1. Heard both counsel.
The petitioner has filed this petition under section 482 of the Code of Criminal procedure for setting aside the order dated 6-12-1991 passed by the III Addl. Chief Judicial Magistrate, Mysore, in C.C. No. 3680-1988, ordering framing of charges against the accused under Section 120-A, 120-B and 420 of IPC.
2. In the Court below, the petitioner is accused No. 2 and 1st respondent is the Complainant Accused No. 1 Syed Khasim having died, is not made a party in this Revision Petition. The facts leading to the filing of this petition briefly stated are as follows :
The complainant is said to be the proprietor of Mysore Lakshmi Beedi Works, Maddur, According to him, it is a well established firm enjoying immense reputation and good sales of his beedies. Accused Nos. 1 and 2 are also said to be traders in beedies at Mandya, carrying on business under different trade names. Having come to know that accused persons were selling their beedies by using the trade mark of the complainant i.e., 'Mysore Lakshmi Beedies' the complainant filed a private complaint against them in PCR No. 27/88 before the III Addl. Chief Judicial Magistrate, Mysore City for committing of offences under sections 420, 479 to 482, 486, 120-A and 120-B of IPC and also under sections 76, 77, 78, 79 and 85 of the Trade & Merchandise Marks Act 1958.
3. On receipt of the said complaint, the learned Magistrate referred the same to PSI, Nazarabad P.S. Mysore for investigation and report. The Police having investigated into the said complaint, filed a charge-sheet against A-1 and A-2 for the offences under sections 420, 120-A and 120-B of the Indian Penal Code. Since accused No. 1 had died by then, the Court proceed against accused No. 2. Arguments were heard regarding charges. Thereupon, the learned Magistrate by his order dated 6-12-1991 ordered framing of charges against A-1 for offences under Sections 420, 120-A and 120-B of IPC.
According to the prosecution, accused No. 2 being a trader in beedies deceitfully used the Trade Mark of the complainant on his beedi bundles and accused No. 1 was selling the same in the market.
4. Sri. S. N. Bhat, learned counsel for the petitioner, submitted that the learned Magistrate committed an error in ordering framing of charges against the petitioner for offences under sections 420, 120-A and 120-B of IPC. He further submitted that even if the accused had used the Trade Mark of the complainant i.e., 'Masore Lakshmi Beedies' the beedies manufactured by him, he could not have been prosecuted for offences under sections 420, 120-B of IPC in view of the express provisions contained in Chapter X of the Trade and Merchandise Marks Act, 1958 relating to the offences under the said Act. He submitted that Sections 420, 120-A and 120-B of IPC were wholly inapplicable to the facts of the case and, as such, the learned Magistrate committed a grave error in ordering framing of charges against accused No. 2 for the commission of offence under sections 420, 120-A and 120-B of IPC. He further submitted that the learned Magistrate was wholly in error in ordering framing of a charge under section 120-A of IPC which only defines a criminal conspiracy. He also submitted that in view of Section 105 of the Trade and Merchandise Marks Act, 1958 the learned Magistrate ought not to have entertained the complaint.
5. On the other hand, Sri A. R. Srinivas Rao, learned counsel for respondent No. 1 contended that the Criminal Petition filed by the petitioner for quashing of the impugned order is not maintainable; and the impugned order being an Interlocutory order cannot be challenged; and the learned Magistrate is right in ordering framing of charges against accused No. 2 for offences under sections 420, 120-A and 120-B of IPC. In support of his contentions, he relied on some decision to which I will advert a little later.
6. As rightly submitted by Sri S. N. Bhat, the learned Magistrate was wholly in error in ordering framing of charges against accused No. 1 for an offence under section 120-A of IPC. Section 120-A gives the definition of a criminal conspiracy which is made punishable in the manner provided under section 120-B of IPC. Therefore, he could not have framed a charge against the accused under section 120-A of IPC.
7. Coming to Section 120-B of IPC, it is clear from the very section that this section applies to a person who is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards. According to the complaint as well as the Police challan, accused No. 2 had used the Trade marks of the complainant i.e., Mysore Lakshmi Beedies on his beedies meaning thereby that he contravened Sections 78 & 79 of the Trade and Merchandise Marks Act, 1958. Section 78 of the Trade and Merchandise Marks Act provides for punishment with imprisonment for a term which may extend to two years or with fine or with both. From a plain reading of Section 78 of the said Act it is clear that it does not provide for rigorous imprisonment for a term of two years or upwards. In order to attract Section 120-B of IPC it is necessary that an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards must have been committed by the person concerned. No doubt Section 420 of IPC provides for imprisonment of either description for a term which may extend to seven years and fine. Further, it is not possible to make out from the impugned order as to when the accused entered into a criminal conspiracy to commit an offence under section 420 of IPC.
8. As regards the framing of a charge under section 420 of IPC., it has to be stated that in view of Sections 78 and 79 of the said Act providing penalty for applying false trade descriptions etc., and selling goods to which a false Trade Mark or false trade description is applied, a charge under section 420 of IPC becomes wholly inapt. Section 420 of IPC reads thus :
'Cheating and dishonestly inducing delivery of property, - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter of destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment or either description for a term which may extend to seven years and shall also be liable to fine'.
Though there is an element of cheating in falsely applying to his goods the Trade Mark of another person or Company it cannot be said that such an act itself would attract Section 420 IPC. When there are specific provisions in the Trade and Merchandise Marks Act which is a self contained Act to punish the persons committing offences under the said Act, it would be improper to resort to Section 420 of IPC, altogether ignoring those provisions. It is not possible to make out from the impugned order how and on what material a charge was ordered to be framed against the accused for an offence under section 420 of IPC.
9. Section 105 of the said Act deals with rights flowing from the entitlement to use the property of others and filing of suits regarding infringement and passing-off action. Whereas Section 106 deals with reliefs in suits for infringement or for passing-off which a Court can grant. In my view, either Section 105 or 106 do not take away the power or jurisdiction of a Criminal Court in respect of offences committed under the Trade and Merchandise Marks Act. The scope and ambit of Sections 105 and 106 of the Trade and Merchandise Marks Act, 1958 are altogether different from Chapter X of the Trade and Merchandise Marks, Act, 1958. Sections 105 and 106 of the said Act do not affect the jurisdiction of the criminal Courts to punish the persons committing offences under Chapter X of the said Trade and Merchandise Marks Act, 1958. Therefore, there is no substance in the contention of the learned counsel for the petitioner that in view of Section 105 of the Trade and Merchandise Marks Act, 1958 the aggrieved party has to approach only a Civil Court and not a Criminal Court. The complainant, in his complaint has also stated that the accused among other offences also committed offences under sections 76, 77, 78, 79 and 85 of the Trade and Merchandise Marks, Act, 1958. No doubt, in the charge-sheet filed by the Police, the offences mentioned against the accused are only under sections 420, 120-A and 120-B of IPC. But that should not have deterred the learned Magistrate from applying his mind to the facts of the case keeping in view the provisions contained in the Trade and Merchandise Marks Act, 1958 and framing appropriate charges in the light of the allegations contained in the complaint and the materials collected by the Police during investigation.
10. Chapter X of the Trade and Merchandise Marks Act, 1958 deals with offences, penalty therefor and the procedure relating thereto. Sections 76 and 77 are in the nature of definitions. Sections 78 to 83 prescribes the penalty for various offences. Sections 84 lays down the cases where no offence shall be deemed to have been committed under Sections 77 to 79. Section 89 provides for the procedure for, and the Court entitled to take cognizance of offences under sections 81 to 83. The provisions analogous to the matters referred to in Chapter X were previously contained in the Indian Merchandise Marks Act, 1889, now repealed and incorporated in this Act. The provisions of this Chapter are aimed against false marking of goods and the application to goods of deceptive marks or deceptive Trade descriptions. The provisions relating to offences and penalties relating to Trade Marks were originally contained in Sections 478, 480, 482, 486 of the Indian Code relating to Trade Marks and property marks. The reference to Trade Marks in the said Sections was removed by the schedule under section 135 to the Act. Section 482 of IPC provides punishment for using a false property mark; whereas Section 486 provides punishment for counterfeiting property mark used by another.
A Trade Mark as denied under section 2(1)(j) of the Trade and Merchandise Marks Act, 1958 means a mark in relation to the goods for the purpose of indicating a connection in the course of Trade between the goods and some person having the right to use that mark. On the other hand, a property mark under section 479 of IPC means a mark for denoting that a moveable property belongs to a particular person, whereas Trade Mark denotes manufacture or quality of goods to which it is attached, the property mark denotes the ownership in them.
It is not clear either from the complaint or the impugned order whether the complainant had got his Trade Mark registered. However, in State of Uttar Pradesh v. Ramanath, : 1972CriLJ52 the Supreme Court held that a Trade Mark includes a registered as well as unregistered Trade Mark and an offence under sections 78 and 79 therefore relates to a Trade Mark whether it is registered or unregistered. The offences under these Sections consist in deception and application of a Trade Mark which is in use and which signifies a particular type of goods contained in the Mark.
11. Sri. Srinivasa Rao, learned counsel for the respondent, argued in support of the impugned order and contended that the petitioner could not have filed a petition under section 482 Cr.P.C. for quashing of the charges and as such the same is not maintainable. Elaborating his contentions he relied on the following decisions : (1) Bupinder Kumar Bhatnagar v. State, 1975 Cr LJ 1185 (2) Krishnamurthy T. v. Shyam Rao K., 1977 (2) Kar LJ 263 : (1978 Cri LJ 459) (3) Amar Nath v. State of Haryana, : 1977CriLJ1891 and (4) V. C. Shukla v. State, : 1980CriLJ690 . That contention in my view has to be rejected as one without any basis. I have gone through these decisions. They either related to the maintainability of a revision petition or an appeal being filed against an order to frame charges. Therefore, in my view, no useful purpose would be served by adverting to those decisions.
12. Section 482 Cr.P.C. deals with giving of inherent powers to High Court. No doubt, it is well settled that the inherent power at an interlocutory stage should be exercised sparingly and with circumspection to correct patent illegalities or some miscarriage of justice is shown. In my view, the wrong approach to the case by the Court below is not only a patent illegality but it has resulted in miscarriage of justice. Hence I am of the view that this petition is maintainable.
13. Sri Srinivasa Rao, learned counsel for the respondent, submitted that there is sufficient material against the accused for the commission of offences under the Act and, as such, the learned Magistrate was justified in ordering framing of charges against the accused-petitioner for offences under sections 120-A and 120-B and 420 of IPC.
14. Admittedly, the first accused is the proprietor of 'Mangalore Lakshmi Beedi Works' and according to the prosecution he used the design, specifications and label of 'Mysore Lakshmi Beedies' with a view to falsely apply the said Trade Marks to his beedies in order to improve the sale of his beedies in the market. The alleged offences will have to be decided in accordance with the provisions contained in the Trade and Merchandise Marks Act, 1958.
15. For the reasons stated above, I am of the view that the impugned order cannot be sustained. But, it does not mean there is no prima facie case against the petitioner-accused for the commission of certain offences under the Trade and Merchandise Marks Act, 1958.
16. In the result, the petition is allowed and the charges framed against the accused by the learned Magistrate are hereby quashed. However, the matter is remitted back to the learned Magistrate for passing an appropriate order regarding charges against the accused persons keeping in view the discussion herein before the provisions of the Trade and Merchandise Marks Act, 1958 and the material collected by the Police during investigation after hearing both parties once again.
17. Order accordingly.