Gujarat High Court
Rfcl vs State on 8 March, 2010
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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SCR.A/343/2010 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 343 of 2010
With
SPECIAL
CRIMINAL APPLICATION No. 344 of 2010
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RFCL
LIMITED
Versus
STATE
OF GUJARAT & OTHERS
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Appearance :
Special
Criminal Application No.343 of 2010
Mr.
Sudhir Chandra Agarwal, Senior advocate, with Mr. Rajesh Batra with
Mr. Aparajit Bhattacharya, with Mr. Brijrajsinh Jhala for the
petitioner.
Mr.
L.R. Poojari, APP, for respondent No.1
Mr.
P.M. Thakkar, Senior Advocate with Mr. R.C. Jani for respondent No.2
Mr.
B.B. Naik, Senior Advocate with Mr. R.C. Jani for respondent No.3
Special
Criminal Application No.343 of 2010
Mr.
K.S. Nanavati, Senior Advocate, with Mr. Brijrajsinh Jhala with Mr.
Nigam Shukla for the petitioner
Mr.
L.R. Poojari, APP, for respondent No.1
Mr.
Mihir Thakore with Mr. Rakesh Gupta with Mr. K.B. Naik for M/s.
Trivedi & Gupta for respondent No.2
Mr.
B.B. Naik, Senior Advocate with Mr. Rakesh Gupta with Ms. Pooja
Guptafor M/s. Trivedi & Gupta for respondent
No.2
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 08/03/2010 COMMON ORAL ORDER
1 On 25th February 2010, the learned Single Judge passed the following order:
Learned Senior Advocate Shri P.M. Thakkar with Shri R.C. Jani at the pre-notice stage prayed for adjournment.
At his request, adjourned to 8.3.2010.
Till then, the petitioner shall not be arrested without permission of the Court.
2 These petitions under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, Trade Marks Act, Trade & Merchandise Marks Act, 1958 and Copy Right Act, 1957, challenge First Information Report No.15 of 2009 lodged with State CID (Crime) Police Station, Gandhinagar Zone, for the offences punishable under Sections 406, 471,120B of the Indian Penal Code, 1860, Section 102(1)(b) of the Trademarks Act, 1999, Section 81(1)(a) of the Trade and Merchandise Marks Act, 1958 and Sections 63 and 64 of the Copy Right Act, 1957 on the ground that the averments made in the first information report do not disclose ingredients of the offences for which the first information report is filed.
3 Mr. Sudhir Chandra Agarwal and Mr. K.S. Nanavati, learned counsel for the petitioner, have referred to the averments made in the first information report and submitted that there is no breach of trust for attracting Section 406 of the Indian Penal Code, nor is there any averment in the first information report pertaining to false or forged document by the petitioner attracting Section 471 of the Indian Penal Code. That, when the dispute pertaining to ownership and other rights flowing from the relevant Acts is pending before the Civil Courts, the impugned first information report is nothing, but gloss of a civil dispute for which the parties have taken recourse to settlement process. Learned counsel invited attention of this Court to various provisions of Trademarks Act and Indian Penal Code and agreements dated 1.2.2001, 1.1.2004, 2.12.2005, 1.1.2005, 20.11.2006, 1.12.2006 and submitted that the petitioner is absolute owner of trademark 'Capsola' for which there is no dispute. On the basis of the materials seized by the police, ultimately, the investigation might have to be made, but the fact remains that the parties have already taken steps to protect the civil rights.
4 Mr. P.M. Thakkar, Mr. Mihir Thakore and Mr. B.B. Naik, learned counsel appearing for the respondent-complainant have vehemently opposed the petitions under section 482 of the Code on the ground that the first information report does disclose ingredients of offence as alleged. Not only that, but even during the course of investigation, many other relevant factors may emerge which may reveal or indicate breach of alleged offences and further materials may come out attracting even ingredients of Sections 406 and 471 of the Indian Penal Code. Learned counsel have relied upon the documents pertaining to registration of trade mark and submitted that use of 'CAPSOLA' by the petitioner is in clear breach of the provisions of various Sections of Trademarks Act. Learned counsel for the respondent-complainant invited attention of this Court to page 54 of Special Criminal Application No.343 of 2010 about Certificate of Registration of Trade Mark under Section 23 of the Trade and Merchandise Marks Act, 1958 which is in the name of Ranbaxy Laboratories Limited, which reveals that such registration is granted in respect of clause 05 category and for material for bandaging and it has nothing to do with Animal Feed Supplement. According to the learned counsel, the complainant-company are assignees and have received their assignment from one M/s. Pearl Drugs Private Limited having registration Certificates bearing Nos.1124385 and 1124386. Learned counsel further submitted that the record indicates that the petitioner or their predecessor have no right, title or ownership over the product. Learned counsel for the respondent further submitted that in view of various decisions of the Apex Court, power under Section 482 of the Code of Criminal Procedure, 1973, is to be exercised sparingly and when the first information report discloses ingredients of offences, at this stage, the Court will not enter into the arena of appreciation of evidence. In view of Section 115, sub-section (3) of the Trademarks Act, offences are cognizable. Not only that, but, according to learned counsel for the respondent, as required under Section 110(1) of the Trademarks Act, offence will have to be tried and whatever defence that can be raised or advanced by the petitioner has to be appreciated at the stage of trial and not in a petition under Article 226 of the Constitution of India read with Section 482 of the Code.
5 In rejoinder, learned counsel for the petitioner reiterated that the civil proceeding is pending before the High Court of Delhi wherein the High Court of Delhi, by order dated 13.1.2010. in Civil Suit (OS) No.40 of 2010, granted interim injunction in favour of the petitioner restraining the respondents from usage of trademark Capsola in relation to animal feed supplement till the next date of hearing. Other contentions are raised on the basis of various provisions of the Trademarks Act and right to use, prior usage, saving clause Section 34 of the vested right, section 40 of Trademarks Act and it is submitted that on the basis of relevant clauses of the agreements, mainly the disputed clause 7, civil cases are yet to be decided and, therefore, the case deserves consideration.
6 If the first information report is perused, it is averred that the complainant is authorized signatory of the company, who is a Director in Pearl's Drugs Private Limited Company and Marketing Executive in Parth Parentel Private Limited Company [PPPL]. PPPL is manufacturing animal drugs and animal food and is holding registered trade mark in the name of Capsola and under the trademark, the company was doing the work of providing animal feed supplments to Ranbaxy Company. For this purpose, in order to use the trademark of Capsola by the Company, a contract was entered into between PPPL and Ranbaxy. It is not in dispute that the contract was entered into between the parties for the period from 2004 to 2006 and, thereafter, in the year 2006 an agreement was entered into to renew the contract for a further period of three years. However, there is a dispute with regard clause No.7 of the agreement,where allegation has been levelled about addition of words by handwriting 'except capsola group of products' after typed paragraph of clause No.7. On 9th December 2009 the complainant made an application to the Assistant Registrar of Trademarks to transfer the registered trademark, namely, clause 31 and clause 55 in the name of PPPL and the work is under progress. The accused-company, without consent and in spite of the contract having not been renewed on the formula of the original produce, manufactured and sold all the products and used the trademark by making change in the above formula and labeling the same in spite of patent of container. The above acts of the accused, according to the complainant, amount to 'breach of trust' and addition in clause 7 of the agreement amounts to forged document attracting Sections 406 and 471 of the Indian Penal Code and violate the provisions of Copyright and Trademarks Act. Pursuant to that, a panchanama was made which reveals seizure of certain articles, namely, 391 cartons valuing at Rs.3,89,320/- and certain invoices.
7Having heard the learned counsel for the parties, considering the relevant facts and circumstances of the case and on perusal of the record and provisions of the Trademarks Act and Sections 406 and 471 of the Indian Penal Code and considering the allegation and averments made in the first information report, according to this Court, prima-facie, nature of averments made in the first information report is based on the agreements entered into between the parties and such contract continued till 2009 which was not renewed thereafter. A dispute with regard to ownership, title and usage of the trademark is pending before two different civil courts, namely, a suit filed by the petitioner in the Delhi High Court where injunction is granted in favour of the petitioner and also a suit filed by the complainant in the Civil Court at Kalol, in Gujarat. The concerned Civil Courts may have to go into validity and legality of correctness of ownership, title, usage, etc. of the products in the civil proceedings and the hand-writing addition in clause No.7, which is not admitted by the petitioner, is also the subject matter of interpretation by the Civil Courts in the pending civil suits pertaining to rival claims made by the parties therein. Further, after filing of the first information report and civil suits, a meeting for settlement was held on 17th January 2010 between the petitioner and the complainant at New Delhi and the minutes of the meeting was produced on record. When the title, ownership, usage, etc are disputed in the pending litigation before the civil courts, breach or violation of offences as alleged under the Trademarks Act, does not arise. On a bare perusal of the first information report, there is no specific averment in the first information report with regard to 'breach of trust' or a document forged attracting Sections 406 and 471 of the Indian Penal Code. Applying the same reasoning, at this stage, investigation cannot be permitted for breach of provision of the Trademarks Act also.
8 Rule returnable on 23.4.2010. Interim relief in terms of paragraph 39(iii) in Special Criminal Application No.343 of 2010 and paragraph 38(iii) in Special Criminal Application No.344 of 2010.
9. The above observations are prima-facie in nature and shall have no bearing on any proceedings pending before any Court between the parties.
[Anant S. Dave, J.] [swamy] Top