Punjab-Haryana High Court
Kewal Krishan Kumar And Others vs Khush Dil Kapoor And Another on 25 September, 1998
Author: S.C. Malte
Bench: S.C. Malte
JUDGMENT S.C. Malte, J.
1. Petitioners-accused have moved this petition under Section 482, Cr. Procedure Code, for quashing the proceedings initiated on the basis of the complaint filed by respondent No. 1 against the petitioners. Respondent No. 1 complainant filed a complaint in the Court of Judicial Magistrate Ist Class, Faridabad against the petitioners-accused alleging various offences under the Indian Penal Code. The learned Magistrate, after taking into consideration the preliminary evidence led by the respondent-complainant, issued consideration the preliminary evidence led by the respondent-complainant, issued process against the petitioners-accused to face trial under Sections 420 and 500 of the Indian Penal Code.
2. Petitioners are admittedly the proprietors of the registered trade mark "Shakti Bhog". The respondent-complainant contends that he bona fide believed the representation by accused No. 1 that the said registered trade mark pertains to manufacturing and marketing spices and condiments also. On that belief, the complainant claims to have entered into an agreement dated 5-4-1991 with the petitioners and obtained a licence to use the trade mark "Shakti Bhog" for the purpose of production and marketing of spices and condiments in consideration of 5 per cent of the gross sales effected by him. The terms and conditions of the agreement are mentioned in Annexure-P3, and a detailed reference to it at this stage is not necessary. The complainant started manufacturing his product in terms of that agreement. It appears that thereafter, sometime from April 1992, there appeared some difference of opinion between the parties as to the use of the trade mark "Shakti Bhog" by respondent No. 1 complainant. The papers also indicate that the petitioners has also taken some steps to move the Ministry in order to restrain him from using the trade mark. Further, admittedly on 9-9-1992 the petitioners had filed a civil suit to restrain the respondent-complainant from using the trade mark "Shakti Bhog". The admitted position is that the question regarding injunction to use the trade mark was thrashed in the High Court at Delhi, and Their Lordship vide order dated 7-5-1993 had granted an injunction against the respondent-complainant to prevent him from using the trade mark "Shakti Bhog". That was an interim injunction order.
3. In the context of these contentions and litigation between the parties, it is pertinent to note as an important face that in the civil suit in respect of the injunction restraining the respondent from using the said trade mark, the parties arrived at a settlement in the suit and the matter before Delhi High Court was ordered to be disposed off in terms of the compromise. That order passed on 28-4-1995. In the course of arguments before this Court a photostat copy of the said compromise has been filed. At a later stage, I will refer to the relevant part of it.
4. In the light of these sequence of events, the complaint filed by the respondent No. 1 deserves to be considered. The complainant claims that accused/petitioners by misrepresenting him that the said trade mark pertains to spices and condiments also, prevailed upon him to execute the agreement referred to above, for a consideration of 5 per cent of the gross sales, and thereby committed the offence of cheating. His further contention was that the petitioners by publishing public notices against the respondent has tarnished his reputation and business in the eyes of general public. It was further submitted that the petitioner by filing a false complaint before the police against the respondent made the police to take action against respondent No. 1 complainant. In the course of that action the factory premises of respondent-complainant was searched by the police, and he had to face humiliation and defamation in the eyes of the persons around him. Thus, according to him, the offence under Sections 420/500, I.P.C. has been spelt out.
5. After getting the complaint the Magistrate seems to have undertaken enquiry under Section 202, Cr.P.C. and recorded the statements of the complainant and his witnesses. After considering the material before him, the Magistrate was of the view that the witnesses have supported the averments made by the complainant and thus offence under Section 420, I.P.C. was spelt out. He further observed that the accused-petitioners by filing a complaint against the respondent-complainant, have defamed him inasmuch as the complaint thus filed, came to be disposed off by the police by observing that no commission of offence was spelt out from the averments in that complaint.
6. Learned counsel for the petitioners submitted before me that the Magistrate should have taken into consideration various factors that reveal that the dispute between the parties was of civil nature, and has been finally decided by the Civil Court. It was further submitted that the Magistrate did not consider the question of territorial jurisdiction.
7. Learned counsel for the respondents submitted that the petition for quashing the complaint is not competent inasmuch as, against the order directing the petitioners to appear before the Court to face a trial, petitioners could have filed a revision petition. It was further submitted that the petitioners should have appeared before the lower Court and could have placed their side before the trial Court itself so as to enable the trial Court to take a view.
8. The exercise of power Section 482, Cr.P.C. for the purpose of quashing a complaint should be sparingly used. The normal rule is that, a party aggrieved by the order of summoning can appear before the trial Court to place his side so as to enable the trial Court to take a view as to whether the accused should be discharged or should be proceeded against. To this general approach there can be some exceptions also. If the admitted facts and turn of events subsequently, necessitate exercise of powers under Section 482. Cr.P.C. In this case I find that in view of the compromise between the parties in the civil suit in respect of the injunction to use the trade mark "Shakti Bhog", the matter deserves to be considered. As mentioned above, the complainant who seems to operate under the name and style Akash Spices and Food Industry, was a party to the civil proceedings. A copy of the order dated 7-5-1993 passed by Delhi High Court in the matter arising out of that civil suit is at Annexure P12. The subject matter of the suit was to restrain the defendants in that suit (present respondent/complainant) from using the trade mark "Shakti Bhog". Delhi High Court had granted an interim injunction and, thereby, restrained the present respondent/ complainant from using the aforesaid trade mark. In that suit, the parties arrived at a compromise. A photostat copy of the compromise indicates that the present respondent/complainant has in clear words admitted and confirmed that the present petitioners were the proprietors of the trade mark "Shakti Bhog" in respect of consumer edibles, food products or any other goods for human consumption including spices and condiments. That clause of the compromise sets at rest the controversy as to whether the trade mark "Shakti Bhog" also covers the product of spices and condiments. The terms of the compromise further indicate that the present respondent/complainant has undertaken not to use or cause to be used the said trade mark in any manner whatsoever, Clause 3 of the compromise pertains to the disposal of packing material etc. which bear the said trade mark while it was being used by the respondent-complainant. Clause 4 of it indicates that respondent/complainant has no objection to certain steps taken by the petitioners for registration of the trade mark under certain applications as per Clause 3 of the Trade Marks Act. In consideration of that compromise, the petitioners have foregone the claim for rendition of accounts and royalty. Finally it is stated that the parties do not have any other claim against each other and they agreed to bear their own costs. In view of this compromise, it is quite clear that insofar as it pertains to dispute between the parties in respect of use of the trade mark "Shakti Bhog", the matter has been set at rest subsequent to the issuance of the impugned order by the Magistrate by which the petitioners were called upon to face trial under Sections 420/500 I.P.C.
9. Learned counsel for the petitioners strongly relied on a case of Central Bureau of Investigation, SPE, SIU(X) New Delhi v. Duncans Agro Industries Ltd. Calcutta (1996 SCC (Crl.) 1045). In that case Their Lordship concluded that since the civil suit between the parties has been compromised on receipt of payment, which also was the subject matter of the complaint in question, the complaint need not be pursued further. Their Lordship further observed that in the set of circumstances arising and of the same facts that gave rise to the complaint, further proceedings of the complaint would not be expedient. These observations would certainly be applicable in the present case also. In this case it clearly appears that the respondent/complainant entered into an agreement with the petitioners and got a licence to use the trade mark "Shakti Bhog" because it was then believed that the said trade mark covers spices and condiments also. In the complaint also the respondent/complainant has in clear words indicated that he was benefited by the use of the trade mark; and the obstacles created by the petitioners to prevent they respondent/complainant from using the said trade mark is causing loss to him. It may further be noted that in the course of civil litigation, Delhi High Court while passing an interim injunction has observed that by using the trade mark the present respondent/complainant had led the public to believe that the spices and condiments produced by him carry a reputation of the trade mark "Shakti Bhog". At any rate, the respondent/complainant also claims to have obtained some benefits by the use of the said trade mark. Under these circumstances, and particularly in view of the compromise referred above, in my opinion no case for the offence under Section 420, I.P.C. survives.
10. The question then remains as to the issuance of process under Section 500, I.P.C. The complainant claims that he was defamed due to public notices issued by the petitioners, thereby informing the general public that the respondent/complainant was not entitled to the use of said trade mark. According to him, it was in violation of the terms of the agreement inasmuch as the agreement was not terminated in terms of Clause 13 of that agreement which gives an option to either party to terminate the agreement by giving notice. Since the agreement thus provides for termination of the same on the option of the parties, it remains only a matter of course to be adopted to inform regarding termination of agreement. It appears that by issuing public notice, it was made clear to the public and also to the complainant that the agreement stood terminated. Such termination, at the most, would give rise to civil liability. However, that question may not survive in view of the compromise referred above.
11. The other ground on which the respondent/complainant claims that he was defamed is that the petitioners by filing a complaint under Sections 77, 78 and 79 of the Trade and Merchandise Marks Act, made the police to take necessary action, as a result of which the factory premises of the complainant was raided by the police, and he had to face humiliation and it gave publicity to the surrounding areas that respondent/complainant was illegally using the said trade mark. In my opinion it clearly appears that the petitioners having some objections to the use of the trade mark, have taken some steps under the legal provisions. As such, prior to that they had already issued a public notice in the papers and thereby made it quite clear that they thenceforth do no intend the use of the said trade mark by the complainant. In view of that, the parties could have very well sorted out their dispute. However, the matter seems to have taken a turn in the shape of criminal litigation. Moreover, there is no case that police formed opinion that the petitioner, without any justification and truth in the allegations caused the police to use its powers for raiding the premises of the complainant. Briefly stated there is no case by the police under Section 182 I.P.C. However, since the matter is compromised in the civil suit between the parties in respect of the same controversy regarding the use of the trade mark, in my opinion, it would not be now expedient to proceed with the complaint any further.
12. In that set of circumstances, petition allowed. The order dated 6-3-1997 passed by the Judicial Magistrate Ist Class, Faridabad, in Criminal case/complaint No. 855/1 dated 14-9-1995/96 stands hereby set aside; and the complaint stands quashed.
13. Petition allowed.