Allahabad High Court
Mahesh Kumar Khemka vs State Of U.P. And Another on 12 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:137488 Court No. - 82 Case :- CRIMINAL REVISION No. - 1799 of 2023 Revisionist :- Mahesh Kumar Khemka Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sudhanshu Pandey Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J.
1. Heard learned counsel for the revisionist and the learned A.G.A. for the State.
2. The present revision has been filed to stay the effect and operation of the impugned order dated 18.02.2020 passed by learned Additional District & Sessions Judge, Court No. 6, Gorakhpur in Discharge Application under Section 227 Cr.P.C. and order of framing of Charge dated 16.11.2021 passed by learned Additional District & Sessions Judge, Court No. 2, Gorakhpur in Session Trial No. 69 of 2007 (State Vs. Mahesh Kumar Khemka), arising out of Crime No. 894 of 2006, Police Station Kotwali, District Gorakhpur.
3. Factual matrix of the case is that the revisionist is engaged in production and marketing of mustard oil and all other kind of edible oils. He is also engaged in trading of said commodities in the name and style of "Anmol Udyog Sahebganj, Gorakhpur, U.P. The trade mark of the revisionist's firm is "New Double Bail Kolhu", which was registered on 18th March, 2004 under the provisions of Trade Marks Act, 1999. On 3rd November, 2006, an FIR has been lodged by the Sub-Inspector (Special Cell), E.O.W., Lucknow against the revisionist which has been registered as Crime No. 894 of 2006, under Sections 420, 272, 273 I.P.C., Sections 60/63 of the Copy Rights Act, Sections 7/16 of Prevention of Food Adulteration Act and Sections 103/104 of the Trade Marks Act, 1999 at Police Station-Kotwali District-Gorakhpur. It is alleged in the said FIR that EOW conducted an inquiry about the adulteration in mustard oil on the complaint made by M/s B.L. Agro Oils Pvt. Ltd Madhokhedi, Bareilly, who is the proprietor of "Bail Kolhu" Brand Mustard Oil. After completion of investigation under Chapter XII Cr.P.C., charge-sheet no. 7 of 2007 dated 7th March, 2007 under Sections 420, 272, 273 I.P.C., Sections 60/63 of the Copy Rights Act, Sections 7/16 of Prevention of Food Adulteration Act and Sections 103/104 of the Trade Marks Act, 1999 at Police Station-Kotwali District-Gorakhpur on which cognizance has been taken by the concerned Magistrate on 9th March, 2007 and the case has been registered as Criminal Case No. 299 of 2007 (State Vs. Mahesh Kumar Khemka). Thereafter the revisionist filed discharge application under Section 227 Cr.P.C. on 6th September, 2007, which was rejected on 3rd October, 2009 for want of prosecution and was not decided on merits. After some time, the case was transferred from the court of Magistrate to the Court of Sessions Judge, Gorakhpur and the same has been registered as Sessions Trial No. 69 of 2007. The revisionist again on 28th August, 2018 moved discharge application under Section 227 Cr.P.C. being Paper No. 32-B (Kha) in Sessions Trial No. 69 of 2007, which has been rejected by the Additional District and Sessions Judge, Court No. 6, Gorakhpur vide order dated 18th February, 2020. Thereafter the Additional District and Sessions Judge, Court No. 2, Gorakhpur has framed the charges against the revisionist under Sections 420, 272, 273 I.P.C., Sections 60/63 of the Copy Rights Act, Sections 7/16 of Prevention of Food Adulteration Act and Sections 103/104 of the Trade Marks Act, 1999. It is against these two orders that the present criminal revision has been filed.
4. It is also admitted on record that the complainant, namely, M/s. B.L. Agro Oils Pvt. Ltd. Madhobadi Bareilly through its Managing Director Ghanshyam Khandelwal instituted Original Suit No. 26 of 2006 against the revisionist and his firm for permanent injunction restraining the revisionist from using the brand of New Double Bail Kolhu. Being the defendant in the said suit, the revisionist contested the case and ultimately the Additional District Judge, Court No.4, Bareilly has dismissed the said suit vide judgment and order dated 3rd May, 2008.
5. Learned counsel for the revisionist submits that the judgment and orders passed by the Court below rejecting the discharge application and framing of the charges by the impugned orders are wholly illegal, unwarranted and unsustainable in eyes of law. The charges against the revisionist have been framed under Sections 420, 272, 273 I.P.C., Section 60/63 of Copy Right Act, and Sections 7 / 16 Prevention of Food Adulteration Act and Sections 103 / 104 Trade Marks Act, whereas there is no evidence available on record and ingredients of the said Act has not been cropped up in the order of framing of charge against the revisionist.
Learned counsel for the revisionist further submits that so far as Sections 272, 273 I.P.C. & Section 7/16 Prevention of Food Adulteration Act (PFA) are concerned, there is specific provision under the Food Safety & Standard Act 2006 (FSSA) and the offence relating to adulteration of food is governed by the FSSA and the same is to be treated as per the procedure to be followed for penalty and prosecution therein. The FSSA is a special act having overriding effect over all other food adulteration laws including the Prevention of Food Adulteration Act, as such invocation of Section 272 & 273 I.P.C. in the present matter relating to adulteration of food and Section 7 / 16 PFA is wholly illegal and unjustified.
6. Learned counsel for the revisionist then submits that so far as Section 60/63 of The Copy Right Act, 1957 is concerned, the manufacturing of oil and registration of brand for selling the same, does not come within the purview of The Copy Right Act. As per Chapter III, Section 13 there is specific provision indicating that the copy right subsists throughout India in the classes of works i.e. a. Original literary, dramatic, musical and artistic works. b. Cinematography, films, c. Sound recording. He further submits that Section 14 of the Copy Right Act, 1957 specifically says about the meaning of copy right.
7. Learned counsel for the revisionist further submits that from perusal of Section 14 of the Copy Right Act, it is apparent that the manufacturing of mustard / edible oils and its registration is not covered under the Copy Rights Act, as such no question arises for commissioning of offence under Section 60/63 of the Copy Right Act against the revisionist.
8. It is next submitted that so far the charges under Section 103/104 of the Trade Marks Act are concerned, the same are also not made out against the revisionist as the revisionist is not selling goods or providing services to which false trade marks or false trade description is applied and issue regarding the same has already been decided by the learned Civil Court in O.S. No. 26 of 2006 in favour of the revisionist and the decree dated 03.05.2008 has become final between the parties as the same has not been challenged before the superior Court of law. So far as the charge for the offence under Section 420 I.P.C. is concerned, the same is also not attracted against the revisionist as the ingredient of Section 420 I.P.C. is not applicable in the case of the revisionist. Even if the allegations made in the first information report are accepted to be true and correct, the revisionist can not be said to have committed any offence of cheating and there is no offence committed by the revisionist under the provision of The Copy Rights Act, The Trade Marks Act and The Prevention of Food Adulteration Act as the issue about the misbranding has already been decided by the competent Court of law in favour of the revisionist.
9. Learned counsel for the revisionist then submits that the Additional District & Sessions Judge has passed impugned orders without considering the broad probabilities, total effect of evidence and the documents produced and the basic infirmity appearing in the case. The Additional District and Sessions Judge under the order impugned has rejected the discharge application of the revisionist only on the ground that he has not challenged the cognizance order.
10. It is also submitted that from perusal of the impugned order, it is apparent that the Court below without application of judicial mind and in contravention of the settled legal proposition of law has illegally rejected the discharge application of the revisionist and thereafter has illegally framed the charges against him. The Additional Sessions Judge without considering the evidence available on record including the document submitted therewith and without recording his satisfaction that there is "grave suspicion about the commissioning of crime by the accused," has illegally passed the impugned order dated 18.02.2020 rejecting the discharge application of the revisionist and thereafter has illegally framed the charges on 16.11.2021.
11. It is the settled law that at the stage of framing of charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or there is no sufficient ground for proceeding against him. There is patent defect and error in the impugned orders as the learned Additional Sessions Judge without considering all aspect of the matter and without recording any finding to the "grave suspicion" against the revisionist has passed the impugned orders in contravention to the settled proposition of law as pronounced by the Hon'ble Apex Court in the case of Sanjay Kumar Rai Vs. State of U.P. (2021 (4) ADJ 639) and is not sustainable in eyes of law.
On the cumulative strength of the aforesaid, learned counsel for the revisionist submits that the impugned orders are based upon misreading of record, non appreciating of material evidence and illegal application of law, deserve to be set aside.
12. On the other-hand, learned A.G.A. submits that there is no illegality or infirmity in the orders passed by the court below so as to warrant any interference by this Court while exercising its revisional jurisdiction. As such the present criminal revision has no merit and is liable to be dismissed.
13. This Court has considered the submissions made by the learned counsel for the parties and gone through the records of the present revision specifically the orders impugned passed by the courts below.
14. Before expressing any opinion on the merits of the case set by the parties, this Court may record that the complainant, namely, M/s. B.L. Agro Oils Pvt. Ltd. Madhobadi Bareilly through its Managing Director Ghanshyam Khandelwal instituted Original Suit No. 26 of 2006 on 15th August, 2006 against the revisionist and his firm for a permanent injunction against the defendants and for delivery of finished goods in packing of the brand "New Double Bail Kolhu" similar to the Bull Bail Kulhu. The said original suit has been dismissed by the Additional District Judge, Court No.4, Bareilly vide judgment and order dated 3rd May, 2008 and the same has not been challenged any further before any other higher Court, meaning thereby that the same has attained finality. The Additional District Judge, Court No.4, Bareilly while dismissing the original suit filed by the complainant has recorded his/her finding that the relief as prayed in the said suit can be accepted in favour of the plaintiffs in such a situation when there is sufficient evidence on record to show that the defendants are misusing the trade mark of the plaintiffs to use their product. The onus lies on the plaintiff to establish the fact that the defendants have succeeded in selling the goods of the plaintiff by using a trade mark similar to their registered trade mark Bail Kolhu. The Additional District Judge, Court No.4, Gorakhpur was of the view that a consumer cannot be deceived by seeing both the trademarks and that 'the organization using the trade mark of New Double Bail Kolhu is cheating the plaintiff organization by using their trademark. In this regard, the only statement of the plaintiffs is available on record that the defendants are cheating by using similar trade mark. Against this, not a single consumer has been presented before the court on behalf of the plaintiffs, who would support the fact that there is a situation of cheating by looking at both the trademarks, thus the court below was of the conclusion that the plaintiffs have failed to establish the said allegation against the defendant. The fact of using a name similar to the brand of plaintiffs' trade mark is also not confirmed as far as the sale of goods in different areas is concerned. The lower court has also recorded that the plaintiff cannot say whether the goods of the defendants come to Bareilly or not. It has not even been mentioned in the evidence by the plaintiffs that the goods of the defendants go to other districts where the goods of the plaintiffs go and where the consumers buy the goods of the defendants knowing the goods of the plaintiffs. Even in the plaint, the plaintiff has not mentioned any trader from where the goods of the defendant are received. No customer has been produced before the Court nor has any customer complaint been presented by the Plaintiff which is addressed to the Plaintiff. The plaintiff has not presented any account of the sale of his goods, which shows that the availability of the goods of both the parties in a certain area has affected the sale of the plaintiff. There is no evidence on record that any kind of adulteration was found in the goods seized in the raid.
15. From the aforesaid review and analysis of the statement submitted by the Plaintiffs in the plaint and the evidence provided in support of the same, the lower court was of the conclusion that the Plaintiffs have not been able to establish the fact that the brand name or trademark used by the Defendants is not a product of the Plaintiffs or their the consumer is being cheated by the defendants or the mustard oil is not being sold by the defendants after adulteration as per the standard. Everyone has legal freedom to do every kind of business in India on a competitive basis without cheating anyone in business. Even if someone is harmed in healthy competition, it is legally permissible. The plaintiffs have not been successful in proving the statements made in the plaint against the defendants. Therefore, the lower court was of the conclusion that the plaintiffs are not entitled to get the relief of permanent injunction against the defendants on the basis of the reasons given in the plaint against the defendants. Further the lower court was of the opinion that the plaintiffs are not entitled to the relief sought and the complaint is liable to be dismissed. After recording such finding, the lower has dismissed the suit filed by the complainant.
16. On the basis of said decision of the court below, learned counsel for the revisionist submits that the court below cannot frame charge against the revisionist under Sections 60/63 of Copy Right Act as also under Sections 103/104 of Trade Marks Act, as the offence made against the revisionists under the aforesaid Sections has not been proved by the complainant.
17. The learned counsel for the revisionist has also drawn the attention of the Court to the Forensic Science Laboratory Report bearing C.D. No. 4, dated 19th September, 2006 a copy of which has been enclosed as Annexure No. S.A.-1 to the supplementary affidavit filed on behalf of the revisionist. In the said report it has been mentioned that from the examination, in the sample of oil collected from the possession of the revisionist, it has been found that Tishee oil has been mixed therein, meaning thereby that the said oil is adulterated but not noxious. Therefore, the offence as alleged against the revisionist under Sections 272 and 273 I.P.C. is not made out against the revisionist as the ingredients contained in Sections 272 and 273 are not attracted.
18. Learned counsel for the revisionist has again highlighted the fact before the Court that for the same offence i.e. adulteration of noxious items in food items, two provisions i.e. Sections 272 and 273 I.P.C. and Sections 7/16 of Prevention of Food Adulteration Act cannot run concurrently. Apart from the above, learned counsel for the revisionist has submitted that against a person, who sells adulterated and noxious food, no first information report can be lodged as the same is not applicable in the said provisions. Only a complaint shall be filed against such persons.
18. Learned counsel for the revisionist has also submitted that the orders impugned are non-speaking orders, as no findings and reasons about the evidence produced before the court below have been discussed or mentioned. As such the same cannot be legally sustained in view of the judgment of Sanjay Kumar Rai (Supra). In support of the said ground, learned counsel for the revisionist has referred the relevant portion of the said judgment, which reads as follows:
"15.The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of Cr.P.C. That apart, this Court in the abovecited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its aforestated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law.
16. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India Vs. Prafulla Kumar Samal]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.
17. This brings us to the present case wherein the High Court has not gone into the merits of the case and did not analyze the case in light of the settled law referred to above.
18. The High Court has committed jurisdictional error by not entertaining the revision petition on merits and overlooking the fact that 'discharge' is a valuable right provided to the accused. In line with the fact that the High Court and the court below have not examined the fairness of criminal investigation in this case and other related aspects concerning improvement of witness statements, it is necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. Accordingly, we set aside the impugned order dated 28.11.2018 and remand the case back to the High Court for its reconsideration in accordance with law."
19. On overall evaluation and discussions of the facts and submissions made by the learned counsel for the parties, as also seeing the fact that no notice has been issued to the opposite party no.2 to have his say in the matter and the stage of the present criminal proceedings in which the conclusion of trial has yet to come, it would not be proper for this Court to express its final opinion on the merits of the case set up by the parties while exercising its power in revisional jurisdiction, but at this stage this Court finds some substance in the submissions made by the learned counsel for the parties that the impugned order dated 18.02.2020 passed by learned Additional District & Sessions Judge, Court No. 6, Gorakhpur in Discharge Application under Section 227 Cr.P.C. and order of framing of Charge dated 16.11.2021 passed by learned Additional District & Sessions Judge, Court No. 2, Gorakhpur in Session Trial No. 69 of 2007 (State Vs. Mahesh Kumar Khemka), arising out of Crime No. 894 of 2006, Police Station Kotwali, District Gorakhpur suffer from illegality, perversity and infirmity, which needs re-examination by the courts below.
20. Accordingly, both the orders impugned are set aside. The court below is directed to pass fresh orders on the discharge application filed by the revisionist as also for framing of charge against him while taking into consideration the facts, evidence, submissions made by the learned counsel for the revisionist and legal positions as mentioned herein above, by means of a reasoned speaking order, preferably within three months from the date of production of a certified copy of this order.
21. The present criminal revision is allowed subject to the observations made herein above.
22. It is made clear that any observations made herein above shall not be prejudiced of the rights of the parties in any manner in the trial of the aforesaid criminal case.
(Shiv Shanker Prasad, J.) Order Date :- 12.7.2023 SK Srivastava