M/S Calcutta Wire Netting ... vs Rameshwar Dayal Gupta & Ors.
2009 Latest Caselaw 4597 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


%                    Judgment Reserved on: 27th October, 2009
                    Judgment Delivered on: 11th November, 2009


+         CRL.R.P.225/2002 & CRL.M.A. Nos.424/2002,479/2002


        M/S CALCUTTA WIRE NETTING INDUSTRIES
                                            ..... Petitioner
                       Through:  Mr. Ajay Amitabh Suman,
                                 Advocate.

                          Versus


        RAMESHWAR DAYAL GUPTA & ORS.
                                                 ..... Respondents
                          Through:    Mr.Manoj Ohri, APP for the
                                      State.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?           Yes

     3. Whether the judgment should be reported in the Digest?
                                                   Yes

INDERMEET KAUR, J.

1. On 27.1.1998 M/s Calcutta Wire Netting Industries through

its sole proprietor Madan Lal Arora had filed a complaint under

Sections 78 & 79 of the Trade & Merchandise Act 1958 as also

under Section 63 & 64 of the Indian Copy Right Act 1957 and

under Section 420 of the IPC. This complaint was filed against

certain unknown persons. The allegations in the complaint were

that the complainant firm had adopted the trade mark "TIGER

BRAND" label with device of TIGER in respect of wires and wire

netting in the year 1964 and had been continuously using the

same since up to the date of the filing of the complaint.

Business carried on by the complainant firm was extensive and

goods bearing its trade mark were in high demand in the market

on account of its quality and precision. Complainant firm vide

application No.537068 had applied for registration of this trade

mark "TIGER BRAND" on 1.9.1997. Complainant firm is the

owner of the artistic work in the aforementioned trade mark

titled "TIGER BRAND" label with the device of TIGER as the same

being original in character.

2. On 29.3.1998 a search and seizure order was passed by

the concerned Court before whom the complaint had been filed.

Pursuant to the search warrants articles bearing falsified mark

"TIGER" were recovered from the possession of the accused

Rameshwar Dayal Gupta from premises of M/s Gupta Industrial

Corporation No.2, Gali no.9, Anand Prabhat, New Delhi.

Recoveries were also effected from the possession of Satish

Gupta on 30.3.1998 from premises no.1101,1102, Rucka

Hajrasmal Mohalla Sita Ram Bazar, Delhi. Further recoveries

were also made from the possession of accused Bharat Bhushan

Gupta from premises no. K-429/135, G.T. Karnal Road, Adarsh

Nagar Extension. This recovery was effected on 3.9.1998.

3. On 3.12.1997 a notice of opposition had been filed by

Rameshwar Dayal against the aforestated application of the

complainant seeking registration of his trade mark. As per the

complainant the communication of this notice of opposition had

been made to the petitioner on 11.6.1999 only and this is

evident from the endorsement on page no.137 of the documents

filed along with this petition. It is submitted that this notice of

opposition having been filed by Rameshwar Dayal was not within

the knowledge of the petitioner till 11.6.1999 and that is why it

did not find mention in the complaint filed by him on 27.1.1998.

4. It is further submitted that the registration of a trade mark

is not a condition precedent for initiation of an action under

Section 78 & 79 of the Trade Mark & Merchandise Act 1958; for

this proposition reliance has been placed upon State of U.P. vs.

Ram Nath AIR 1972 SC 232 as also the proposition as laid down

in the judgment, Century Traders vs. Roshan Lal Duggar Co. AIR

1978 Delhi 250.

5. Order impugned before this court is the order dated

27.3.2002 vide which the respondents i.e. Rameshwar Dayal,

Satish Gupta and Bharat Bhushan Gupta had been discharged.

Finding of the court below was primarily on two counts:-

i. Complainant was not a registered owner of the trade mark.

ii. Concealment of material facts.

6. Perusal of the record and submissions made by the

petitioner substantiate his stand; in „State of U.P.‟ supra, it has

been inter alia held :-

" The definition of „trade mark‟ in S.2(1)(v) that for the purpose of Chapter „X‟ of the Act which deals with the criminal offences, a trade mark includes a registered as well as unregistered trade mark. An offence under Ss. 78 or 79 therefore relates to a trade whether it is registered or unregistered."

7. It is thus clear that the registration of a trade mark is not a

condition precedent for the initiation of a complaint under

Sections 79 & 79 of the Trade Mark & Merchandise Act

8. Second finding of the Trial Judge is also an erroneous

finding as the documents filed on record prima facie show that

the notice of opposition purportedly filed by Rameshwar Dayal

on 3.12.1997 had been communicated to the petitioner only on

11.6.1999; that is why it did not find mention in the complaint

which was filed on 27.1.1998. This is no suppression of material

facts.

9. The petitioner along with his complaint has filed various

documents in support of his submission that he has been using

this trade mark since February 1967. These includes an

application for interim injunction filed in Suit No.234/96 by the

petitioner against M/s Soni Udhyog. The High Court while

granting the ad interim injunction in favour of the plaintiff had

held that the plaintiff has placed on record prima facie sufficient

material sufficient to show that it had been marketing its product

under the trade mark "TIGER BRAND" from the year 1967; the

sale figures disclosed also show that it had acquired a

reputation/goodwill with the use of the trade mark "TIGER

BRAND" brand in respect of wire netting.

10 Section 78 of the Trade Mark and Merchandise Act relates

to the making of false marks and Section 79 relates to the sale,

exposure or possession of the offending marks. Both the

offences are statutory offences; mens rea and dishonest

intention is not a necessary ingredient. In Mohamod Khalil Vs.

State of Maharashtra & Anr. 1982 PTC 411 while dealing with the

provisions of Section 78 & 79 of the aforestated Statute it had

been held that for an offence under the statutory Act the

principle of mens rea cannot be applied with the same rigor;

statutory offences have to be determined in the circumstances

and the conditions prescribed by the statute.

11. In the instant case, it has prima facie been established that

the petitioner had a prior user, goodwill, reputation and

proprietary right in the said trade mark i.e. "TIGER BRAND".

12. At the stage of framing of charge the details of all the

material which the prosecution will produce or rely on during the

stage of trial are not expected to be produced or referred to

before the learned judge at the time of opening of the case for

the prosecution. Under Section 227 and 228 of the Criminal

Procedure Code the court has to satisfy itself that the accusation

made against the accused person is not frivolous and there is

some material for proceedings against him; the stage prior to the

framing of a charge is not expected to be a dress rehearsal of a

trial.

13. The impugned order clearly calls for interference. Prima

facie, the ingredients of the offences as mentioned in the

complaint are made out against the accused persons. Impugned

order being illegal and based on erroneous finding; it is liable to

be set aside; revision petition is allowed.

14. Parties to appear before Chief Metropolitan Magistrate on

26.11.2009 who will proceed with the complaint in accordance

with law.

15. Record of the Trial court be returned.

(INDERMEET KAUR) JUDGE 11th November, 2009 nandan