Delhi District Court
Supreme Knitting & General Mills vs Mr. Ramesh Kumar Gupta on 19 June, 2021
IN THE COURT OF SH. RAKESH KUMAR-IV: ADDL. SESSIONS
JUDGE -02-CUM-SPECIAL JUDGE-NDPS ACT, NORTH WEST
DISTRICT, ROHINI COURTS, DELHI
Criminal Revision No. 20/2021
Supreme Knitting & General Mills
Through its partner
Mr. Rishabh Jain
S/o Late Sh. Sudesh Kumar Jain,
R/o 8/6477,Street No. 2, Dev Nagar,
Karol Bagh, New Delhi-110005. .... Petitioner/revisionist
Vs.
1. Mr. Ramesh Kumar Gupta
Director, Diamond Cycle Pvt. Ltd.,
265, Aggarwal City Plaza,
District Centre, Rohini Sector-3,
Delhi-10085.
2. Diamond Cycle Pvt. Ltd.
265, Aggarwal City Plaza,
District Centre, Rohini Sector-3,
Delhi-10085.
3. Mr. Ravi Vijay
Indo Vijay Associates Pvt. Ltd.,
BXXIX-536/9-A,
Opp. Dhandhari Kalan Railway Station,
Ludhiana-141010.
4. Rishabh Chawla,
Proprietor, Ashoka Trading Company
Plot No. E-130, Transport Nagar,
Opposite Lucky Transport Company,
Lucknow-226012. .... Respondents
C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 1/16
RAKESH Digitally signed by
RAKESH KUMAR IV
KUMAR IV Date: 2021.06.19
20:47:31 +05'30'
Date of Institution : 10.02.2021
Date when judgment was reserved : 30.03.2021
Date when judgment is pronounced : 19.06.2021
JUDGEMENT
1. This revision petition under Section 399 read with Section 397 of Cr.P.C. has been filed against the order dated 04.01.2021 passed by Sh. Sandeep Gupta, Ld. CMM, North-West, Rohini Courts, Delhi in Complaint Case No. 3925/20 titled as "Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors." whereby the Ld. M.M. dismissed the application filed by the petitioner/revisionist under Section 156 (3) Cr.P.C and the accompanying complaint under Section 200 Cr.P.C (herein after called the impugned order). Along with the present petition, an application for exemption from filing certified copy of the order dated 04.01.2021 has also been filed.
2. The brief background leading to the present revision is that the petitioner/revisionist and its predecessors in title has been running the business of cycle rubber solutions and rubber patches since the year 1961 under different unregistered well known trademarks including ZAX, DOMA, DEMAND, DIAMOND etc. and that the petitioner/revisionist is a partnership firm being represented through Mr. Rishabh Jain in the present matter (the partnership deed of the petitioner/revisionist has been annexed with the petition as Annexure C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 2/16 RAKESH Digitally signed by RAKESH KUMAR IV KUMAR IV 20:48:07 +05'30' Date: 2021.06.19 A-2).
3. It is contended that the well known trademarks of the petitioner/revisionist are a combination of words, shape of goods, packaging and colour combination as defined under Section 2 (zb) of the Trade Marks Act, 1999.
4. It is further contended that the trademarks of the petitioner/revisionist are widely recognized by cycle shopkeepers, users and consumers of rubber solutions and rubber patches.
5. It is further contended that the petitioner/revisionist had got its original "artistic work on the entire packaging of its goods" with the title DOMA registered under the Copyright Act, 1957 vide registration Nos. A-43073/83 dated 19.09.1983 and A-43074/83 dated 19.09.1983 and the title DEMAND vide registration No. A-104647/2013.
6. It is further contended that by virtue of the said registration and the originality of the artistic work, the petitioner/revisionist has statutory and common law rights in the artistic work to the exclusion of others and it is illegal for any person to reproduce the said work in any material form or to cause infringement of any other exclusive right of the petitioner/revisionist.
7. It is further contended that recently, the respondent No. 2 filed a C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 3/16 RAKESH Digitally signed by RAKESH KUMAR IV KUMAR IV Date: 2021.06.19 20:48:27 +05'30' frivolous civil suit bearing No. TM 59/2019 before Tis Hazari Courts, Delhi against the petitioner/revisionist seeking injunction against the petitioner/revisionist. On perusal of the content of that civil suit and the documents relied upon therein, it came to the knowledge of the petitioner/revisionist that the respondent No. 2 has been infringing the copyright of the petitioner/revisionist, falsifying and falsely applying the trade mark of the petitioner/revisionist on its goods and indulging in passing off the goods as that of the petitioner/revisionist.
8. That the respondent filed a copy of TM-24 affidavit along with documents in the said suit. It has been wrongly stated in the said TM- 24 that there was no litigation pending with respect to the mark. However, admittedly, the civil suit filed by the respondent shows that there were cases pending with respect to the same. Thus, the respondent is liable to be punished for filing a false TM-24 affidavit before a government authority.
9. That it is an admitted fact that the respondent No. 2 only has a trademark registration (TM No. 1379023) over the work mark "DIAMOND" and not the entire packaging or any device/logo or colour combination used on the package and surrounding the work mark "DIAMOND". However, on perusal of the documents filed in the aforesaid civil suit, it can be seen that the respondent No. 2 had not used the symbol ® next to the work mark DIAMOND but on the top of the logo/device surrounding the word mark "Diamond", thereby C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 4/16 Digitally signed RAKESH by RAKESH KUMAR IV KUMAR IV Date: 2021.06.19 20:48:47 +05'30' falsely indicating and misrepresenting that it has a registered trademark over the entire device/logo.
10. It is further contended that after going through the advertisements and bills filed by the respondent No. 2 along with its civil suit TM No. 59/2019, it can be seen that the respondent No. 2 has been portraying to the public in the year 1999 that it has a registered trademark whereas the Trademark Registration Certificate of the accused shows that the same was dated 08.02.2007 which clearly shows that the respondent has been using the logo/device of the petitioner/revisionist on its packaging and portraying it as registered whereas the same was not registered. This implies that the respondent was using a deceptively similar mark to that of the petitioner/revisionist without the consent of the petitioner/revisionist. Thus, the respondent No. 2 has been violating the provisions of Sections 102 and 103 of Trademarks Act.
11. It is further contended that the respondent No. 2 also filed three copyright registration certificates i.e. A-15653/76 dated 06.08.1976, A-15655/76 dated 06.08.1976 and A-107384/2013 dated 29.10.2013. A perusal of the certificates show that the two certificates of the year 1976 are in the name of some other partnership firm called Diamond Rubber Industries and not the respondent No. 2. Thus, the respondent No. 2 has been misleading the Court and the police by claiming to have copyright registration in its favour. The respondent has not filed C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 5/16 RAKESH Digitally signed by RAKESH KUMAR KUMAR IV Date: 2021.06.19 IV 20:49:09 +05'30' anything on record either to the police or to Ld. CMM to show that it had brought the said copyright or got it assigned in its favour. Further, the certificate of 2013 is much later in time as compared to that of the petitioner/revisionist and thus, invalid in the eyes of law.
12. It is further contended that the respondent No. 2 is a company incorporated under the Companies Act, 1956 and has been committing the offences through its Directors, who are responsible for conduct of the business of the company and shall be deemed to be guilty of such offences. Both Trademarks Act and Copyright Act provide for guilt/liability to be imposed upon the Directors on committing the offences by the company.
13. It is further contended that the respondent No. 2 has been making sales of its good under the said packaging through respondents No. 3 to 5 who are dealers of their goods.
14. Feeling aggrieved, the petitioner/revisionist immediately approached the police station Rohini South and filed a complaint dated 30th January, 2020 against the respondents/accused persons which was registered vide Diary No. 17B. The petitioner also simultaneously filed a complaint with Economic Offences Wing (EOW) vide e-mail dated 30.01.2020. Since there was no response from the said authorities, the petitioner/revisionist also filed a complaint to DCP, EOW Cell New Delhi vide e-mail dated C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 6/16 RAKESH Digitally signed by RAKESH KUMAR KUMAR IV Date: 2021.06.19 IV 20:49:30 +05'30' 11.02.2020.
15. It is further contended that since the aforesaid authorities did not take any action on the complaint of the petitioner/revisionist, the petitioner/revisionist was constrained to file a complaint under Section 190 read with Section 200 Cr.P.C along with an application under Section 156 (3) Cr.P.C before the Court of Ld. CMM to pass necessary directions to the police for registration of FIR.
16. It is further contended that upon the said complaint and application, Ld. CMM issued notice to the IO to file a status report however, the IO did not make any investigation, rather only asked the respondent/accused No. 2 about the allegations, who then misled the IO by showing the aforesaid trademark registration and copyright registration certificates.
17. It is further contended that after hearing arguments in the said matter, Ld. CMM wrongly relied upon the status report of IO and dismissed the complaint filed by the petitioner/revisionist along with the application under Section 156 (3) Cr.PC vide the impugned order dated 04.01.2021. Being aggrieved by the said order, the petitioner/revisionist has preferred the present revision petition.
18. The grounds taken by the petitioner/revisionist for filing the present revision petition are that the impugned order dated 04.01.2021 C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 7/16 RAKESH Digitally signed by RAKESH KUMAR IV KUMAR IV Date: 2021.06.19 20:49:52 +05'30' is totally arbitrary, unreasonable and against the settled principles of law; that the Ld. CMM wrongly relied upon the status report filed by the IO; that the Ld. CMM failed to take note of the fact that the alleged Trademark Registration of the respondent/accused No. 2 was only with respect to the word mark "Diamond" and not the device/logo around it or the colour scheme.
19. That the Ld. CMM failed to take into account the provisions of Sections 102, 103 and 107 of Trademarks Act, Sections 63 & 64 of Copyright Act, 1957 and Sections 415 and 420 of IPC while determining the complaint of the petitioner/revisionist.
20. That the Ld. CMM failed to take into account that the issue before the Civil Court is very different from the issue raised in the complaint.
21. It is, therefore, requested to set aside the impugned order dated 04.01.2021 and direct the police/EOW to register an FIR against the respondents/accused persons and to investigate the matter thereon.
22. I have heard Ld. Counsel for the parties and have carefully perused the entire record.
In support of his submissions, Ld. Counsel for the petitioner has relied upon the observations made by Hon'ble Supreme Court in a case titled as Kishan Singh (D) Thru LRs v. Gurpal Singh & Ors. (2010) C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 8/16 Digitally signed RAKESH by RAKESH KUMAR IV KUMAR IV Date: 2021.06.19 20:50:13 +05'30' 8 SCC 775.
23. I have also gone through the judgment relied upon by Ld. Counsel for the petitioner/revisionist i.e. "Lalita Kumari v. Government of Uttar Pradesh" 2014 (2) SCC 1, wherein it has been observed that :
"111) In view of the aforesaid discussion, we hold:
(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 9/16 Digitally signed RAKESH by RAKESH KUMAR IV KUMAR IV Date: 2021.06.19 20:50:33 +05'30'
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/latches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above".
24. Before proceeding further, it is important to note here that there are certain acts which are civil wrong as well as criminal wrong, but to prove the same, means during the civil proceedings and criminal proceedings/trial, the parameters are altogether different i.e. in the civil proceedings, the facts can be said to be proved, if it is established its probability of existence, whereas in a criminal trial, facts has to prove beyond its reasonable doubts.
If the facts/alleged acts have both in nature (civil wrong/criminal wrong), then whether it can be said that the act is C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 10/16 RAKESH Digitally signed by RAKESH KUMAR KUMAR IV Date: 2021.06.19 IV 20:50:59 +05'30' purely civil in nature. Similarly, a person can be prosecuted for the acts under Section 340 Cr.P.C., if it is expedient in the interest of justice and moreover, such proceedings under Section 340 Cr.P.C has to be decided at the end of civil proceedings.
On the other hand, an FIR can be registered under Section 154 Cr.P.C upon giving information to the SHO concerned. If the information discloses qua the commission of cognizable offence. Further, it is settled law that finding of Civil Court are not binding upon criminal Court and vice versa. Similarly, there is no embargo to register an FIR if the alleged act subject to civil proceedings if it is also falling within the nature of criminal wrong.
25. Here it is pertinent to note here that primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precisions in the FIR. The FIR itself is not the proof of a case, but it is a piece of evidence which could be used for corroborating the case of prosecution. FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relied. It only has to state the basic case; Jitender Kumar v. State of Haryana, AIR 2012 SC 2488.
26. Further, the Hon'ble Supreme Court as well as Legislature has already been held and enacted that how the power of arrest can be exercised and manner of investigation, if the punishment of the alleged offence/act is up to the seven years as clear from the judgment C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 11/16 RAKESH Digitally signed by RAKESH KUMAR KUMAR IV Date: 2021.06.19 IV 20:51:21 +05'30' of Hon'ble Supreme Court in the matter of "Arnesh Kumar v. State of Bihar & Anr., Crl. Appeal No. 1277/14 decided on 02.07.2014 and under Section 41A Cr.P.C. Similarly, the standing guidelines also passed by the Commissioner of police/DCP qua the registration of FIR in case of offence which are both in nature civil as well as criminal like cheating and nuisance etc.
27. Since there are two kinds of evidence in nature i.e. ocular (statement) and documentary evidence (digitally record/electronic record as well as the hand written documents and hard copy), in the catena of judgments, it has been held that where the evidence are ocular in nature and within the knowledge of complainant, then it would not be appropriate to give directions to the SHO mechanically to register the FIR under Section 156 (3) Cr.P.C and to get conduct the investigation from the police, but where the evidence are documentary as well as not entirely in the possession of the complainant, which may only collected through the agency like police then the directions can be given to the SHO/Police to register the FIR and investigate the matter by the police for the collection of evidence and investigate the matter. Therefore, it is necessary for the Court while exercising the discretion under Section 156 (3) Cr.P.C, that it should be exercised judicially with judicial application of mind.
28. All such type of determination, findings and observations which have been made by the Hon'ble Apex Court to check and balance all C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 12/16 RAKESH Digitally signed by RAKESH KUMAR KUMAR IV Date: 2021.06.19 IV 20:51:42 +05'30' the power and discretion of registration of FIR and one can be protected from being harassed, but surely it was because the Hon'ble Apex Court/Higher Authority observed these things i.e. the FIR are being registered on the basis of whims and fences and mostly on the basis of opinion without considering the actual information, contents, facts which discloses the commission of cognizable offence, which are further may be related to the ocular statement as well as based on documentary evidence. Now it is clear that a accused can be arrested for the offence alleged if the punishment is provided up to 7 years as per the judgment of Hon'ble Supreme Court in the case titled "Arnesh Kumar v. State of Bihar" as well as Section 41 A Cr.P.C and how an accused can be called for joining the investigation as clear by the judgment of Hon'ble High Court of Delhi passed in the matter of Amandeep Singh Johar v. State of NCT. Further, the police can file charge sheet/final report even without arrest as per the judgment passed by Hon'ble High Court of Delhi in the case titled as "Tejender Khanna v. Govt. of NCT".
29. Now, turning to the factual matrix of the present case, in the presence case, the complainant/revisionist alleged that the accused has committed the offence u/s 102/103 & 107 Trade Marks Act, Section 64/65 Copyright Act and Sections 415/420 IPC which the complainant company came to know during the civil proceedings, having been filed by the respondent No.2 against the revisionist, and after consideration of the contents of the complaint along with complaint C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 13/16 RAKESH Digitally signed by RAKESH KUMAR KUMAR IV Date: 2021.06.19 IV 20:52:10 +05'30' under Section 200 Cr.P.C as well as status report of the IO, the Trial Court has not only dismissed the complaint/application under Section 156 (3) Cr.P.C, but also the complaint under Section 200 Cr.P.C vide impugned order dated 04.01.2021 while relying upon the report of concerned IO/SHO, wherein it is reported that matter is of civil nature as well as pendency of the civil suit which is in my considered opinion is incorrect because there is no bar for registration of FIR if the alleged act also falls within the definition of alleged crime/offence.
In the present case, complainant alleged that the complainant company obtained the copyright for artistic work, colour and design of its logo since long back and got registered in 1983 as per the averments made in para No. 5 above which create their goodwill and make identically different product from the other company in the field of production/business of cycle rubber solution and rubber patches since the year 1961 under different unregistered well known trademarks as averred in para No. 2 above whereas the accused contented that the accused company has registered the trademark since 1983 as per the certificate of registration of trademark which is otherwise based on ocular statement as well as documentary evidence as averred in paras No. 9 and 10 above. Now the question arose whether that how the both parties/companies have obtained and since what time the logo of similarly deceptive are being used and on what kinds of documents filed by them for the registration of copyright as well as trademark and subsequently, certificates have been obtained, in my considered opinion, from the police agency as entire documents C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 14/16 RAKESH Digitally signed by RAKESH KUMAR IV KUMAR IV Date: 2021.06.19 20:52:35 +05'30' are not within the control and knowledge of parties as this evidence cannot be said to be entirely in the possession and within the control of the complainant which can be only verified and collected by the police from the office of Registrar of trademark and copyright as well as the other documents including the deed of assignment and the copy of TM-24 affidavit which are sought to be examined/verified from the parties' companies/firm itself.
30. In view of the above discussion, I am of the further considered view that the impugned order dated 04.01.2021 has been passed only on the basis of status report filed on behalf of IO/SHO concerned vide dated 21.08.2020 (which has also got prepared only on the basis of examination of accused and documents as well as on the information qua the pendency of civil suit between the parties but without conducting any preliminary enquiry from the complainant and the documents which have been relied by the complainant. Even without giving any finding how the information given by the complainant vide complaints dated 30.01.2020 and 11.02.2020 does not disclose any commission of cognizable offence) and also on the ground that one civil case is pending between the parties. Hence, the impugned order is not sustainable and is set aside accordingly. SHO concerned is directed to register FIR and investigate the matter as per law.
31. With these observations, the present revision petition is allowed and disposed of accordingly.
C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 15/16RAKESH Digitally signed by RAKESH KUMAR IV KUMAR IV 20:53:00 +05'30' Date: 2021.06.19 TCR be sent back with the copy of this order.
Revision file be consigned to record room.
RAKESH Digitally signed by RAKESH KUMAR IV KUMAR IV Date: 2021.06.19 20:53:25 +05'30' (Rakesh Kumar-IV) Announced in Open Court ASJ-02-cum-Special Judge, on 19th Day of June, 2021 (NDPS), North-West District, Rohini:Delhi C.R No. 20/21 Supreme Knitting & General Mills Vs. Ramesh Kumar Gupta & Ors. Page 16/16