Anil Kumar vs State Of Punjab And Another

Crl. Misc. No. M-9229 of 2009 -1-

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Crl. Misc. No. M-9229 of 2009 Date of decision : 22.03.2011

Anil Kumar ......Petitioner

versus

State of Punjab and another ...Respondents

CORAM: HON'BLE MS. JUSTICE RITU BAHRI

Present: Mr. P.S. Ahluwalia, Advocate for the petitioner.

Sh. Guninder Singh Brar, A.A.G., Punjab for respondent-State

****

RITU BAHRI , J. (Oral)

The present petition has been filed under Section 482 Cr.P.C

for quashing the FIR No.315 dated 14.7.2008 registered at P.S. Kotwali,

Patiala under Sections 63 and 65 of the Copy Right Act, 1957 (herein after

to be referred as "the Act") and Section 420 IPC.

Respondent No. 2 visited Patiala City to conduct survey.

During survey, he came to know that Anil Kumar (petitioner) son of Ratan

Lal Bansal was selling fake shoes and chappals of Adidas and Reebok

companies at original price, by disclosing the same to be original. Petitioner

was cheating the innocent people and was causing economic and financial

loss to the company as well as to the Government. He recommended that a

raid should be conducted at his shop and godown, situated at House No.

5314, Rorian Mohalla, Patiala. Pursuant to registration of the F.I.R, a report

under section 173 Cr.P.C was presented by the police in which the

petitioner was arrayed as an accused for offences punishable under Sections Crl. Misc. No. M-9229 of 2009 -2-

63 and 65 of the Act and Section 420 IPC. Copy of the challan is Annexure

P1.

Mr. P.S. Ahluwalia, counsel for the petitioner has placed

reliance on the judgment of this Court in 2011 (1) RCR Crl 281, 2007 (1)

RCR Crl 773 and 2002 (3) RCR Crl. 273 to contend that no offence under

Sections 63 and 65 of the Copy Right Act is made out. After coming into

force of Trade and Merchandise Marks Act, 1958, it would be unreasonable

to add Section 420 IPC for the same very allegations which are covered by

aforementioned Act.

Mr. G.S. Brar, AAG Punjab has argued that on the complaint

made by the petitioner on 14.07.2008, statement of the complainant was

recorded, in which he has stated that Anil Kumar son of Rattan Lal in his

shop of Century Footwear, Dooma Wali Gali, near Gher Sodhian, Patiala is

selling the fake shoes and Chappals of Adidas and Reebok company at

original price. In this manner, he was cheating the innocent people and was

causing economic and financial loss at large scale to their company. A raid

was conducted in the godown and 288 pairs of shoes of different sizes and

different colours, 100 pairs of chappal upon which forged sticker of adidas

company have been affixed were found. On the inner side of the recovered

shoes seal of made in China, Indonesia and Korea have been affixed. Due to

this, F.I.R No.315 dated 14.7.2008 under Sections 63 and 65 of the Copy

right Act, 1957 was got registered against the petitioner. During

investigation, offence under Section 78/79 of Trade Mark Act was added.

Challan has been presented before the trial Court on 24.09.2008. During

investigation, the petitioner failed to produce any kind of bill of the stock or

any authority letter from the company authorizing the petitioner to act as Crl. Misc. No. M-9229 of 2009 -3-

dealer of the company. It is a clear case of cheating and the petitioner can

take all the pleas before the trial Court.

Heard learned counsel for the parties.

Reference is being made to Section 13 of the Act which deals

with the work in which copyright subsists. Section 13 of the Act reads as

under:-

13. Works in which copyright subsists:- (1) Subject to the provisions of this Section and the other provisions of this Act, copyright shall subsists throughout India in the following classes of works, that is to say,-

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and (c) sound recording.

In view of Section 13 of the Act, Copy Right Act is applicable

in original literary, dramatic, musical and artistic works, cinematograph

films, sound recording. The provision of the Act are not applicable for the

purpose of shoes and chappals

Reference is being made to the judgment of this Court in M/s

Bikaner Steel Mills v. State of Punjab, 2007 (1) R.C.R (Criminal) 773

wherein it was held that no offence under Sections 63 and 64 of the

Copyright Act was made out as no copyright subsisted in the steel bars

produced by TATA TISCON by using TMT technology. Besides, the

offence under the trade and Merchandise Marks Act, was not cognizable

and the police could not register an FIR and investigate the same, the F.I.R

was quashed.

This Court in Satpal v. State of Punjab, 2011(1) RCR

(Criminal) 281 wherein the accused who was manufacturing Ayurvedic

medicines similar to those manufactured by complainant was facing offence Crl. Misc. No. M-9229 of 2009 -4-

under Sections 51, 52, 63 and 64 of Copy Right Act, 1957, held that no

offence under the Copy Right Act was made out.

This Court in Piyara Singh and others v. The State of

Haryana, 2002 (3) RCR Criminal 290 (P&H),had examined the

application of Trade and Merchandise Marks Act and it was held that

offence under Section 78 and 79 of the Act were non-cognizable and and it

could not be investigated by the police. The punishment prescribed for the

aforesiad offence is 2 years, therefore, the offence is non cognizable in

nature. It has been further held that after the coming into force of the Trade

and Merchandise Marks Act, it would be unreasonable to add Section 420

IPC as well for the same very allegations, which were covered by the

aforementioned Act. The observation of this Court in para 6 is as under:-

"Obviously, the very existence of Sections 78 and 79 of the Act which is self contained Act, provides for punishment to the person committing offence under the said Act. It would be improper to use Section 420 IPC by altogether ignoring the provisions of Sections 78 and 79 of the Act. The allegations for committing offence under Section 420 IPC, in the complaint, are so vague in nature that it is mentioned in para 11 of the complaint that, "committing offences punishable under Sections 78-79 of the Trade and Merchandise Marks Act, 1958 and also under Section 420 of the Indian Penal Code." It would also be interesting to note that the complainant did not mention any name in the complaint as an accused person and in para 8 of the complaint, he mentioned only that "the complainant has come to know that certain persons/firms/companies, whose name and addresses are not known to the complainant at this stage, are engaged in the manufacture and sale of girders under the false trade mark JDL and false trade description as to the character and origin of the said goods." The impugned order by the trial Court was passed at the stage when it was proceeding to frame the charge under Section 420 IPC against the petitioners read with Sections 78 and 79 of the Act". Crl. Misc. No. M-9229 of 2009 -5-

Section 115 of the Trade Mark Act, 1999 postulates as under:-

"115. Cognizance of certain offences and the powers

of police officer for search and seizure:- (1) No Court shall

take cognizance of an offence under Section 107 or Section

108 or Section 109 except on complaint in writing made by

the Registrar or any officer authorized by him in writing

Provided that in relation to clause (c) of subsection (1)

of Section 107, a Court shall take cognizance of an offence

on the basis of a certificate issued by the Registrar in respect

of any goods or services in respect of which it is not in fact

registered.

(2) No court inferior to that of Metropolitan Magistrate or

Judicial Magistrate of the first class shall try an offence

under this Act.

(3) The offences under Section 103 or Section 104 or Section

105 shall be cognizable.

(4) Any police officer not below the rank of Deputy

Superintendent of Police or equivalent, may, if he is satisfied

that any of the offences referred to in subsection (3) has been,

is being, or is likely to be, committed, search and seize

without warrants of goods, die, block, machine, plate, other

instruments or things involved in committing the offence,

wherever found, and all the articles so seized shall, as sooon

as practicable, be produced before a Judicial Magistrate of

the first class or Metropolitan Magistrate, as the case may

be;

Crl. Misc. No. M-9229 of 2009 -6-

Provided that the police officer, before making any search

and seizure, shall obtain the opinion of the Registrar on facts

involved in the offence relating to trademark and shall abide

by the opinion so obtained.

(5) Any person having any interest in any article seized under

sub-section (4), may, within fifteen days of such seizure, make

an application to the Judicial Magistrate of the first Class or

Metropolitan Magistrate, as the case may be, for such article

being restored to him and the Magistrate, after hearing the

applicant and the prosecution, shall make such order on the

application as he may deem fit."

As per sub-clause (4) of Section 115 of the Trademarks Act,

1999, no police officer below the rank of Deputy Superintendent of Police

can search and seize goods regarding offence under Sections 103, 104 and

105. Secondly, as per the proviso, the said police officer will have to obtain

opinion of the Registrar on facts involved in the offence relating to

Trademarks Act, 1999 and shall abide by the opinion before such search

and seizure is carried out. In the present case, admittedly the search and

seizure had been done by the Sub Inspector without taking any opinion

from the Registrar. Hence, the proceedings are vitiated. The word "shall" in

the proviso is indication of the fact that the provision is indeed mandatory.

Moreover, the said offences could have only been investigated by the

Officer not below the rank of Deputy Superintendent of Police.

In view of the judgments of M/s Bikaner Steel Mills v. State

of Punjab, 2007 (1) R.C.R (Criminal) 773, Satpal v. State of Punjab,

2011(1) RCR (Criminal) 281 and Piyara Singh and others v. The State Crl. Misc. No. M-9229 of 2009 -7-

of Haryana, 2002 (3) RCR Criminal 290 (P&H), it was held that no

offences under Sections 63 and 65 of the Copy Right Act, 1957 is made out.

The proceedings initiated under Sections 78 and 79 of Trade

Mark Act, 1999 are liable to be quashed as they were not as per Section

115 of the Trade Mark Act, 1999. The offence under Section 420 IPC is not

made out, as violation, if any, are taken care of by proceeding Section 78/79

of Trade Mark Act, 1999

The parameters set out in State of Haryana and others v.

Bhajan Lal and others, AIR 1992 SC 604 (1), S.Khusboo vs.Kanniamal

and another, 2010 (2) RCR (Criminal) 793 and Som Mittal vs. State of

Karnataka, (2008) 3 SCC 574 are applicable for quashing of the F.I.R in

the present case. The power under Section 482 Cr.P.C should be exercised

in the following circumstances:-

(1) Where the allegations made in the First Information

Report or the complaint, even if they are taken at their fact

value and accepted in their entirety do not prima facie

constitute any offence or make out a case against the accused.

(3) Where the uncontroverted allegations made in the FIR or

complaint and the evidence collected in support of the same

do not disclose the commission of any offence and make out a

case against the accused.

(4) Where, the allegations in the F.I.R do not constitute a

cognizable offence but constitute only a non-cognizable

offence, no investigation is permitted by a police officer

without an order of a magistrate as contemplated under

Section 155 (2) of the Code.

Crl. Misc. No. M-9229 of 2009 -8-

(5) Where the allegations made in the FIR or complaint are so

absurd and inherently improbable on the basis of which no

prudent person can ever reach a just conclusion that there is

sufficient ground for proceeding against the accused.

The above parameters are applicable as neither the provision of

Copy Right Act are applicable in the present case nor the offence under

Section 420 is made out, proceedings under Section 78/79 of the Trade

Mark Act, 1999 are vitiated for non-compliance of Section 115 of Trade

Mark Act, 1999 .

FIR No.315 dated 14.7.2008 registered at P.S. Kotwali, Patiala,

under Sections 63 and 65 of the Copy Right Act, 1957, Section 420 IPC and

Section 78/79 of Trade Mark Act, 1999 (added later on) is quashed with all

consequential proceedings arising therefrom qua petitioner.

Accordingly, the petition stands disposed of.

(RITU BAHRI) JUDGE March 22, 2011 G.Arora