Delhi District Court
State vs . Sandeep Chauhan on 5 May, 2009
IN THE COURT OF SH. DIG VINAY SINGH, ACMM03 (IPR), ROHINI, DELHI
FIR NO.268/04
PS KASHMERE GATE/IPR
STATE VS. SANDEEP CHAUHAN
U/S.104 TRADEMARK ACT, 1999
ORDER ON CHARGE
05.5.2009
Pr. Substitute APP for the State.
Accused Sandeep Chauhan is present on bail.
Proceedings against accused no.2 Vicky Talwar already
abated.
Counsel Mr. Ajay Jain,Adv. for the accused Sandeep.
Arguments on Charge heard.
1.Brief facts of the case are that two accused namely Sandeep Chauhan and Vicky Talwar were chargesheeted for the offences u/s.63 of Copyright Act, 1957 as also u/s. 103 & 104 of Trademark Act, 1999. During pendency of the proceedings, accused Vicky Talwar expired and proceedings against him was declared abated vide order dated 24.2.2006.
2. Accused Sandeep Chauhan is claiming discharge.
3. The present FIR no.268/04 at PS Kashmere Gate for the abovesaid offences was registered on the directions of my Ld. Predecessor Court u/s 156(3) Cr. P.C. On the complaint of complainant Durga Suryavanshi who calimed that he is the proprietor of M/s. Suryavanshi Enterprises carrying on the business of electronic goods, VIP horns particularly for use in automobiles. The firm is manufacturing such articles/goods under the trademark "Track" and "Quantum". Complainant also claims that the complainant owns copyright in the artistically designed monogram, layout, getup of this tradename and tradelogo. The artistic work is claimed in artistic design and pattern, getup inside a circle where word of "Suryavanshi" is written on the top portion of the circle and the word Order on charge in State Vs. Sandeep Chauhan, FIR no.268/04 Page no. 1 of 9 dtd.05.5.2009/k "Enterprises" is written on the lower portion of the circle. In the middle of the circle, trademark "Track" is written in the artistic form inside another device in the middle of which there is an arrow mark. Complainant claims that some persons are manufacturing and selling goods with falsified trademark and infringement of the copyright of complainant.
4. On registration of case, a raid was conducted at Sunny Enterprises, 607/2/1, Hamilton Road, Kashmere Gate, Delhi, where on the sale counter of the shop, accused Sandeep Chauhan was present as owner of the shop. From inside the shop, total 44 VIP sirens packed in corrugated boxes and six without boxes were recovered which were bearing trademark "Tarek". It is the case of prosecution that the trademark was deceptively similar to the trademark of the complainant. Accused Sandeep Chauhan was arrested and on his disclosure, accused Vicky Talwar against whom proceedings were abated was apprehended and from whose possession again deceptively similar trademark articles were recovered. Since, accused Vicky Talwar has expired and proceedings against him abated and we are now concerned with accused Sandeep Chauhan only.
5. Ld. Counsel for the accused Sandeep Chauhan filed written arguments seeking discharge on the ground that it is the case of prosecution that the trademark of the complainant was pending registration, therefore, charges cannot be framed. It is next argued that offence of copyright is not made out since copyright does not subsists in mechanically printed boxes/packing material and in support of this argument reliance is placed on Camlin Indian Pvt. Ltd. Vs. National Pencil Industries, AIR 1986, Delhi 444 . It is also argued that the accused Sandeep Chauhan was taking the articles from deceased accused and immediately on apprehension, he disclosed the suppliers particulars and, Order on charge in State Vs. Sandeep Chauhan, FIR no.268/04 Page no. 2 of 9 dtd.05.5.2009/k therefore, u/s.104 Trademark Act, 1999, the accused cannot be charged since he was acting innocently and he was not aware that the trademark violation was being committed and that he bonafidely took goods from deceased accused. It is also claimed that accused was never communicated regarding registration of trademark by the complainant. Accused also claims that earlier also in similar facts, the Court of Sh. J.P.S. Malik, the than Ld. ACMM discharged some other accused of that case on similar facts and circumstances against which revision was preferred before Hon'ble Court of Sessions and the revision was dismissed and, therefore, also the accused cannot be charged.
6. On the other hand, Ld. APP for the State points out that in this case recovery from this accused was effected on 07.6.2004 and aothough at the time of filing of the complaint, the registration of trademark of complainant was pending but the trademark was registered on 15.4.2004 i.e. prior to the date of recovery. It is also claimed that the alleged trademark, relied upon by the accused, that a trademark registration exists in favour of deceased accused Vicky Talwar was although registered with the tradename "Tarek", but it was not pertaining to automobile sirens and it was pertaining to automobiles parts and accessories included in Clause12, whereas trademark of the complainant was specifically registered regarding electronic sirens for vehicles etc.
7. So far as offence u/s.63 of Copyright Act, 1957 is concerned , in the case of Camlin Indian Pvt. Ltd. Vs. National Pencil Industries, AIR 1986, Delhi 444 , Hon'ble Delhi High Court held as follows :
"In the present case, the printed cartons/boxes appear to be mechanically reporoducted one. It cannot be said that any skill or labour has been expended upon the allegedly artistic carton as the same has Order on charge in State Vs. Sandeep Chauhan, FIR no.268/04 Page no. 3 of 9 dtd.05.5.2009/k been produced by mechanical actions of a printing machine, and not by skill and labour having been expended upon them by any natural person. Further, the boxes/cartons in question are not "engraving" as contained in S. (i). Any print obtained from either an offset printing process or by a letter press or in combination of the various printing process including silk printing process cannot amount to an engraving."
8. In the present case also the alleged infringed material on the card boxes are mechanically reproduced and thus charge under sec 63 copy right Act is not made out for the said offence in view of the judgment.
9. However, for the offences under Trademark's Act 1999, primafacie there are sufficient material to frame charges against accused Sandeep Chauhan. Reason are that there is a registered valid trademark in favour of complainant regarding sirens under the trademark "Track". The registration certificate is already on record, whereas the registration of trademark in favour of deceased accused was not regarding this article but regarding other articles i.e. automobiles accessories and automobile parts. The registration of trademark of the complainant is specifically regarding sirens.
10. Even otherwise, lawis well setted that at the stage of charge, only those material which are relied upon by the prosecution can be looked into and the documents filed by the accused cannot be looked into. It was so held in case of State of Orissa vs. Debender Nath Padhi 2005 (1) JCC 109 by a three judge bench of hon'ble SC after considering section 91 of the criminal procedure code held in para 25 "Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is 'necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings' under the code. The first and foremost requirement of the Order on charge in State Vs. Sandeep Chauhan, FIR no.268/04 Page no. 4 of 9 dtd.05.5.2009/k Sec is about the document be necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking section 91 at the initial stage of framing of charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the Sec a police officer may move the court for summoning and production of document as may be necessary at any of the stages mentioned in the Sec. Insofar as the accused is concerned his entitlement to seek order under section 91 would ordinarily not come till the stage of defence. When the Sec talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it whether police or accused. If under section 227 what is necessary and relevant is only the record produced in terms of section 173 of the code the accused cannot at that stage invoke section 91 to seek production of any document to show his innocence. Under section 91 summons for production of document can be issued by court and under a written order of an officer in charge of police station can also direct production thereof. Section 91 does not confer right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof".
11. Ld. counsel for the accused placed reliance on the case of Brindavan Sahu Vs. B. Rajendra Subudhi, AIR 1986 ORISSA 210. The said judgement is of no help to the accused since in that case, the Order on charge in State Vs. Sandeep Chauhan, FIR no.268/04 Page no. 5 of 9 dtd.05.5.2009/k complainant had no registered trademark whereas in our case, there is a registered trademark. Reliance is also placed upon the case of AIR 1965 Allahbad 274, Sheo Ratan Upadhyay Vs. Gopal Chandra Nepall, by the accused , but the said case was regarding u/s. 63 of the Copyright Act, 1957, only and we have already mentioned above that section 63 of Copyright Act, 1957, is not applicable in the facts and circumstances of the present case.
12. Reliance is also placed upon the case of Prem Singh Vs. M/s. Ceeam Auto Industries, AIR 1986 Delhi (233) by the accued but the said case is also of no help to the accused since in that case, it was found that the complainant was not the originator of design and he adopted or imitated the copyright of third party, which is not so in the case before us. Even otherwise if it is so alleged by the accused, the same will have to be proved during evidence and cannot be prejudged without taking evidence.
13. Lastly, reliance is placed upon the case of Glaxo Operations UK Ltd.
vs. Samrat Pharmaceuticals Kanpur, AIR 1984 Delhi 265 by the accused but the said case also does not help the case of accused in any manner.
14. The claim of accused that he has protection u/s.104 of Trademark Act, 1999 is also premature. Section 104 of Trademark Act, 1999 provides that Where an accused proves (emphasis supplied) that he having taken all reasonable precautions against committing the offence, had at the time of commission of offence, no reason to suspect the genuineness of trademark or trade description or that on demand by the Prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or that otherwise he acted innocently are all matters which requires proper proofs which can be Order on charge in State Vs. Sandeep Chauhan, FIR no.268/04 Page no. 6 of 9 dtd.05.5.2009/k done only after evidence and not before it. Whether the accused acted innocently or he had no reason to suspect genuineness can be judged only after evidence and not before it.
15. In such circumstances, when the accused had in his possession for sale goods bearing false trademark, the accused Sandeep Chauhan is liable to be charged for the offence u/s.104 of Trademark Act, 1999.
16. Contention of accused that in a similar case, Mr. J.P.S. Malik, the then Ld. ACMM discharged another accused is without any force since in that case, what was observed was that section 78 & 79 of the Trademark Act, 1999 were noncognizable and once section 63 of Copyright Act, 1957 is not attracted, noncognizable offences could not have been investigated by the police without order of the Court.
17. First of all, in the present case, there is a specific order of the Court for registration of FIR and secondly u/s.115(3) of the Trademark Act, 1999, the offence u/s.104 of Trademark Act, 1999, is a cognizable offence and not a noncognizable offence.
18. Needless to say that law regarding considerations at the stage of charge is wellsettled now. The court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out. It is held that when the material placed before the court discloses great suspicion against the accused which has not been properly explained the court will be justified in framing charge. The judge should not make a roving inquiry into the pros and cons of the matter and weigh the evidence is if he was conducting a trial. If on the basis of materials on record a court could come to the conclusion that commission of the offence is a provable consequence, a case of framing of charge exists. To put it differently, if the courts were to think that the Order on charge in State Vs. Sandeep Chauhan, FIR no.268/04 Page no. 7 of 9 dtd.05.5.2009/k accused might have committed the offence it can frame a charge , though for conviction the conclusion is required to be that the accused has committed the offence. At the stage of framing of a charge probative value of the materials on record cannot be gone into, the material brought on record by the prosecution has to be accepted as true at that stage. The truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under S. 227 or S. 228 of the code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. But at the initial stage if their is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. While deciding the question of framing of charge in a criminal case, the court is not to apply exactly the standard and test which it finally applies for determining the Guilt or otherwise. This being the initial stage of the trial, the court is not supposed to decide whether the materials collected by the investigating agency provides sufficient ground for conviction of the accused or whether the trial is sure to culminate in his conviction. What is required to be seen is whether there is Order on charge in State Vs. Sandeep Chauhan, FIR no.268/04 Page no. 8 of 9 dtd.05.5.2009/k strong suspicion which may lead to the court to think that there is ground for presuming that the accused has committed an offence. Reliance placed on the cases of Union of India vs. Prafulla Kumar AI R 1979 Supreme Court 366 : State of Maharashtra and others vs. Som Nath Thapa and others JT 1996 (4) SC 615 ; State of Bihar v. Ramesh Singh, AI R 1977 S C. 2018: (1 977 CRI LJ 1606) ; Umar Abdula Sakoor Sorathia vs. Intelligence officer narcotic control bureau JT 1999 (5) SC 394 ; Kallu Mal Gupta vs. State 2000 I AD Delhi 107.
19. The trade mark is certainly deceptively similar to the trade mark of the complainant. Accordingly, let charges be framed against the accused Sandeep Chauhan for the offence u/s.104 of Trademark Act, 1999. Charges framed separately to which accused Sandeep Chauhan claims trial.
20. Put up for PE on 27.7.2009.
ANNOUNCED IN OPEN ( DIG VINAY SINGH )
COURT ON 05.5.2009 ACMM03 (IPR)
ROHINI, DELHI/05.5.2009
Order on charge in State Vs. Sandeep Chauhan, FIR no.268/04 Page no. 9 of 9 dtd.05.5.2009/k