Telangana High Court
Mr.Manjo Kumar Agarwal vs State Of Telangana on 18 January, 2023
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.9032 OF 2022
ORDER:
1. This Criminal Petition is filed to quash the proceedings against the petitioners/A1 to A3 in FIR No.433 of 2022 on the file of Begumpet Police Station.
2. The petitioners are questioning the registration of FIR for the offence of cheating punishable under Section 420 of IPC an Sections 63 and 65 of Copyright Act, 1957 (for short 'the Act').
3. Briefly, the case of the 2nd respondent/informant is that he is the authorized person on behalf of 'KITPLY Industries Limited', working as a Regional Manager to lodge the complaint. KITPLY Industries has given exclusive licence for the purpose of manufacturing and selling brand name KITPLY to 'Pashupathi Everest Plywood' owned by the petitioners. The said licence was valid till end of March, 2022.
4. On 16.09.2022, KITPLY company came to know that petitioners supplied one truck load in the name of 'KITPLY' to 2 Sri Pandit Plywood Hardware and it was brought to the notice of KITPLY company. The authorization of selling in the name of KITPLY has expired but the petitioners continued to manufacture plywood by branding it as KITPLY without authorization. Though the licence deed has expired, the petitioners with a fraudulent intention, continued to exploit the trade mark (KITPLY). The said acts of these petitioners amounts to counterfeiting their trade mark KITPLY for which reason of cheating and violation of Copyright Act, complaint was filed.
5. Sri C.Nageshwar Rao, learned Senior Counsel appearing on behalf of Sri Sricharan Telaprolu, learned counsel for the petitioners submits that there is no basis for registration of the present crime for the offence punishable under the provisions of either Indian Penal Code or under the Copyright Act. According to him, the meaning of Copyright is narrated under Section 14 of the Act. Admitting the allegation made in the complaint, it does not fall within any of the clauses mentioned in Section 14 of the Act, for which reason, there cannot be any 3 prosecution for the offence under Sections 63 and 65 of the Act of 1957. He further argued that if at all the alleged offences are under the provisions of the Trade Marks Act, 1999, there is a prohibition by the court from taking cognizance of any offence under the Trade Marks Act except on a complaint made in writing by the Registrar or the Officer authorized by him in writing. In the said circumstances, the registration of crime by the police is contrary to the provisions of the Act. Further, any Police Officer not below the rank of Deputy Superintendent of Police or equivalent, may seize any property violating the provisions of Trade Marks Act, but the same has to be produced before the Judicial Magistrate. However, proviso to Section 115 (4) of the Trade Marks Act, 1999 mandates that such Police Officer shall obtain the opinion of the Registrar and shall abide by the opinion so obtained. In the present case, the crime was registered by the Inspector of Police and handed over the investigation to Sub- Inspector of Police, which is in utter violation of the provisions under Section 115 of the Trade Marks Act.
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6. Learned Senior counsel further submits that a letter of authorization was in fact addressed by the KITPLY Industries through their representative Rajender Kumar Pandey, permitting lorry full of finished goods pertaining to 'KIT 2000' manufactured before 31.03.2022 to be supplied in the State of Andhra Pradesh and Telangana. For the said reason of being authorized by KITPLY Company itself, the goods were sold and for the said reason also, the registration of FIR is unwarranted and liable to be quashed.
7. Learned counsel appearing for the 2nd respondent submits that the letter which the petitioners are relying upon is a fabricated letter as seen from the letter itself. In the fabricated letter dated 18.08.2022, it is mentioned as 'KIL/BLY', whereas in the original letter head of KITPLY company, it is mentioned as 'KIL/RMP'. They denote the area of the company and apparently, the letter produced by the petitioners is a fabricated letter.
8. Counsel further argued that under Section 29 of IPC, 'document' is defined. Fraudulently printing the trade mark of 5 'KITPLY' on the plywood manufactured by the petitioners after the expiry of the licence would also amount to an offence of forgery. In the said circumstances, the complaint clearly makes out an offence of cheating and also forgery. Further, under section 115(3) of the Act 1999, the offences under Trade Marks Act are cognizable offences and the same could be registered by the police. The act of the petitioners clearly makes out an offence both under Sections 103 and 104 of Trade Marks Act and section 420 and 468 of IPC. Accordingly prayed to dismiss the petition.
9. Crime was registered on the basis of a complaint by 'KITPLY' company stating that the company was cheated by these petitioners for the reason of manufacturing plywood in the absence of any licence or authority from 'KITPLY' and selling the said plywood as though it belongs to 'KITPLY' company. The purchaser of the goods supplied in the name of 'KITPLY' had intimated regarding the sale of plywood and informed that he had purchased the said material for the reason of plywood being manufactured by 'KITPLY'. Prima 6 facie, sale in the name of 'KITPLY' amounts to deceit and inducing the purchaser into purchasing plywood in the name of 'KITPLY', when the said goods were not manufactured under the licence of 'KITPLY' but by these petitioners.
10. Though it was alleged that on the basis of an authorization the said goods which were manufactured under the licence prior to 31.03.2022 were sold with consent, the said letter dated 18.08.2022 giving consent to sell plywood is disputed by the 2nd respondent stating that the letter has been fabricated.
11. Prima facie there is an allegation of cheating and also police have to investigate into the alleged letter which the complainant claims to have been fabricated as such continuance of investigation in the present case cannot be stalled. Further, in the event of Court taking cognizance violating the provisions of Section 115 of the Trade Marks act or any other Enactment can be questioned at the appropriate time.
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12. In view of above discussions, there are no merits in the petition and liable to be dismissed.
13. Criminal Petition is dismissed.
_________________ K.SURENDER, J Date:18.01.2023 kvs 8 THE HON'BLE SRI JUSTICE K.SURENDER Crl.P.No.9032 of 2022 Dated: 18.01.2023 kvs