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Jammu & Kashmir High Court

M. P. Singh & Ors. vs M/S Natural Spirits & Ors. on 1 September, 2017

Author: Sanjay Kumar Gupta

Bench: Sanjay Kumar Gupta

                   HIGH COURT OF JAMMU AND KASHMIR
                                       AT JAMMU
561-A No. 309/2017 & MP No.01/2017
                                           Date of order:01.09.2017
__________________________________________________________________

M. P. Singh & ors.                    Vs.             M/s Natural Spirits & ors.

Coram:

        Hon'ble Mr. Justice Sanjay Kumar Gupta

Appearing counsel:

For Petitioner (s) :      Mr. J. P. Sharma, Advocate.
For Respondent(s) :       Mr. Surinder Singh, Advocate for R-1&2.

i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No

1. In this petition under Section 561-A of the Code of Criminal Procedure, the petitioners, inter alia, seek quashment of complaint file No.86/complaint titled M/s Natural Spirits vs. M.P.Singh and others as well as the order dated 12.01.2016 passed therein by the learned Special Railway Magistrate (Sub judge) Judicial Magistrate 1st Class Jammu and the subsequent orders passed thereafter till date.

2. In the petition it has been stated that petitioner No.1 is managing partner cum Chief Executive Officer partner of petitioner No.3 namely M/s Bio Spirits and Managing Partner of petitioner No.4 namely M/s Bharat Multipurpose Development corporation having its Corporate Office at House No.90, Panjtirthi Jammu as well as Attorney Holder of petitioner no.2 and all the petitioners are running the business of various products after getting the same registered with Trade Marks Registry, Govt. of India whereas respondent No.1 has no right over the products of the petitioners 561-A Cr.P.C. No.309/2017 Page 1 of 8 being strangers for all purposes. It is stated that the persons, namely, Sh. Shivaram, S.Gaja Lakshmi, B.Kanka Durga & Bandi Pandu Ranga Vittal are running with name and style as Natural Spirits i.e respondent No.1. One Gopal Krishan Joshi S/o J.M.Joshi House No.652 Palam Vihar, Pakhowaal Road, Ludhiana (Punjab) respondent No.2 claiming to be Attorney Holder of respondent No.1 without naming the parties and managing partners of respondent No.1(who would have been executants of the power of attorney document) filed a complaint No.86/Complaint against the petitioners as well as proforma respondent nos.3 to 5 under Sections 103 and 104 of Trade Marks Act, 1999 and under Sections 420,474,479,481,483,485 & 486 RPC in the Court of learned Special Railway Magistrate (Sub Judge) Judicial Magistrate 1st Class, Jammu, who took cognizance of offences under Sections 103 and 104 of Trade Marks Act, 1999 vide order dated 12.01.2016. It is further stated that the document General Power of Attorney mentioned in complaint does not authorize respondent No.2 to file criminal complaints and prosecute the same on behalf of respondent No.1. It is further contended that petitioner No.1 under the provisions of Right to Information Act sought information from the office of Excise Commissioner, Jammu and Kashmir with respect to brand being claimed by respondent No.1 as registered containing "Bio" as prefix. The information provided vide Communication dated 16.02.2017 is as under:

"As per record, neither the brands in question have been classified nor MRP of these brands have been fixed by this Department."

3. It is further averred that not only this but also there had been a civil suit filed by petitioner No.3 before the Court of learned 2nd Additional Munsiff Jammu, respondent No.2 in an application under Section 8 of the J&K Arbitration and Conciliation Act seeking reference of the dispute in its application (filed on behalf of Natural Spirits) annexed with the petition as 561-A Cr.P.C. No.309/2017 Page 2 of 8 Annexure-D. In paragraph 2 of that application, it has been categorically stated and denied about the execution of any contract or agreement with petitioner Nos.1&2. The contents of relevant Para has been reproduced as under:

"2. That applicants submit that there is no such contract/agreement executed between plaintiff and defendants/ non-applicants as are alleged and annexed with the plaint, defendants/non applicants never signed so called agreement on stamp paper, document produced are false, fabricated just for the purpose of filing this suit."

4. It is also contended that in view of the submission made by the representative of respondent No.1 and thereby concealing the major aspect of the controversy, the person (claiming to be representative of respondent who has been arrayed as respondent No.2) did not disclose the major factor and further concealed that the matter stood referred to the Arbitrator. However, in view of non-registration of the products enumerated by respondent No.1, the provisions of Trade Marks Act, 1999 cannot be pressed into service. Therefore, order dated 12.01.2016 taking cognizance under Sections 103 and 104 of the Act are not maintainable which is a miscarriage of justice to the petitioners being bona fide holder of the Trade Marks of their own products having prefix J&K BIO & J&K Today, whereas respondent No.1 is not in the picture and has neither a cause of action nor any locus standi.

5. The petitioners being aggrieved of order dated 12.01.2016, seek its quashment on the following grounds:

a) That entertaining the complaint Annexure "A" and thereafter the issue of process against the petitioner at the behest of respondent No.1 is misuse of the process of law since the brands 561-A Cr.P.C. No.309/2017 Page 3 of 8 mentioned in the complaint alleged to be registered with the Trade Marks Registry, Govt. of India, have not been registered either at the time of filing complaint or thereafter, wherein cognizance has been taken by the trial Magistrate under Sections 103 and 104 of the Trade Marks Act.

b) That products alleged in the complaint by the complainant exclusively belonging to respondent No.1 have neither been classified nor the MRP of those brands have been fixed by the Department of Excise, State of J&K, hence the complaint cannot be maintained by the respondent No.1 against the petitioners, petitioners have got registered their brands with prefix "J&K BIO"

& "J&K Today."

c) That while appreciating the contents of the complaint, the preliminary statements as well as the annexure annexed with the complaint, the learned Magistrate could not take note of the fact that the brands being alleged by the complainant i.e respondent No.1 registered in favor of respondent No.1 were not registered with Trade Marks Registry, Government of India, had resulted into miscarriage of justice and the process issued against the petitioners is contrary to the relevant provisions of law which is operating against the petitioners although the petitioners are entitled to run their business/work they being permitted by the Trade Marks Registry, Govt. of India of their own products as contained in the relevant schedule/relevant certificate.

d) That when the contents of the complaint along with annexures and the statement of the person claiming to be authorized person of respondent No.1 particularly the aspect of Non-registration of the claimed products with Trade Marks Registry, Govt. of India in its entirety do not make offences under Section 103 and 104 of Registration of the product.

e) That the allegations made in the complaint regarding alleged violations of the Trade Marks Act are prima facie non-existing in view of the non-registration of those products hence complaint lacks the requisite ingredients, therefore, the same is not maintainable.

f) That the power of attorney although not executed by all the competent persons in favor of respondent No.2 does not authorize respondent No.2 to file, present, institute and prosecute criminal complaints/criminal cases on behalf of respondent No.1 against the petitioners hence complaint filed by respondent No.2 without any valid authority is not maintainable and deserves quashment along with order impugned.

g) That complainant i.e respondent No.1 has suppressed the vital materials and got process issued against the petitioners which is abuse of the process of the Court.

6. Vide order dated 01.05.2006, this Court while entertaining the instant petition, admitted the petition, issued notice to the respondents for filing reply and in the meantime, it is ordered that the proceedings in the complaint may go on, no final orders shall be passed.

7. Heard learned counsel for the parties and perused the file.

8. From the perusal of file, it reveals that respondent no.1 and 2 has filed a complaint under section 103/104 of Trade Marks Act read with Section 420/474/481/483//485 and 486 RPC against the petitioners herein; in the complaint, complainant stated that the complainant is a partnership from involved in the business of manufacturing and marketing all kind of alcoholic beverages since 2004 and is having its corporate headquarters at Bangalore, Karnataka. In order to introduce their products more effectively in the market, the complainant firm used unique blend without adding any 561-A Cr.P.C. No.309/2017 Page 5 of 8 synthetic flavor to its products. They use "BIO" word as prefix to their products in order to distinguish the same from the products of other manufacturing units of alcoholic beverages. Some of the famous products of the complainants concern are BIO BEER, BIO WHISKY, BIO BRANDY, BIO VODKA and BIO WINE etc. The use of prefix "BIO" with the beverages manufactured by the complainant's concern is pleaded to be due to this reason also that the company had made research in herbal medicine and had manufactured a herbal blend in which no control parameters is maintained so as to produce the highest quality of the blend which is supploied throughout the country and abroad. The complainant in this way, has adopted the Trade Mark "BOP" to distinguish their brand from others and the word "BOP" prefixed to a beverage represents not just the quality of complainant's products but also the unique properties of the products produced as a result of extensive usage. The Trade Mark is pleaded to have become their valuable asset and intellectual property. In order to protect the uniqueness of the Trade Mark, the complainant's company has got the same registered in clause 32 and 33. It is further urged that apart from this there is another famous registered Trade Mark "TODAY'S SPECIAL' which is used mainly to market the whisky manufactured by the complainant's company. Complainant has further urged that their brands are one of the best products of the field in the market which has given them ever increasing sales turnover and have made them the market leaders in supplying the high quality beverages.

9. Complainant has alleged that during the course of business they came across some products produced by the complainant's company under identical mark "BIO" as a prominent feature. The mark adopted by the accused upon their product is phonetically and deceptively identical to the complainant's well known Trade Mark "BIO". The accused are falsifying their products as that of complainant's by adopting and using similar Trade Mark in similar style which is an offence under the Trade Mark Act, 1999.

It is further alleged that one of the accused had approached the complainant's company for dealership of their products to be distributed in the State of J&K, however, due to some differences the agreement could not materialize. This shown that the accused has full knowledge of the complaint's company business models. Complainant has alleged to have reported in Police Station, Pacca Danga, Jammu for a registration of a case against the accused person for falsifying the registered Trade Mark "BIO" by the accused person but the police did not act.

10. Court below after recording the statements of complainant and witnesses took cognizance u/s 103/104 of Trade Marks Act only against 7 accused; Court below has passed a well detailed order in this regard.

11. I have considered the law on the subjects.

12. First ground taken is that the power of attorney although not executed by all the competent persons in favour of respondent No.2 does not authorize respondent No.2 to file, present, institute and prosecute criminal complaints/criminal cases on behalf of respondent No.1 against the petitioners.

13. I have gone through the attorney annexed in complaint, its clauses 1 and 3 clearly authorize respondent No.2 to prosecute any civil or criminal proceeding on behalf of partnership firm. So this argument is not tenable.

14. Next argument is that the brands being alleged by the complainant i.e respondent No.1 registered in favour of respondent No.1 were not registered with Trade Marks Registry, Government of India.

15. Section 27 of the Trade Marks Act, 1999 reads as under :-

" 27. No action for infringement of unregistered trade mark.- (1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for the infringement of an unregistered trade mark.

(2) ---------------------------------------------------------------------------------------------

-----------------------------------------------------------------------------------------------"

16. On bare perusal of section 27(1), it is evident that for taking cognizance of offences under section 103/104 of Trade Marks Act , the registration of trade marks is sine-qua-non.

17. In present case from the perusal of contents of complaint, it is evident that in para no.7, it has been mentioned that complainant has applied for registration of their trade mark for alcoholic beverages. So it is evident that at the time of filing of this complaint, it was not registered. There is clear bar engrafted under section 27 of Trade Marks Act for launching the proceeding.

18. Hence this petition is allowed, the complaint No.86/complaint titled M/s Natural Spirits vs. M.P.Singh and others as well as the order dated 12.01.2016 passed therein by the learned Special Railway Magistrate (Sub judge) Judicial Magistrate 1st Class Jammu and the subsequent orders passed thereafter, are quashed. Let a copy of order be sent to Court below for compliance.

(Sanjay Kumar Gupta) Judge Jammu 01.09.2017 Vijay 561-A Cr.P.C. No.309/2017 Page 8 of 8