CALCUTTA WIRE NETTING INDUSTRIES VS RAMESHWAR DAYAL GUPTA

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 27thOctober, 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?

1         To be referred to the Reporter or not? Yes

2         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 soleproprietor Madan Lal Arora had filed a complaint under Crl. R.P.225/2002 Page1 of 7 Sections 78 & 79 of the Trade & Merchandise Act 1958 as also underSection 63 & 64 of the Indian Copy Right Act 1957 and under Section 420 of theIPC. This complaint was filed against certain unknown persons. The allegationsin 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 nettingin the year 1964 and had been continuously using the same since up to the dateof the filing of the complaint. Business carried on by the complainant firm wasextensive and goods bearing its trade mark were in high demand in the marketon account of its quality and precision. Complainant firm vide applicationNo.537068 had applied for registration of this trade mark "TIGER BRAND" on1.9.1997. Complainant firm is the owner of the artistic work in theaforementioned trade mark titled "TIGER BRAND" label with the device of TIGERas the same being original in character.

2         On 29.3.1998 a search and seizure order was passed by the concerned Courtbefore whom the complaint had been filed. Pursuant to the search warrantsarticles bearing falsified mark "TIGER" were recovered from the possession ofthe accused Rameshwar Dayal Gupta from premises of M/s Gupta Industrial Crl.R.P.225/2002 Page 2 of 7 Corporation No.2, Gali no.9, Anand Prabhat, New Delhi.Recoveries were also effected from the possession of Satish Gupta on 30.3.1998from premises no.1101,1102, Rucka Hajrasmal Mohalla Sita Ram Bazar, Delhi.Further recoveries were also made from the possession of accused Bharat BhushanGupta 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 Dayalagainst the aforestated application of the complainant seeking registration of

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his trade mark. As per the complainant the communication of this notice ofopposition had been made to the petitioner on 11.6.1999 only and this isevident from the endorsement on page no.137 of the documents filed along withthis petition. It is submitted that this notice of opposition having been filedby Rameshwar Dayal was not within the knowledge of the petitioner till11.6.1999 and that is why it did not find mention in the complaint filed by himon 27.1.1998.

1         It is further submitted that the registration of a trade mark is not acondition precedent for initiation of an action under Section 78 & 79 of theTrade Mark & Merchandise Act 1958; for this proposition reliance has beenplaced upon State of U.P. vs. Crl. R.P.225/2002 Page 3 of 7 Ram Nath AIR 1972SC 232 as also the proposition as laid down in the judgment, Century Tradersvs. Roshan Lal Duggar Co. AIR 1978 Delhi 250.

2         Order impugned before this court is the order dated 27.3.2002 vide which therespondents i.e. Rameshwar Dayal, Satish Gupta and Bharat Bhushan Gupta hadbeen discharged. Finding of the court below was primarily on two counts:− i.Complainant was not a registered owner of the trade mark. ii. Concealment ofmaterial facts.

          6. Perusal of the record and submissions made by the petitioner substantiatehis 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."

3         It is thus clear that the registration of a trade mark is not a conditionprecedent for the initiation of a complaint under Sections 79 & 79 of the TradeMark & Merchandise Act

4         Second finding of the Trial Judge is also an erroneous finding as thedocuments filed on record prima facie show that the notice of oppositionpurportedly filed by Rameshwar Dayal Crl. R.P.225/2002 Page 4 of 7 on3.12.1997 had been communicated to the petitioner only on 11.6.1999; that iswhy it did not find mention in the complaint which was filed on 27.1.1998. Thisis no suppression of material facts.

5         The petitioner along with his complaint has filed various documents insupport of his submission that he has been using this trade mark since February1967. These includes an application for interim injunction filed in SuitNo.234/96 by the petitioner against M/s Soni Udhyog. The High Court whilegranting the ad interim injunction in favour of the plaintiff had held that theplaintiff has placed on record prima facie sufficient material sufficient toshow 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 areputation/goodwill with the use of the trade mark "TIGER BRAND" brand inrespect of wire netting.

10 Section 78 of the Trade Mark and Merchandise Act relates to the making offalse marks and Section 79 relates to the sale, exposure or possession of theoffending marks. Both the offences are statutory offences; mens rea anddishonest intention is not a necessary ingredient. In Mohamod Khalil Vs. Crl.R.P.225/2002 Page 5 of 7 State of Maharashtra & Anr. 1982 PTC 411 while dealingwith the provisions of Section 78 & 79 of the aforestated Statute it had beenheld that for an offence under the statutory Act the principle of mens reacannot be applied with the same rigor; statutory offences have to be determinedin the circumstances and the conditions prescribed by the statute.

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

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petitioner had a prior user, goodwill, reputation and proprietary right in the
said trade mark i.e. "TIGER BRAND".

1         At the stage of framing of charge the details of all the material which theprosecution will produce or rely on during the stage of trial are not expectedto be produced or referred to before the learned judge at the time of openingof the case for the prosecution. Under Section 227 and 228 of the CriminalProcedure Code the court has to satisfy itself that the accusation made againstthe accused person is not frivolous and there is some material for proceedingsagainst him; the stage prior to the framing of a charge is not expected to be adress rehearsal of a trial.

2         The impugned order clearly calls for interference. Prima facie, theingredients of the offences as mentioned in the Crl. R.P.225/2002 Page 6 of 7complaint are made out against the accused persons. Impugned order beingillegal and based on erroneous finding; it is liable to be set aside; revisionpetition is allowed.

3         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
Crl. R.P.225/2002 Page 7 of 7

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