Madhya Pradesh High Court
Colgate Palmolive (India) Ltd. vs Shri Satish Rohra And Anr. on 12 August, 2005
Equivalent citations: 2005(4)MPHT337
Author: Rakesh Saksena
Bench: Rakesh Saksena
ORDER Rakesh Saksena, J.
1. Petitioners have filed thisss petition under Section 482 of the Code of Criminal Procedure for quashing the criminal proceedings of the Criminal Complaint R.T. No. 604 of 2000 pending in the Court of Judicial Magistrate First Class, Bhopal, and for quashing the order dated 25-11-1999 passed by the aforesaid Court, taking cognizance of offences punishable under Section 420 of the Indian Penal Code and Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958.
2. Complainant Satish Rohra, a resident of Idgah Hills, Bhopal, filed a complaint against the petitioner-Company, its officers and Directors contending that the petitioner-Company is the manufacturer of the Colgate Dental Cream. Being prompted and induced by the advertisements made by the Company in various newspapers and Television to the effect that by the use of aforesaid Colgate Dental Cream his teeth will remain healthy, he purchased one 50 Grams Carton of Colgate Tooth Paste from Darvesh Medical Store, Bhopal, on 1-2-1999, which he had been using from the past also. He made allegation in the complaint that the aforesaid tooth paste was not being manufactured in the manner it was being advertised and the petitioners were deceiving their customers. According to him, the Carton of the tooth paste bears the statement that it stops "bad breath" and "fights tooth decay" and that the product is a 'non-fluoridated foaming tooth paste', whereas it is a well known scientific fact that among all the inorganic ingredients of tooth paste the only substance that may play a role in fighting tooth decay prevention of cavities is flouride. At any rate the Colgate Dental Cream does not contain such ingredients which are either connected with stopping bad breath or fighting tooth decay. According to him, the aforesaid descriptions were pertaining to standard of quality and the accused/petitioners wrongly claimed their product to behave in a manner in which it was incapable of performing. The statement mentioned on the carton was repeated in advertisements in the news papers, magazines and Television media, creating an impression in the minds of consumers that the aforesaid tooth paste was capable of stopping bad breath and preventing tooth decay. Complainant claimed that the aforesaid description was false and misleading and the said false trade description had been deliberately applied with common intent to increase sales of the tooth paste. He averred that all the accused were financially benefiting from the sale of these illicit products. Thus, the non-petitioner/complainant prayed that the petitioners be punished for the commission of offences under the provisions of Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 and under Section 420 of the Indian Penal Code.
3. Learned Magistrate after recording the statement of complainant under Section 200 of Cr.PC and that of A.W. 2 Jawahar Tahalramani and A.W. 3 Raj Kumar Goswami under Section 202 of Cr.PC, registered the complaint and taking cognizance against the petitioner under the aforesaid offences issued process for their appearance.
4. Aggrieved by the aforesaid order of taking cognizance petitioners have approached this Court for quashing the complaint as well as the order taking cognizance against them. Learned Counsel for the petitioners has submitted that the complainant is a pseudo or proxy complainant and that he has filed the present complaint at the behest and instigation of some trade rival. He has submitted that large number of frivolous identical complaints had been filed in various parts of the country malafidely just to malign the reputation of the petitioner No. 1/Company. He has referred to the copies of various complaints, which were filed before the Magistrate First Class, Belgaum, C.J. M. Wardha, Judicial Magistrate First Class, Nagpur, and Sangamner. He has submitted that on the face of it the aforesaid complaint appears to be false and frivolous. The respondent No. 1 alleged to have purchased a tooth paste of 50 grams at Bhopal on 1-2-1999 and filed the complaint just on the next day, i.e. on 2-2-1999 making allegation that the petitioners/Company was defrauding public at large by making untrue claims about the quality of the tooth paste. The learned Counsel has contended that witnesses examined in support of the complaint have made completely bald and sweeping statements regarding the qualities of the tooth paste without producing any material on the basis of which such allegations could have been substantiated. He further submitted that the complainant did not file any Expert Report or examined any Expert who could have given opinion in the regard. He submitted that the terms 'stop bad breath' and 'fight tooth decay' can not under any circumstances amount to trade description as defined under Section 2(u) of the Trade and Merchandise Marks Act, 1958. He further submitted that from the evidence adduced by the complainant prima facie no offence under Section 420 of IPC was made out. He placed reliance on the ratio of the Apex Court decision in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. and submitted that simple commendation of the quality of goods by the seller to gain purchasers, unless intended to be a warranty, would not amount to unfair trade practice and up to some extent the latitude is allowed in advertisements. He has submitted that since the complainant has not even made an averment in the complaint that the tooth paste did not stop bad breath or failed in controlling the bad breath and fighting tooth decay after using the tooth paste, the complaint is untenable and further the complaint does not disclose the element of cheating, therefore, the provision of Section 420 of IPC cannot be made applicable. Use of the words "stop bad breath -- fighting tooth decay" are being used merely for the promotion and advertisement of the product, it does not amount to any trade description or false trade description, therefore, he prayed that the complaint filed by the non-petitioner and the order of taking cognizance on the said complaint by the Court below be quashed.
5. Learned Counsel for the non-petitioner/complainant refuting the contentions made by the learned Counsel for the petitioners/Company has submitted that the complainant has made clear allegations in the complaint, constituting the offences, which are supported by the evidence of complainant himself as well as witnesses Jawahar Tahalramani and Raj Kumar Goswami. He submitted that mentioning of the words 'stop bad breach and fighting tooth decay' on the carton of tooth paste as well as making advertisement of aforesaid qualities in media clearly show that the petitioners/Company had made false representations and induced the consumers to purchase the tooth paste though the tooth paste did not contain any such ingredient which could have procured the aforesaid results. He submitted that the complainant in his evidence categorically stated that he had used the tooth paste after the purchase, but there was no relief by its use. He submitted that the evidence of complainant was also corroborated by the evidence of witnesses Jawahar Tahalramani and Raj Kumar Goswami. Learned Counsel further submitted that the allegations made in the complaint and the evidence adduced by the complainant were sufficient to make out a prima facie case for taking cognizance against the petitioners/Company, since a clear case of cheating the innocent public including the complainant and giving false trade description on the aforesaid tooth paste clearly disclosed the commission of the aforesaid offences by the petitioners. Learned Counsel placing reliance on the ratio of the case Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. has submitted that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint and the evidence laid in support of the same and has to be only prima facie satisfied as to whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits and demerits of the case.
6. I have heard the learned Counsel of both the parties and carefully perused the evidence and the material on record. Before considering the evidence and the material on record for the limited purpose of finding out whether a prima facie case for issuance of process has been made out or not, it may be mentioned at the very outset that the various documents and the reports filed by the petitioners/Company along with the petition can not be looked into at the stage of taking cognizance or at the stage of framing of the charge. The question whether prima facie case is made out or not has to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. No provision in the Code of Criminal Procedure grants to the accused any right to file any material or document at the stage of taking cognizance or even at the stage of framing of the charge in order to thwart it. That right is granted only at the stage of trial. At this preliminary stage the material produced by the complainant alone is to be considered.
7. In the light of the aforesaid legal proposition, on examining the averments made by the complainant in the complaint, it is found that he had purchased the Colgate tooth Paste just on 1-2-1999 and had filed the impugned complaint on the very next day, i.e., on 2-2-1999. The petitioners had manifestly not proclaimed it to be wonder-drug working out a miracle by curing the malady just by touching the teeth or by its once or twice application. So on the face of it the accusation appears to be ill conceived and malafide.
8. There is also a vague and obscure allegation in the complaint that in the past as well the complainant had used the paste, with no beneficial results. He does not allege to have made any complaint at the time or lodged any report with the police on the occasion. Besides, there is neither allegation nor evidence as to what was the condition of his teeth and also as to how long, and whether regularly, he had used the said paste. There is also no expert evidence tendered by him to show that the composition of the paste did not and could not check bad breath and combat teeth decay. As regard effective results, the impugned advertisements are not alleged to prescribe any time limit nor does the complainant say that he used the paste to such a limit and still did not achieve the beneficent effect. And as respects his witnesses viz., A.W. 2 Jawahar Tahalramani and A.W. 3 Raj Kumar Goswami, they have not stated that their teeth had bad smell and were decaying and that they had not obtained the desired relief by using the paste themselves. It is though another point, rather vital, though no rigid time limit for obtaining decisive results could possibly be laid down which would necessarily vary with each individual according to decaying state of his teeth and bad smell. In this view of the matter it does not appear to be prima facie made out that by the alleged impugned advertisement the complainant had been fraudulently or dishonestly induced to deliver any property (purchase price) to petitioners. On careful reading of the allegations made in the complainant and the evidence adduced by the complainant, I am of the opinion that prima facie no facts constituting the offence under Section 420 of IPC are made out.
9. Learned Counsel for the petitioners has submitted that on the basis of the allegations made in the complaint prima facie the offence under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 are not borne out, and he has placed reliance on the ratio of the decision in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. (supra), wherein the Apex Court has observed :--
"36. In any event, a distinction shall always have to be made and a latitude is allowed in the event of there being an advertisement to gain a purchaser or two. The latitude spoken of, however, can not and does not mean any misrepresentation but by a description of permissible assertion. In this context a passage from Anson's Law of Contract (27th Edn.) may be of some relevance and the same is quoted herein below :--
"Commendatory expressions, such as advertisements to the effect that a certain brand of beer 'refreshes the parts that other beers cannot reach', or that an aftershave lotion is irresistibly attractive to the opposite sex, are not dealt with as serious representations of fact. A similar latitude is allowed in private contracts to a man who wants to gain a purchaser, though it must be admitted that the borderline of permissible assertion is not always easily discernible. At a sale by auction, land was stated to be 'fertile and improvable'; it was in fact partly abandoned and useless. This was held to be 'a mere flourishing description by an auctioneer', (Dimmock v. Hallett). But where in a sale of a hotel the property was said to be let to 'a most desirable tenant', whereas his rent could only be obtained under pressure and was currently much in arrear, such statement was held to entitle the purchaser to rescind the contract." (Smith v. Land and House Property Corporation).
37. Further, assuming there was in fact an express warranty but that by itself would not necessarily result from a "simple commendation of the quality of goods by the seller" : for in this case the rule of civil law, "simplex commendation non obligate" -- simple commendation can only be regarded as a mere invitation to a customer without any obligation as regards the quality of goods : every seller will naturally try and affirm that his wares are otherwise good to be purchased unless of course the same appears to be on evidence that the commendation was intended to be a warranty. The popular English saying "in a purchase without warranty, one's eyes, tastes and senses must be his protector" has its definite connotation and its application in matters of the nature as the present one."
10. In the light of the above proposition of law it can be said that the advertiser is permitted to indulge in some amount of exaggeration or hyperbole. Such type of advertisement shall neither amount to be a warranty nor a false trade description. The expression "trade description" as defined in Section 2(u) of the Trade and Merchandise Marks Act is as follows :--
"2. Definitions and Interpretation.-- (1) In this Act, unless the context otherwise requires,--
(u) "trade description" means any description, statement or other indication direct or indirect,--
(i) as to the number, quantity, measure, gauge or weight of any goods; or (ii) as to the standard of quality of any goods, according to a classification commonly used, or recognised in the trade; or (iii) as to fitness for the purpose, strength, performance or behaviour of any goods, being "drug" as defined in the Drugs Act, 1940, or "food" as defined in the Prevention of Food Adulteration Act, 1954; or (iv) as to the place or country in which or the time at which any goods were made or produced; (v) as to the name and address or other indication of the identity of the manufacturer or of the person for whom the goods are manufactured; or (vi) as to the mode of manufacture or producing any goods; or (vii) as to the material of which any goods are composed; or
(viii) as to any goods being the subject of an existing patent, privilege or copyright; and includes--
(a) any description as to the use of any mark which according to the custom of the trade is commonly taken to be an indication of any of the above matters;
(b) the description as to any imported goods contained in a bill of entry or shipping bill;
(c) any other description which is likely to be misunderstood or mistaken for all or any of the said matters;"
On evaluating the allegations in the light of the statements made by the complainant and the witnesses before the Court of the Magistrate, I find that the ingredients of the alleged offences are not discernible and there is total lack of material to constitute the aforesaid offences. The aforesaid factual position clearly shows that the complaint is nothing but a sheer abuse of the process of the law and this is a fit case for invoking the powers under Section 482 of Code of Criminal Procedure.
11. Thus, the petition is allowed and the criminal proceedings initiated in the Court of the Judicial Magistrate First Class, Bhopal R.T. No. 604 of 2000 as well as the impugned order dated 25-11-1999 taking cognizance on the basis of the complaint are quashed.