Karnataka High Court
Mr Prakash Prabhu vs The State Of Karnataka on 13 January, 2021
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION No.2504/2019
BETWEEN:
MR. PRAKASH PRABHU,
S/O MANJUNATH PRABHU,
AGED 53 YEARS,
R/AT ADHIMANE PRODUCT,
HORANADU VILLAGE,
CHIKKAMAGALURU DISTRICT - 577 124. ... PETITIONER
[BY SRI P.P. HEGDE, ADVOCATE (THROUGH V.C)]
AND:
1. THE STATE OF KARNATAKA,
THROUGH THE SUB-INSPECTOR OF POLICE,
KALASA POLICE STATION,
CHIKKAMAGALURU DISTRICT,
REPRESENTED BY THE STATE
PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
2. SRI P.N. PRATHAP,
AGED 51 YEARS,
S/O P.P. NANAIAH,
ASSISTANT MANAGER,
THE MYSORE PLANTATIONS LTD.,
GUARD HITLOW, KOPPA 577 126,
CHIKKAMAGALURU DISTRICT. ... RESPONDENTS
[BY SRI K.S. ABHIJITH, HCGP FOR R-1,
SRI AMAR CORREA, ADVOCATE FOR R-2]
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE FIR IN CR.NO.5/2019 OF KALASA
POLICE STATION REGISTERED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 420 OF IPC, PENDING ON THE FILE OF
ADDITIONAL CIVIL JUDGE AND J.M.F.C., MUDIGERE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though this matter is listed for admission today, with the consent of both the learned counsel taken up for final disposal.
2. This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the FIR registered in Crime No.5/2019 of Kalasa Police Station for the offence punishable under Section 420 of IPC.
3. The factual matrix of the case is that based on the complaint of the complainant, the police have registered the case against the petitioner. The complainant is having a Tea factory at Koppa and they are processing and selling tea powder bags in wholesale under the trade name QTF and some of their customers called and informed that the petitioner is selling the tea powder printing the QTF label and not selling the product of 3 the complainant. Hence, the staff of the complainant went and purchased tea bags of 5 kgs. and 1 kg. from the petitioner and found that the bags did not contain bag number and bill number and the said product does not belong to the complainant. Hence, the case has been registered.
4. The learned counsel for the petitioner would vehemently submit in his argument that the allegation is violation of trademark and the complainant cannot invoke the penal provisions of Section 420 of IPC when the special enactment is provided under the Trade Marks Act, 1999. The learned counsel particularly brought to the notice of this Court Section 101 of the Trade Marks Act and the penal provisions of Section 102 and the provisions of Section 115 providing mechanism to deal with the matter in respect of violation of the trade mark.
5. The learned counsel for the petitioner in support of his arguments relied upon the judgment of the Apex Court in the case of SHARAT BABU DIGUMARTI v. GOVERNMENT (NCT OF DELHI) reported in (2017) 2 SCC 18 and brought to the 4 notice of this Court paragraph No.37 of the judgment and would contend that once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of IPC.
6. The learned counsel also relied upon the judgment of Punjab and Haryana High Court in the case of SATPAL AND ANOTHER v. STATE OF PUNJAB AND OTHERS reported in 2010 SCC Online P & H 10179 and brought to the notice of this Court paragraph Nos.3, 7 and 10 of the judgment. Referring the same, the learned counsel would submit that as per sub- clause (4) of Section 115 of the Trade Marks Act, 1999, no police officer below the rank of Deputy Superintendent of Police can search and seize for goods regarding offence under Sections 103, 104 and 105. He also brought to the notice of this Court that the word "shall" in the proviso is indication of the fact that the provision is indeed mandatory. The said offences could have only been investigated by the officer not below the rank of Deputy Superintendent of Police.
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7. The learned counsel also relied upon the judgment of the Bombay High Court in the case of GAGAN HARSH SHARMA AND ANOTHER v. STATE OF MAHARASHTRA THROUGH SR. POLICE INSPECTOR AND ANOTHER reported in 2018 SCC Online Bombay 17705. Referring this judgment the learned counsel brought to the notice of this Court paragraph No.36 of the judgment, wherein the Bombay High Court dealt with regard to Section 43 of the Information Technology Act, 2000 with regard to theft of data stored in the computer.
8. Having referred all these judgments, the learned counsel vehemently contend that the police officer cannot invoke Section 420 of IPC when there is a trade mark violation and ought not to have invoked Section 420 of IPC. The law is established with regard to dealing the matter under the Trade Marks Act.
9. Per contra, the learned counsel appearing for respondent No.2 would submit that the factual aspect is different. In the case on hand, the petitioner is not having any trade mark and respondent No.2 is having the trademark to sell 6 the tea in the name of Garden Fresh Tea. The petitioner though he is having the product of respondent No.2 in his shop, he indulged in selling the tea powder printing the Garden Fresh Tea, which is not the product of respondent No.2 and the same does not bears any seal, date and the print and he deceived the complainant by selling the product other than that of respondent No.2. Hence, the question of invoking the special provisions under the Trade Marks Act does not arise.
10. The learned counsel referring the judgment of the Apex Court in the case of Sharat Babu Digumarti (supra) brought to the notice of this Court paragraph No.10 of the judgment i.e., with regard to whether the appellant who has been discharged under Section 67 of I.T. Act could be proceeded under Section 292 of IPC. The learned counsel also submits that the special enactment does not prevail over the contents of the complaint. The learned counsel also submits that there is no any overriding provision under the Trade Marks Act.
11. The learned High Court Government Pleader appearing for the State would submit that the police have rightly 7 registered the case against the petitioner taking note of the contents of the complaint and there are no grounds to interfere with the proceedings initiated against the petitioner invoking Section 482 of Cr.P.C.
12. Having heard the submissions of the respective learned counsel, this Court has to examine whether the offence attracts the penal provisions of the Trade Marks Act or Section 420 of IPC.
13. Having perused the complaint, the complaint is specific that on 06.02.2019, the complainant, who is the Manager of the Mysore Plantations Limited had lodged the complaint making the allegation that the petitioner is selling the tea powder printing QTF trade mark of the complainant and selling the product which is not the product of the complainant. Tea bags of 5 kgs. and 1 kg. was purchased from the petitioner by sending their staff and on perusal of the bags, it bears no bag number, bill number and date. Hence, the petitioner had indulged in committing the offence of cheating. 8
14. Having perused the complaint, there is no dispute with regard to the trade mark dispute between the petitioner and the complainant. The petitioner has also not registered any name under the Trade Marks Act to sell the product. The very allegation made in the complaint is that the petitioner herein is selling the tea powder to the general public cheating the complainant printing the trade mark of QTF, inspite of he is not having the trademark but deceived the complainant by using the label of the complainant. Having perused the complaint averments, the very contention of the learned counsel for the petitioner that the complainant ought to have invoked the special provisions under the Trade Marks Act, cannot be accepted. There is no dispute that the petitioner is not having trade mark and he had indulged in cheating the complainant. When the specific allegation is made with regard to cheating, the question of dispute with regard to the trade mark does not arise, as contended by the learned counsel for the petitioner. There is no dispute with regard to the principles laid down by the Apex Court in its judgment in the case of Sharat Babu Digumarti (supra). It is settled law that the special enactment prevails over 9 the general law. The very principles laid down in the judgment will not come to the aid of the learned counsel for the petitioner.
15. Having perused the allegations made in the complaint, it is not a fit case to exercise the powers under Section 482 of Cr.P.C. to quash the proceedings. If it is quashed, it amounts to interfering with the investigation and the Investigating Officer has to investigate the matter with regard to penal provisions invoked against the petitioner.
16. In view of the discussions made above, I pass the following:
ORDER The petition is rejected.
Sd/-
JUDGE MD