Delhi District Court
State vs Surinder Etc. (Attached Herewith Cc No ... on 31 August, 2023
Page 1 of 18
IN THE COURT OF ANURAG THAKUR ACMM (SPECIAL ACTS):
CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI.
FIR No. 114/2005
PS: Roop Nagar
U/s 103/104 Trade Marks Act, 1999.
State vs. Surinder & Ors.
CNR No. DLCT02-000326-2006
Date of institution of case: 31.01.2006
Date when judgment reserved: 21.08.2023
Date when judgment pronounced: 31.08.2023
JUDGMENT
Unique ID no. of the case : 293626/2016
Date of commission of offence : 30.04.2005
Name of complainant : Borosil Glass Works Ltd.,
Khanna Construction House,
44, Dr. R.G.Thandai Marg,
Worli, Bombay.
Through its AR Kishore P. Sahani
S/o Pandurang M Sahani
Name and address of accused : (i) Surinder s/o Balkishan
R/o 626, Kabir Basti,
Malka Ganj, Delhi.
(ii) Ved Prakash s/o Shyam Lal,
R/o 4/15, Jaidev Park,
Near East Punjabi Bagh,
New Delhi.
(Convicted on 01.08.2011)
(iii) Brij Bhan Mishra
S/o Lallan Mishra
R/o 38-B, Krishna Enclave,
Ashok Vihar, Phase-III,
New Delhi.
(Proceedings already abated)
(iv) Subhash Chander
S/o Mahavir Singh
R/o VPO Bamanauli,
Distt. Jhajjar, Haryana.
(Proceedings already abated)
FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar
Page 2 of 18
Offence complained of : U/s 103/104 Trade Marks Act
Plea of accused : Pleaded not guilty
Date of order : 31.08.2022
Final order : Acquitted
BRIEF REASONS FOR DECISION OF THE CASE
1. The case of the prosecution in brief is that on 30.04.2005 at Neeraj Scientific Works, # 5760, Gali No.6, Ground Floor, New Chandrawal, Delhi, accused Surinder was found in possession of 13 Funnels, 2 Cylinders, 39 Joints, 2 Reagent bottles, Volumetric Flask, 7 Flasks with joint, 2 Burettes, Pipettes, Soxhlet Apparatus, 102 Beaks, 34 Stoppers, one mould for stoppers, one local made machine for moulding glass, two small screen printing stickers put in one brown envelope. These articles were bearing falsified trademark/trade name 'BOROSIL' which was deceptively similar to the trademark/trade name of the complainant with the name of 'Borosil Glass Works Ltd'. It is alleged that Surinder applied false trademark on the above said goods and packing material used to pack those goods without consent of the proprietor of trademark and applied false trademark/deceptively similar trademark and false trade description with a view to sell other than genuine articles. Surinder allegedly also had in his possession plates/instruments/dyes etc. for applying falsified trademark on the goods and accordingly committed offence of falsifying the trademark/tradename as defined u/s 102 of Trade Marks Act, 1999 and accordingly committed the offence punishable u/s 103 of Trade Marks Act, 1999. The accused Surinder was also found in possession of the above said articles with false trademark and deceptively similar trade name and false trade descriptions with the purpose of selling the goods and thereby committed an offence punishable u/s 104 of Trade Marks Act, 1999. Raids were also conducted at M/s Chemical and Scientific Instruments as well as M/s Arun Chemicals and Scientific Industries at Jawahar Nagar, Delhi and large amount FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 3 of 18 of pirated goods were also found there. On these allegations, the present FIR was registered at PS Roop Nagar.
2. After investigation, charge sheet was filed against the accused all four accused persons (purported owners of the aforementioned three businesses) i.e. Surinder, Ved Prakash, Brij Bhan Mishra and Subhash Chander. Cognizance of offence(s) was taken and accused were summoned to face trial. Upon appearance, copy of charge sheet was supplied to accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C). Thereafter, charge u/s 102/103/104 of Trade Marks Act, 1999 was framed upon all four accused on 04.05.2009 to which they pleaded not guilty and claimed trial. Accused no. 2 Ved Prakash had already been convicted vide order dated 01.08.2011 and proceedings qua accused no.3 Brij Bhan Mishra as well as Subhash Chander had abated during trial.
3. To substantiate the allegations made against the accused persons, prosecution examined six witnesses:-
PW-1 ASI Sushila testified that she was duty officer at PS Roop Nagar on 30.04.2005 from 9 a.m to 5 p.m and at about 3 p.m she received rukka from Ct.
Surinder Negi sent by SI Sanjay Sharma for registration of case. Accordingly, she recorded FIR No. 114/2005 Ex.PW1/A in her handwriting bearing her signature at point A. The endorsement Ex.PW1/B on the rukka was made by her.
4. PW-2 Ct. Surinder Negi testified that on 30.04.2005 SI Sanjay Sharma handed over a rukka at about 2 p.m to him at PHQ for getting the case registered at PS Roop Nagar. He went to PS Roop Nagar at about 3 p.m where he handed over the rukka to the duty officer and got the case registered having FIR No. 114/05.
FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 4 of 18 After registration of the case, he handed over the copy of FIR along with original rukka to SI Sanjay Sharma in the PS itself. IO recorded his statement. During cross-examination by ld. counsel for the accused, he stated that the rukka was handed over to him at 2 p.m at PHQ. He denied the suggestion that he had not taken the rukka to PS or that his statement was recorded by the IO on his own.
5. PW-3 Kishore Pandurang Sahani had testified that in 2005 he worked as a Chief Manager with M/s Borosil Class Works Ltd. and he was Authorized Representative of the company. During that period, they came to know that some unknown persons in Delhi were indulged in selling their duplicate products i.e. scientific glass wares which were exclusively manufactured/sold by the company under the brand name of Borosil. Sh. Sanjay Sapru, AR was authorized by the company to file a case against those unknown persons. A complaint was filed in the court of Ld. CMM which was Ex.PW3/A bearing signature of then AR Sh. Sanjay Sapru (Signatures of Sanjay Sapru were duly identified by the witness) at point B. He stated that on 30.04.2005 he went to the office of EOW Crime Branch (PHQ) and apprised the police about the search and seizure warrants and thereafter at his instance the action was taken. His complaint given to police at crime branch was EX.PW3/B bearing his signature at point X and on the said complaint, the case was registered. He was also having the information that one Subhash Chander and Surinder of M/s Neeraj Scientific, were indulged in selling of their duplicate products. Thereafter, a raiding party was formed comprising him and police officials under the supervision of SI Sanjay Sharma and at about 2 p.m, they went to PS Roop Nagar where IO made the DD entry regarding the raid and at about 2.30 p.m, they reached at the main gate of Hansraj College where SI Sanjay Sharma briefed the members of the raiding party and asked 4-5 public persons to join FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 5 of 18 the raiding party. Initially no public person joined the investigation but later on some local persons came there. At about 2.40 p.m, the raiding party reached at M/s Neeraj Scientific Works, New Chandrawal, Delhi, where accused Surinder was present (accused was correctly identified the witness in court). PW-3 Kishore Pandurang Sahani had deposed that they apprised accused about the purpose of raid and thereafter the search of the shop was conducted and during the raid, they found duplicate/spurious products of their company i.e bottles, beakers etc. and various other items. There was lathe machine inside the premises which was being used for manufacturing. All the product were checked by him and they were found to be duplicate. The entire recovered goods were packed by IO in gunny bag and same was duly sealed. The bag was taken in possession and seizure memo Ex.PW3/A bearing his signature at point A on all the pages was prepared. Accused Surinder was arrested in his presence. Pirated goods recovered from the accused, were kept in two gunny bags and the same were sealed with the seal of 'RS'. The items recovered from accused Surinder were consisting of pipette flask, bottles, funnels etc. and all of them were pirated. Accused Surinder did not produce any authority for possession of seal of Borosil Company. Further raid was conducted at shop of M/s Chemical and Scientific Instrument in the Jawahar Nagar which belonged to Brij Bhan Mishra and from his shop, duplicate/spurious glass article/scientific of their company Borosil was recovered. The goods were Petri dish, bottles, flask, beakers etc., were recovered and they all were checked by him and found to be duplicate. These articles were kept by the IO in four gunny bags which were sealed with the seal of 'RS' and seized vide memo Ex.PW3/B bearing his signature at point A. The accused also could not produce any authority from their company. Documents were seized from Brij Bhan Mishra and the seizure memo Ex.PW3/C was prepared bearing his signature at point A. The documents were also seized from accused surinder FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 6 of 18 and seizure memo Ex.PW3/D was prepared. Thereafter, further raid was conducted on the same day on M/s Arun Chemical at Jawahar Nagar belonging to the accused Ved Prakash and duplicate and spurious goods were recovered. (Proceeding qua accused Ved Prakash had concluded through plea bargaining). Goods recovered from accused Ved Prakash were seized and sealed with seal 'RS' and were taken into possession vide memo Ex.PW3/E. Documents seized from Ved Prakash were exhibited as Ex.PW3/F. PW-3 further testified that accused Surinder was arrested and arrest memo Ex.PW3/G was prepared. Arrest memo of accused Ved Prakash was Ex.PW3/H and of accused Brij Bhan Mishra was Ex.PW3/I. Personal search was conducted and the corresponding personal search memo was Ex.PW3/A. Disclosure statement of accused surinder was recorded and the same was Ex.PW3/J, the personal search memo of accused Surinder was Ex.PW3/K, of accused Brij Bhan was Ex.PW3/L and of accused Ved Prakash was Ex.PW3/M all bearing his signature at point A. During investigation, it came to light that accused Surinder and one Subhash Chander were partners of Neeraj Scientific Works. Case property was shifted to mallkhana. PW-3 further testified that his statement was recorded by IO. The notarized power of attorney in favour of PW-3 issued by Borosil Company was marked as Mark X-1 (not traceable). The original trade mark certificates of his company were Ex. PW3/N and Ex. PW.3/O respectively. The trademark 'Borosil' was used by their company and goods recovered from accused bore the same trademark and accused had violated the said trademark. During trial, PW-3 correctly identified all the recovered case property which were exhibited as Ex. P-1 and Ex. P-2 (colly).
During cross-examination by ld. counsel for the accused, he testified that presently he was not the employee of the complainant company and had left the company in the year 2008. He had power of attorney in his favour to pursue the present case and had brought the power of attorney executed on FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 7 of 18 22.03.2016, the certified copy of the same was exhibited as Ex.PW3/DA. He deposed that they went to the spot for the purpose of raid and at around 2:30 p.m they reached at Hansraj College gate and at around 6.30/7.00 p.m they reached the PS after completing the proceedings of the raid. They completed the formalities at the PS and then they left at about 8:30 p.m. First of all they went to the premises of Neeraj Scientific at New Chandrawal Lane where Mr. Surinder met them. They reached at the premises of Mr. Brij Bhan Mishra at about 4.30 p.m on 30.04.2005 at Jawahar Nagar, Delhi. He admitted that even on the left side and right side of the premises of Mr. Brij Bhan Mishra, other commercial premises were in existence and the occupants of those neighboring premises were busy in doing their work. He did not remember whether the police officials requested any occupant of the neighboring premises to join the investigation. Mr. Brij Bhan Mishra was present in his premises. He had not looked at any stock register of Mr. Brij Bhan Mishra to confirm the articles lying in the said premises. No photography or videography was done while taking the articles from the premises of Mr. Brij Bhan Mishra. He signed the seizure memo but he did not remember as to who else signed it. Apart from the case property being the borosil product, he did not know what other articles were recovered. He did not know whether any document was seized by the police regarding the connection of the accused Brij Bhan Mishra with the said raided premises. He admitted that he was not shown any document by the police officials to state that they were recovered from the premises of Mr. Brij Bhan Mishra. He did not remember whether he saw any bill book at the premises of Mr. Brij Bhan Mishra. He admitted that Mr. Brij Bhan Mishra had not sold any borosil product to any person in his presence on 30.04.2005. He could not state as to what were the measurement of the premises of Mr. Brij Bhan Mishra. He did not remember as to what were the names of shops/establishment in the neighborhood of the premises of Mr. Brij Bhan FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 8 of 18 Mishra. The recovered material was put in boxes and then packed in a gunny bag after being counted, numbered and sealed with the seal of RS. He did not know whether the seal was handed over to someone else by the IO or it was kept by him with himself. He did not remember as to how many papers were signed by him. He signed one seizure memo of borosil products and another paper containing his statement. He did not know which other documents were signed by him. He did not remember whether he signed any document at the police station or not but he waited there for about two hours till the proceedings of arrest were going on. He had not met the police officials at any point of time after 30.04.2005. The accused Surinder had disclosed to the raiding team that he was supplying goods to the accused Brij Bhan Mishra. He did not remember whether the police seized any bill/invoice/document to show that any goods were supplied by Surinder to Brij Bhan Mishra. He also did not remember whether any invoice/bill/document was recovered from the premises of Brij Bhan Mishra to show that any such goods were supplied by Surinder to Brij Bhan Mishra. He denied the suggestion that he ever visited the premises of accused Brij Bhan Mishra or that nothing was recovered in his presence or that no disclosure was made by Surinder in his presence or that no proceedings had taken place in his presence or that he signed the papers at the police station at the behest of the IO or that he had deposed falsely. He denied the suggestion that the said premises of Mr. Brij Bhan Mishra was never raided in his presence or that he had been falsely implicated in the present case or that he was falsely implicated in the present case as he had ceased to deal in their products and was dealing in the products of their company. He did not know whether Mr. Brij Bhan Mishra was earlier dealing in borosil products. He could not comment on the suggestion whether Mr. Brij Bhan Mishra had stopped dealing in borosil products as many manufacturing complaints were being raised by the customers in respect of borosil products. He denied the FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 9 of 18 suggestion that the present case had been falsely registered against accused Brij Bhan Mishra only with a view to root out their competitors or that Mr. Brij Bhan Mishra was causing losses to their company in two ways, one by not selling their products and another by selling their competitor's products. He did not recollect whether his statement was recorded in the court. It was on 27.05.2013, 05.09.2013, 26.11.2013, 21.08.2014 and 03.11.2017. He had left the job of the company in the year 2008 and regarding making of the statement in the court on behalf of company, he had not filed since it was not asked except Ex.PW3/DA. He admitted that he had not filed any attorney after leaving his job in the year 2008 pertaining to making of the statement prior to 22.03.2016. He was not aware regarding the numbers of the directors of the company. The attorney was signed only by one director of the company. He denied the suggestion that the said document was not issued by the company. They reached at Neeraj Scientific Work at 5760, Gali no. 6, New Chandrawal, Delhi. On enquiry, Sh. Surinder disclosed the fact that he was a partner of 20% in the business and 80% partner was Mr. Subhash Chander. He denied the suggestion that accused Surinder was working as an employee of Sh. Subhash Chander and was not having concern with any partnership business. In his presence, the status of the shop was not confirmed by the IO. He did not know if any document of the ownership or rent agreement etc. was collected by the IO. He admitted that near the shop Neeraj Scientific there were several shops. He did not remember whether any person was asked from nearby shop to join search proceedings to be carried out in premises no. 5760, Gali no. 6, New Chandrawal, Delhi, in the search conducted by the police was only in his presence as well as in the presence of police official and no public person had signed in his presence. He denied the suggestion that the procedure of search was not taken in the premises as well as by police and himself. They had taken out the sample from premises no. 5760, Gali no. 6, New Chandrawal, Delhi FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 10 of 18 and he had given the same to police/IO for testing the same whether the articles recovered were genuine or not and that sample given by him were seized by the police. He did not remember whether the seizure memo of the same was prepared. He did not know if the same was sent to FSL. He denied the suggestion that Surinder being employee was falsely implicated and having no concern with the business run by Neeraj Scientific at the above mentioned address. He denied the suggestion that there was no duplicate or spurious product ownership was taken into possession by IO regarding the lathe machine lying in the premises. The seizure memo of the said machine was prepared but as was embedded on the ground it was sealed at the spot itself. He did not remember if any document as regards the ownership was collected by the IO. He denied the suggestion that no such product or machine was recovered from the possession of Surinder who was merely an employee and had no concern with running of the business or that there were no spurious/duplicate articles recovered by them or that the articles recovered by them were genuine. He could not tell the number of items seized by them from the said premises but the same was in sizable quantity. Two boxes were sealed. He did not remember if the lathe machine was taken into possession by the police. He admitted that only two gunny bags were sealed by the police. He denied the suggestion that case property were not produced before the court intact and in whole or that accused Surinder had no concern with the running of the business in the said shop. He denied the suggestion that he was deposing falsely.
6. PW-4 Sharad Hatte, MTS, Trademark Registry, testified that he had brought certified copies of trademark certificate bearing trademark no. 427790 and 427789 certified by Examiner of Trademarks, Govt. of India. The certified copies were Ex.PW4/A (colly).
FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 11 of 18
7. PW-5 Retired SI Satbir Singh testified that he joined raiding party on 30.04.2005 along with SI Rajender Singh, SI Sanjay Sharma, SI Amit, SI Suraj Prasad and PW-3. He deposed on the same lines as PW-3 regarding the raid conducted on that day. He additionally testified that accused Surinder was 20% partner of Neeraj Scientific Works. He also testified that one machine was also seized during the raid. He also testified that seal after use was handed over to K. P. Sahani and a handing over memo was prepared, which was exhibited as Ex.PW5/A bearing his signature at point A. During cross-examination by ld. Counsel for the accused he stated that he remained posted in EOW from January 2005 to 2009. Complainant Sh. K.P. Sahni came in the office of EOW and gave the information in writing on the same day. The arrival and departure entry was being made by Incharge of the raiding team and on that day of raiding, the same was also made by the Incharge. There was no separate DD entry of every member of raiding team and at the spot, they met only with accused Surinder who told them that he was a partner of Subhash Chander. He denied the suggestion that neither he was member of raiding team nor he visited the spot. He did not know whether IO obtained any document from complainant to show that alleged recovered articles were fake or genuine. He did not know if complainant gave any specification regarding the difference between original and fake articles. He denied the suggestion that nothing was recovered in his presence or that accused had been falsely implicated in the present case or that all the writing work was done while sitting in the office of EOW or that he was deposing falsely.
8. PW-6 ACP Sanjay Sharma in addition to the facts already deposed by earlier witnesses testified that on 30.04.2005 he was SI in trademark section, EOW, Delhi Police and on that day, PW-3 came to his office along with order passed FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 12 of 18 by Ld. ACMM. On the basis of the same he prepared rukka bearing his signature at point B. Rukka was handed over to PW-2 who got the FIR lodged at PS Roop Nagar. PW-6 deposed qua the raid on same lines as deposed by PW-3 and PW-5. He arrested accused Surinder, conducted his personal search and also recorded his disclosure statement. He also arrested the other accused namely Ved Prakash, Brij Bhan and Subhash Chander. He additionally testified that when he deposited the case property in mallkhana it was in sealed condition and he did not know how and in what manner the seal was found broken when the case property was produced in court. During cross- examination by ld. Counsel for the accused, he admitted that in the complaint Ex.PW3/B the address of the place to be raided was not mentioned and they had directly gone to the premises of the accused Surinder to conduct the raid. He denied the suggestion that they first of all raided the company premises of owner Brij Bhan Mishra and at the instance and disclosure of Brij Bhan Mishra they raided the premises of the accused Surinder. He denied the suggestion that accused Surinder has been falsely implicated in the matter at the instance of Brij Bhan Mishra and Ved Prakash or that accused Surinder was not present at the spot i.e. Neeraj Scientific Works, 5760, Gali No. 7, Chandrawal Road, Roop Nagar or that accused Surinder was only an office boy and he had nothing to do with the operation of Neeraj Scientific Works. He voluntarily stated that he was the partner of Neeraj Scientific Works. The disclosure statement of accused Subhash Chander Ex.PW5/C showed that accused Surinder was a partner of Neeraj Scientific Works. He had not stated about Surinder being partner of Neeraj Scientific Works in his examination-in-chief recorded earlier. There was no partnership deed to his knowledge of Neeraj Scientific Works. He denied the suggestion that the entire proceedings and investigation in the present matter was done sitting at the PS and not at the spot. He denied the suggestion that he had never visited the spot on 30.04.2005 FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 13 of 18 or that no proceedings were conducted at the spot qua the accused on that day or that the accused Surinder was forced to sign on blank papers by him and later on those papers were converted into various memos and other documents which were filed with the charge-sheet.
9. Thereafter, prosecution evidence was closed vide order dated 19.05.2023. Statement of accused Surinder under section 313 Cr.P.C was recorded on 31.05.2023 wherein he stated that he was an employee/daily wager at Neeraj Scientific Works and he had been falsely implicated in the matter. He elected to lead defence evidence. Three witnesses were examined by him in his defence.
10.Accused Surinder himself examined as DW-1. He testified that in the year 2005 he was working as office boy at the shop on daily wage of Rs. 50/- per day. One day the owner of the shop was not in the shop and he was present there, some persons came and asked about his whereabouts. He did not know who those persons were. They asked him about the owner of the said shop. They commented that the articles of the said shop were duplicate. Those persons spoke to his owner Subhash Chander on phone, he was present at the shop till the evening. Those persons took him to police station as his owner had not turned up at the shop. He was beaten by those persons. He had given the land-line number of his owner. He was not allowed to left as his owner had not turned up. His signatures were taken on some papers. He was kept in the custody till next morning and was falsely implicated in the present matter. During cross-examination by Ld. APP for the State, he admitted that he had not stated the date, time and place of incident and the alleged owner's name in his examination-in-chief. He admitted that he did not make any complaint against those officers who took him to PS, took his signatures and allegedly beat him. He denied the suggestion that he was the owner/responsible person of shop no.
FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 14 of 18 5760, Gali No. 6, Ground Floor, New Chandrawal, Delhi and that the articles which were bearing the falsified trademarks of Borosil were recovered from his possession. He denied the suggestion that he had framed a concocted story that he was not the owner/responsible person of the above said shop and that he was falsely implicated in place of real owner. He denied the suggestion that he was dealing in articles bearing falsified trademarks of Borosil from the said shop or that he had deposed falsely in order to save himself.
11.DW-2 Sh. Vinod Kumar testified that he was doing the work of Kharad (Lath Machine) since 1990. He had been supplying iron pieces to Neeraj Scientific Works. He used to deal with Subhash Chander in relation to the business of Neeraj Scientific Works. The accused was an employee at Neeraj Scientific Works. He was a labourer at Neeraj Scientific Works. He saw the accused working at Neeraj Scientific Works for only three-four months. He used to receive payments for goods supplied and the payments was made by Subhash Chander to him. During cross-examination by Ld. APP for the State, he testified that he did not have any bill for any work order received by him from Neeraj Scientific Works. He never saw any document for the ownership of Neeraj Scientific Works. He stated that Mr. Subhash Chander was the only owner of Neeraj Scientific Works only based on his assumptions. He never saw any register/document showing that accused Surinder was working as labourer with Subhash Chander. He did not know in which period he had seen accused Surinder in Neeraj Scientific Works. He denied the suggestion that he never dealt with Neeraj Scientific Works and that was why he could not produce any documents qua the same. He denied the suggestion that he had deposed falsely only to save the accused from criminal liability as he knew that accused Surinder was partner of 20% shares in Neeraj Scientific Works.
FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 15 of 18
12.DW-3 Deepak Arora, Senior Manager Union Bank of India, had testified that certified copies of account of M/s Neeraj Scientific Works with account no. 314 was opened on 23.07.1998 at his branch. As per the form, the account had been opened as proprietary concern with name of proprietor as Mr. Subhash Chander, R/o 5760, Gali no. 6, New Chandrawal, Delhi-07 and he had submitted the account opening form which was exhibited as Ex.DW3/A. He had also submitted the certified copies of his driving licence no. HR- 1320030018069 which was exhibited as Ex.DW3/B dated 29.01.2003 issued by RTO, Bahadurgarh. He had also submitted the certified copy of Ration card no. 620898 which was exhibited as Ex.DW3/C issued by Bahadurgarh Authority. A letter of declaration of proprietorship submitted by Mr. Subhash Chander for account no. 314 which was exhibited as Ex.DW3/D and for the account named Neeraj Scientific Works was also annexed in certified copy. He had also submitted certified copy of the request letter submitted by the proprietor Mr. Subhash Chander to the Branch Manager, Corporation Bank (now Union Bank of India) for seeking permission to open current account in branch which was exhibited as Ex.DW3/E. He had also placed on record the original of all the above for verification of the certified copies submitted. During cross-examination by Ld. APP for the State, he admitted that he did not have any personal knowledge regarding the present matter. He also admitted that by the bank account it could be said that the said firm was not a partnership firm or that any other person apart from the operator of account of the said firm was partner in it or not. He denied the suggestion that the documents produced by him were false and fabricated in order to favour the accused.
13.Defence evidence was concluded on 05.08.2023. Final arguments were heard on 21.08.2023. Section 103 of The Trade Marks Act, 1999 makes punishable FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 16 of 18 an act of a person who falsifies any trade mark or applies any false trade description to any goods or services, or he has in his possession any dye, logo, machine, plate or any other instruments for purpose of falsifying a trade mark. Section 104 of The Trade Marks Act, 1999 makes punishable any act of sale, let for hire, or exposure for sale or hire, or has in his possession for sale any goods to which false trade mark and false trade deception is applied. My observations on the evidence tendered in the case are delineated hereinafter.
14.Accused Surinder is facing trial as allegedly on 30.04.2005, he was found in possession of instruments for applying falsified trademarks/trade names on goods. He is also facing trial as he was found in possession of articles with false trademark 'BOROSIL' which was deceptively similar to trademark 'Borosil Glass Works Ltd.'. All the aforementioned articles were recovered from Neeraj Scientific Works situated at House no. 5760, Gali no. 6, Ground Floor, New Chandrawal, Delhi. The case property seized at the time of raid was duly sealed as per the seizure memo Ex.PW3/A, however when the case property was produced in court, some of it was unsealed and on the remaining, the seals were found to be broken and the same were also not visible. Even the gunny bag containing the case property was found to be torn. The bag found inside the gunny bag was also torn. Some of the glass instruments were also found to be broken. Moreover, the entire case property was not produced at once. When the complete case property was produced, the same was not countable and it was separate from the cardboard boxes which ought to have contained the same. Since the case property is not produced properly, so the possibility of tampering or replacement of case property cannot be ruled out. How and why the case property got damaged is not even sought to be explained. It cannot be stated with certitude that the case property is the same as mentioned in the various seizure memos prepared during raid.
FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 17 of 18
15.The prosecution witnesses including the IO and the complainant categorically stated that public persons were present at the time of raid. Moreover, Neeraj Scientific Works is situated in a residential area and it also seems that there were other enterprises running in the vicinity of Neeraj Scientific Works. Why no independent public person was made part of the raiding party is beyond the comprehension of this court. Section 100(4) Cr.P.C has not been complied with. Prosecution witnesses did testify that IO asked people to join the raiding party but they refused. Why no notices were given to such persons to join investigation? Why the names of such persons were not recorded by the IO in his investigation and why no action was taken against these persons is beyond the comprehension of this court but the benefit of this lacuna must also accrue to the accused.
16.Lastly, the accused is facing trial as the IO stated that he was having 20% share in the partnership firm Neeraj Scientific Works. IO submitted that the accused himself and the co-accused Subhash Chander disclosed about the share of Surinder in Neeraj Scientific Works. Except these two disclosures there is nothing on record to show that the accused Surinder owned any share in Neeraj Scientific Works. The disclosure allegedly made by the accused Surinder to the IO is not admissible as the same is hit by section 25 of The Indian Evidence Act, 1872. The admission made by the co-accused can not be given much credence, unless the same is corroborated by other independent evidence available on record and unless the co-accused has owned up to the admission. The IO made no effort to find out from the owner of premises about the person who took on rent the premises to run Neeraj Scientific Works. No partnership deed is placed on record by the prosecution to show that Surinder was a partner of Neeraj Scientific Works. No bank statement or other documents are placed FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar Page 18 of 18 on record which can show that Surinder was partly owning Neeraj Scientific Works. On the other hand the accused examined the Banker of Neeraj Scientific Works as DW-3 who produced on record the account opening form and the documents submitted in the bank at the time of opening of bank account. Perusal of these documents shows that Neeraj Scientific Works is a proprietorship and the proprietor of the same was Subhash Chander. In-fact Subhash Chander gave letter of proprietorship to the bank duly signed by him declaring himself to be the proprietor of Neeraj Scientific Works. This bank account was opened in 1998 i.e. much prior to the date of the raid in 2005. There is no evidence on record to show that Surinder was subsequently admitted as a partner in Neeraj Scientific Works. All the other defence witnesses also stated that Surinder was only an office boy in Neeraj Scientific Works and he did not own or manage its business. Hence, the recovery from the premises of Neeraj Scientific Works can not be said to be the property of Surinder and he can not be held liable for the same. The case property can also not be termed to be recovered from his possession. Clearly significant doubts have crept into the case of the prosecution and it is sufficient to state that the case against Surinder is not proved beyond reasonable doubt, hence he is acquitted of the offence punishable u/s 103/104 of Trade Marks Act, 1999.
Announced in the open court on 31st August, 2023 (ANURAG THAKUR) METROPOLITAN MAGISTRATE -02 TIS HAZARI COURTS, DELHI This judgment consists of 18 pages and each and every page of this judgment is signed by me.
FIR no. 114/2005 State v. Surinder & Ors. PS Roop Nagar