Mr Prakash Prabhu vs The State Of Karnataka
2021 Latest Caselaw 788 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF JANUARY, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION No.2504/2019

BETWEEN:

MR. PRAKASH PRABHU,
S/O MANJUNATH PRABHU,
AGED 53 YEARS,
R/AT ADHIMANE PRODUCT,
HORANADU VILLAGE,
CHIKKAMAGALURU DISTRICT - 577 124.             ... PETITIONER

         [BY SRI P.P. HEGDE, ADVOCATE (THROUGH V.C)]

AND:

1.     THE STATE OF KARNATAKA,
       THROUGH THE SUB-INSPECTOR OF POLICE,
       KALASA POLICE STATION,
       CHIKKAMAGALURU DISTRICT,
       REPRESENTED BY THE STATE
       PUBLIC PROSECUTOR,
       HIGH COURT OF KARNATAKA,
       BENGALURU-560 001.

2.     SRI P.N. PRATHAP,
       AGED 51 YEARS,
       S/O P.P. NANAIAH,
       ASSISTANT MANAGER,
       THE MYSORE PLANTATIONS LTD.,
       GUARD HITLOW, KOPPA 577 126,
       CHIKKAMAGALURU DISTRICT.              ... RESPONDENTS

             [BY SRI K.S. ABHIJITH, HCGP FOR R-1,
            SRI AMAR CORREA, ADVOCATE FOR R-2]
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      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE FIR IN CR.NO.5/2019 OF KALASA
POLICE STATION REGISTERED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 420 OF IPC, PENDING ON THE FILE OF
ADDITIONAL CIVIL JUDGE AND J.M.F.C., MUDIGERE.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

Though this matter is listed for admission today, with the

consent of both the learned counsel taken up for final disposal.

2. This petition is filed under Section 482 of Cr.P.C.

praying this Court to quash the FIR registered in Crime

No.5/2019 of Kalasa Police Station for the offence punishable

under Section 420 of IPC.

3. The factual matrix of the case is that based on the

complaint of the complainant, the police have registered the

case against the petitioner. The complainant is having a Tea

factory at Koppa and they are processing and selling tea powder

bags in wholesale under the trade name QTF and some of their

customers called and informed that the petitioner is selling the

tea powder printing the QTF label and not selling the product of

the complainant. Hence, the staff of the complainant went and

purchased tea bags of 5 kgs. and 1 kg. from the petitioner and

found that the bags did not contain bag number and bill number

and the said product does not belong to the complainant. Hence,

the case has been registered.

4. The learned counsel for the petitioner would

vehemently submit in his argument that the allegation is

violation of trademark and the complainant cannot invoke the

penal provisions of Section 420 of IPC when the special

enactment is provided under the Trade Marks Act, 1999. The

learned counsel particularly brought to the notice of this Court

Section 101 of the Trade Marks Act and the penal provisions of

Section 102 and the provisions of Section 115 providing

mechanism to deal with the matter in respect of violation of the

trade mark.

5. The learned counsel for the petitioner in support of

his arguments relied upon the judgment of the Apex Court in the

case of SHARAT BABU DIGUMARTI v. GOVERNMENT (NCT

OF DELHI) reported in (2017) 2 SCC 18 and brought to the

notice of this Court paragraph No.37 of the judgment and would

contend that once the special provisions having the overriding

effect do cover a criminal act and the offender, he gets out of

the net of IPC.

6. The learned counsel also relied upon the judgment of

Punjab and Haryana High Court in the case of SATPAL AND

ANOTHER v. STATE OF PUNJAB AND OTHERS reported in

2010 SCC Online P & H 10179 and brought to the notice of

this Court paragraph Nos.3, 7 and 10 of the judgment. Referring

the same, the learned counsel would submit that as per sub-

clause (4) of Section 115 of the Trade Marks Act, 1999, no police

officer below the rank of Deputy Superintendent of Police can

search and seize for goods regarding offence under Sections

103, 104 and 105. He also brought to the notice of this Court

that the word "shall" in the proviso is indication of the fact that

the provision is indeed mandatory. The said offences could have

only been investigated by the officer not below the rank of

Deputy Superintendent of Police.

7. The learned counsel also relied upon the judgment of

the Bombay High Court in the case of GAGAN HARSH SHARMA

AND ANOTHER v. STATE OF MAHARASHTRA THROUGH SR.

POLICE INSPECTOR AND ANOTHER reported in 2018 SCC

Online Bombay 17705. Referring this judgment the learned

counsel brought to the notice of this Court paragraph No.36 of

the judgment, wherein the Bombay High Court dealt with regard

to Section 43 of the Information Technology Act, 2000 with

regard to theft of data stored in the computer.

8. Having referred all these judgments, the learned

counsel vehemently contend that the police officer cannot invoke

Section 420 of IPC when there is a trade mark violation and

ought not to have invoked Section 420 of IPC. The law is

established with regard to dealing the matter under the Trade

Marks Act.

9. Per contra, the learned counsel appearing for

respondent No.2 would submit that the factual aspect is

different. In the case on hand, the petitioner is not having any

trade mark and respondent No.2 is having the trademark to sell

the tea in the name of Garden Fresh Tea. The petitioner though

he is having the product of respondent No.2 in his shop, he

indulged in selling the tea powder printing the Garden Fresh Tea,

which is not the product of respondent No.2 and the same does

not bears any seal, date and the print and he deceived the

complainant by selling the product other than that of respondent

No.2. Hence, the question of invoking the special provisions

under the Trade Marks Act does not arise.

10. The learned counsel referring the judgment of the

Apex Court in the case of Sharat Babu Digumarti (supra)

brought to the notice of this Court paragraph No.10 of the

judgment i.e., with regard to whether the appellant who has

been discharged under Section 67 of I.T. Act could be proceeded

under Section 292 of IPC. The learned counsel also submits that

the special enactment does not prevail over the contents of the

complaint. The learned counsel also submits that there is no any

overriding provision under the Trade Marks Act.

11. The learned High Court Government Pleader

appearing for the State would submit that the police have rightly

registered the case against the petitioner taking note of the

contents of the complaint and there are no grounds to interfere

with the proceedings initiated against the petitioner invoking

Section 482 of Cr.P.C.

12. Having heard the submissions of the respective

learned counsel, this Court has to examine whether the offence

attracts the penal provisions of the Trade Marks Act or Section

420 of IPC.

13. Having perused the complaint, the complaint is

specific that on 06.02.2019, the complainant, who is the

Manager of the Mysore Plantations Limited had lodged the

complaint making the allegation that the petitioner is selling the

tea powder printing QTF trade mark of the complainant and

selling the product which is not the product of the complainant.

Tea bags of 5 kgs. and 1 kg. was purchased from the petitioner

by sending their staff and on perusal of the bags, it bears no bag

number, bill number and date. Hence, the petitioner had

indulged in committing the offence of cheating.

14. Having perused the complaint, there is no dispute

with regard to the trade mark dispute between the petitioner

and the complainant. The petitioner has also not registered any

name under the Trade Marks Act to sell the product. The very

allegation made in the complaint is that the petitioner herein is

selling the tea powder to the general public cheating the

complainant printing the trade mark of QTF, inspite of he is not

having the trademark but deceived the complainant by using the

label of the complainant. Having perused the complaint

averments, the very contention of the learned counsel for the

petitioner that the complainant ought to have invoked the

special provisions under the Trade Marks Act, cannot be

accepted. There is no dispute that the petitioner is not having

trade mark and he had indulged in cheating the complainant.

When the specific allegation is made with regard to cheating, the

question of dispute with regard to the trade mark does not arise,

as contended by the learned counsel for the petitioner. There is

no dispute with regard to the principles laid down by the Apex

Court in its judgment in the case of Sharat Babu Digumarti

(supra). It is settled law that the special enactment prevails over

the general law. The very principles laid down in the judgment

will not come to the aid of the learned counsel for the petitioner.

15. Having perused the allegations made in the

complaint, it is not a fit case to exercise the powers under

Section 482 of Cr.P.C. to quash the proceedings. If it is

quashed, it amounts to interfering with the investigation and the

Investigating Officer has to investigate the matter with regard to

penal provisions invoked against the petitioner.

16. In view of the discussions made above, I pass the

following:

ORDER

The petition is rejected.

Sd/-

JUDGE

MD