v. Sayid Hamid and Ors. 2000 PTC 496 where the court had, in exercise of its inherent jurisdiction under Section 482, quashed criminal proceedings after taking into account the fact, that civil proceedings were pending between the parties. He also placed reliance upon the decision in Jaiprakash Gupta v. Vishal Aluminium Mfg. Co. 1996 (16) PTC 575 to say that the complainant in these proceedings also claimed to be the partner/proprietor in another concern. It was contended that if that position is correct, he could not have been the owner of the complainant concern in these proceedings.

5. Learned Counsel lastly contended and submitted that the copyright in question belonged to the concern of one Mr. Shyam Lal who had died before the complaint was registered. Learned Counsel urged that if indeed the copyright enured in Shyamlal who was a sole proprietor, the petitioner could not have maintained the proceedings.

Page 1089

6. Learned Counsel for the respondent opposed the petition and urged that the civil litigation had no doubt led to denial of injunction as far as Trade Mark was concerned. Learned Counsel urged that in view of the statement of counsel for the petitioner (who was defendant in the proceedings), he was left at liberty to use the Trade Mark "VISHAL" till the suit pending before the High Court was finally decided.

7. It was also contended that the pendency of civil proceedings did not, in any manner, prejudice or preclude the complainant from filing the criminal complaint and pursuing it if the ingredients of the offence were made out.

8. From the above discussion, it is apparent that civil litigation as to the use of the mark "VISHAL" is pending between the parties. It is also a fact that during the pendency of proceedings, this Court declined injunction and recorded the statement that the complainant would not press the matter regarding use of Trade Mark by the petitioner. However, as regards the Copy Right, which is undisputedly a registered one, there appears to be no agreement between the parties either by way of an interim arrangement; nor was there any interim order of the Court. In these circumstances, I am not persuaded by the submission of the counsel for petitioner that mere withholding of mention of such civil litigation, precluded the trial court from framing the charges.

9. The second serious submission is with regard to the difference in Marks. Copies of both the designs were filed in the Court. Even though there may be some difference in the get up of the Copy Right or representation of the petitioner's product, the style of the font and letters appears to be almost identical. The trial court had the benefit of looking at both the designs. It formed the opinion that they prima facie indicated infringement of Copy Right. I see no reason to conclude otherwise.

10. The third and last submission was so-called disputed ownership of the copyright by the complainant. Here, the court, in criminal proceedings not expected to go into the defense likely to be put-forward by an accused. The complaint and the materials before the Court have to be considered at the stage of framing charges. In the complaint, the respondent had categorically asserted that he was owner of the Copy Right. There is also some material to that effect.

11. At the charge framing stage, the Court has to consider the materials before it and examine whether on a prima facie view, a grave suspicion of commission of offence by the accused exists. In this case, the most important materials were the disputed designs used by the accused petitioner. Such design and the complaint, in my opinion did make out some ground for framing of the charge. Most of the grounds urged during the course of the proceedings today point to possible defenses by the petitioner accused. While these defenses may well be justified and may be sufficient to ensure acquittal on merits, they cannot at the charge framing stage be gone into by the Court at least not in revision by way of second guessing, by the High Court.

12. For the above reasons, I am of the opinion that this petition has to fail. It is accordingly dismissed without any orders as to costs.

13. The trial court record shall be returned forthwith.