Karnataka High Court
Sri T V Venugopal vs N G Subbaraya Setty on 20 September, 2018
CRL.P.NO.1545/2015
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL PETITION NO. 1545 OF 2015
BETWEEN:
SRI T.V.VENUGOPAL
S/O LATE T.V.KRISHNAIAH SETTY
AGED ABOUT 60 YEARS
PROPRIETOR
M/S ASHIKA INCENSE INC.,
NO.3911, 14TH CROSS
9TH MAIN CORNER, K.R.ROAD
BANASHANKARI 2ND STAGE
BANGALORE - 560 070 ... PETITIONER
(BY SRI BASAVARAJU S., ADV.)
AND
N.G.SUBBARAYA SETTY
S/O LATE N.H.GOVINDARAJA SETTY
AGED ABOUT 65 YEARS
PROPRIETOR,
M/S N.G.SUBBARAYA SETTY & SON
NO.1/1, 1ST CROSS, SHANKARPURAM
BASAVANAGUDI
BANGALORE - 560 004 ... RESPONDENT
(BY SRI N.P.KALLESH GOWDA, ADV.,)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS
INITIATED BY THE RESPONDENT IN PCR NO.321/2001
REGISTERED AS C.C.NO.20249/14 ON THE FILE OF IX ACMM,
BANGALORE FOR THE OFFENCES P/U/S 104 OF THE TRADE
CRL.P.NO.1545/2015
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OF MERCHANDISE MARKS ACT, 1958 AND SEC.63 OF THE
COPY RIGHT ACT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Whether the proceedings in C.C.No.20249/2014 on the file of the IX Additional Chief Metropolitan Magistrate (ACMM), Bengaluru against the petitioner amount to abuse of the process of the Court and taking cognizance in the said case is sustainable, is the question involved in this case.
2. Petitioner and respondent are the manufactures and traders of Incense sticks. Petitioner's trade name is M/s. Ashika Incense Inc., and respondent establishment's name is M/s. N.G.Subbaraya Setty & Sons. The respondent was marketing his products under the trademark "Eenadu". In 1986, he got registered the said trademark with the Registrar of Trade Marks, Chennai for marketing his products. The said registration was valid upto 1993. CRL.P.NO.1545/2015 3
3. The petitioner started to market his products under the trade mark "Eenadu" in 1995. Before he started to market his products under the said trade mark, the petitioner applied to the Trade Mark Registry to verify whether anybody owns the trademark "Eenadu". The Trade Mark Registry issued Certificate as per annexure-W dated 07.03.1996 stating that such trademark is not registered in anybody's favour.
4. Thereafter, in the year 2000 one Ushodaya Enterprises Limited filed O.S.No.555/1999 against the petitioner before II Additional Chief Judge, City Civil Court, Hyderabad contending that they are the holders of trademark "Eenadu" and by marketing its product under the said trademark the petitioner has infringed its trademark. The said suit came to be decreed on 24.07.2000, permanently restraining the petitioner from marketing its product under the trademark "Eenadu". CRL.P.NO.1545/2015 4
5. The petitioner challenged the said judgment and decree before the High Court of Judicature, Andhra Pradesh in CCCA.Nos.178 & 180/2000. The learned Single Judge of Andhra Pradesh High Court vide order Annexure-C dated 29.12.2000 allowed the appeals of the petitioner and dismissed the suit.
6. Aggrieved plaintiff namely Ushodhaya Enterprises Limited challenged the said judgment of the Single Judge in LPA Nos.12 & 13/2001 before the Division Bench of High Court of Judicature, Andhra Pradesh. The Division Bench of High Court of Judicature, Andhra Pradesh vide judgment and order Annexure-D dated 15.06.2001 confirmed the judgment and decree passed in O.S.No.555/1999.
7. The petitioner challenged the said judgment and order before the Hon'ble Supreme Court in Civil Appeal Nos.6314 & 6315/2001 which came to be dismissed vide order annexure-E dated 03.03.2011. CRL.P.NO.1545/2015 5 It is submitted that Ushodaya Enterprises Limited had the benefit of the interim injunction order against the petitioners in those proceedings right from the trial Court till the disposal of the Civil Appeals by the Hon'ble Supreme Court.
8. Pending the aforesaid proceedings the respondent vide plaint Annexure-J filed O.S.No.3200/2000 against the petitioner before the City Civil Court, Bangalore for permanent injunction against passing of the petitioner's goods under the trade mark "Eenadu" and for accounts and damages etc. Petitioner also filed O.S.No.8029/2000 against the respondent before the XVIII Additional City Civil Judge, Bangalore for permanent injunction against marketing of incense sticks under the trade mark of "Ashika's Eenadu".
9. The respondent's suit in O.S.No.3200/2000 came to be dismissed for non-prosecution on 24.08.2010 vide order annexure-Q. Whereas the CRL.P.NO.1545/2015 6 petitioner's suit in O.S.No.8029/2000 against the respondent came to be decreed on 03.03.2011 vide judgment annexure-V.
10. When such proceedings were going on, the respondent filed a complaint in Case No.20/2000 under Section 50 of the Act before the Copyrights Board against the petitioner for cancellation of "Enadu" copyright of the petitioner on the ground that his trademark is already registered and published in trademark journal on 01.10.1988. The Copyright Board vide order annexure-P which is communicated under the letter dated 09.09.2003 rejected the application of the respondent.
11. Amidst these long driven litigations between the parties, the respondent filed P.C.R.No.321/2001 before the IV Additional Chief Metropolitan Magistrate, Bangalore vide annexure-W seeking prosecution of the petitioner for the offences punishable under Sections CRL.P.NO.1545/2015 7 64, 77 of the Trademarks Act, Sections 482 to 485 and 420 of I.P.C., Sections 63 to 66 of Copyrights Act.
12. The learned Magistrate referred the complaint to the Jurisdictional Police/Banashankari Police for investigation under Section 156 of Cr.P.C. Banashankari Police after conducting the investigation filed 'B' summary final report as per annexure-Y on 18.02.2011. In the said report the Investigating Officer referring to the aforesaid Civil proceedings between the parties and the order of the Copyright Board and the Hon'ble Supreme Court proceedings between the petitioner and Ushodaya Enterprises Limited, submitted that the dispute is civil in nature and the parties have to get the dispute settled by adjudication before the Civil Court and no offence has been made out. The Investigation Officer also stated that the registration of Copyright of the respondent's trademark was valid from 1986-1993 and that was expired.
CRL.P.NO.1545/20158
13. Respondent filed an application in the year 2000 for renewal of his trademark and that was renewed retrospectively from the year 1993 till 2007. The learned Magistrate issued notice of final report annexure-Y to the respondent. Respondent filed his protest petition to the 'B' summary report. In support of the protest petition the respondent got examined himself before the learned Magistrate as P.W.1 on 11.02.2014 and 21.04.2014.
14. On examining, the respondent as aforesaid, the learned Magistrate vide order annexure-A dated 17.07.2014 rejected the 'B' report Annexure-Y and took cognizance and ordered to issue summons to the petitioner to face the trail for the offence punishable under Section 104 of Trademarks Act 1958 and Section 63 of the Copyright Act.
CRL.P.NO.1545/20159
15. Paragraph 5 of the said order contains the reasons for rejecting the final report which reads as follows:
"I have carefully perused the sworn statement of the PW1 coupled with above referred documents. From the sworn statement of the PW1 coupled with the documents prima facie indicating that the complainant has obtained trade mark certificate over his incense sticks product by name E-nadu and as on today the said certificate is in force and the said certificate has been renewed from time to time. Further, the documents produced by the complainant indicating that the accused person has applied for trademark certificate to sell incense sticks in the brand name E- nadu which is similar to the brand name of complainant company and he was only issued temporary certificate. Further, the sworn statement of PW1 indicating that the accused person was also selling the incense sticks in the product name as E-nadu which is similar to the product of complainant by violating trademark rules and copyright. In my opinion, there are sufficient grounds to proceed against person for the offences under Trade mark as well as under
Copyright Act only. I have carefully perused the 'B' report. In my opinion, the concerned police have not properly investigated the matter and as such, the 'B' report filed in this case is liable to be rejected. Hence, I proceed to pass the following."
(Emphasis supplied) CRL.P.NO.1545/2015 10
16. The only reason assigned by the learned Magistrate to reject the police report is that Investigating Officer has not properly investigated the matter. The learned Magistrate while holding so, does not refer the Civil proceedings between the petitioner and the respondent and before the petitioner and Ushodaya Enterprises Limited as well as the statement of P.W.1.
17. He does not even say how the report is improper and what is the impropriety. It is material to note that, the complaint is filed in the year 2001. The learned Magistrate passed the impugned order in the year 2014 that is after the lapse of 14 years. Taking of cognizance and issuance of process is of Judicial act. Section 204(1) of Cr.P.C reads as follows:
"204. Issue of process.-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-CRL.P.NO.1545/2015 11
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction."
18. Thus, it is clear that the learned Magistrate can take cognizance and issue process only after satisfying that there is sufficient ground to proceed against the accused. The mere statement in the order that there is sufficient ground to proceed against the accused is not sufficient before the learned Magistrate to reject the 'B' report. The order should show that learned Magistrate has considered the material placed by the Investigating Officer along with the final report objectively.
19. The Investigating Officer had submitted the summary of the proceedings in the Civil suit between the parties and the order of the Copyright Board. The learned Magistrate does not refer to those orders and CRL.P.NO.1545/2015 12 say, after dismissal of the suit of the respondent and his failure before the Copyright Board, how the act of the petitioner marketing his products under the name of "Eenadu" prior to 2000 amounted to violation of Section 104 of Trademarks Act, 1958 and Section 63 of Copyright Act.
20. Apart from that the learned Magistrate did not notice that there were material admissions in the statement of P.W.1. P.W.1 in his statement clearly admitted that the accused was not marketing the products under the disputed trademark/trade designs after filing of the complaint. He further stated that after seizure of its products, on the petitioner's application the Court granted the custody of the seized products on undertaking of the petitioner that he liquidates those products and after liquidation of those products the petitioner completely stopped marketing its products under the trademark of "Eenadu".
CRL.P.NO.1545/201513
21. It is admitted that the Copyright Board rejected the complainant's application. PW-1 also admitted that the suit filed by the complainant against the accused came to be dismissed and another criminal case filed against the accused ended in acquittal. Again he admitted that since 2002, the accused is not marketing his products under brand "Eenadu". Without considering all such admissions the learned Magistrate proceeded to issue summons to the petitioner to take up the trial for the offence punishable under Section 104 of Trademarks Act and Section 63 of the Copyright Act. The learned Magistrate failed to note that from 1993 till 2000 the registration of the trademark of the complainant was not in force.
22. Thus, the impugned order of taking cognizance is without application of mind. Further the complainant despite the dismissal of suit for non- prosecution as long back as in the year 2002 did not pursue the matter. The dispute was purely Civil in CRL.P.NO.1545/2015 14 nature. Complainant parallelly proceeded against the petitioner before Civil Forum and despite the dismissal of the suit for non-prosecution ventured to file protest petition and got himself examined.
23. The Hon'ble Supreme Court in Indian Oil Corporation Vs. NEPC India Ltd and others (2006) 6 SCC 736 held that there is growing tendency in the business circles to convert purely civil disputes into criminal cases abusing the process of the Court. In paragraphs 13 and 14 of the said judgment, it is held as follows:
"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an CRL.P.NO.1545/2015 15 impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri vs. State of UP [2000 (2) SCC 636], this Court observed :
"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a CRL.P.NO.1545/2015 16 prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."
(Emphasis supplied)
24. In view of the above Judgment and discussion, it is clear that the protest petition and pursuance of the same by the respondent was abuse of process of the Court. The order of issuance of process was the outcome of total non application of mind. Therefore the petition is allowed.
25. Proceedings in P.C.R.No.321/2001 which is pending in C.C.No.20249/2011 before the IX Additional CRL.P.NO.1545/2015 17 Chief Metropolitan Magistrate (ACMM), Bengaluru are hereby quashed.
Complaint in P.C.R.No.321/2001 is rejected with cost of Rs.10,000/- payable to the High Court Legal Services Committee within four weeks from the date of receipt of copy of this Order.
Sd/-
JUDGE HR