Chattisgarh High Court
Steel Authority Of India Limited vs Lalit Agrawal on 22 October, 2019
Author: Rajendra Chandra Singh Samant
Bench: Rajendra Chandra Singh Samant
Page No.1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for orders on :26/08/2019
Order passed on : 22/10/2019
WPCR No. 484 of 2019
Steel Authority of India Limited Central Marketing Organization
Through Assistant General Manager (Marketing) Regional Office "The
Metropolitan", 8th Floor, Bandra-Kurla Complex, Bandra (E), Mumbai,
Maharashtra. Pin- 490 051., District : Mumbai, Maharashtra
---- Petitioner
Versus
1. Lalit Agrawal S/o Late Shyam Sunder Agrawal, Aged About 60 Years,
R/o Udaya Society, Tatibandh, Raipur, Chhattisgarh. Pin- 492 001.,
District : Raipur, Chhattisgarh
2. Pankaj Agrawal S/o Lalit Agrawal, Aged About 33 Years, R/o Udaya
Society, Tatibandh, Raipur, Chhattisgarh. Pin- 492 001., District :
Raipur, Chhattisgarh
3. State of Chhattisgarh Thrugh Police Station- Gudhiyari, Chhattisgarh.-
492 001., District : Gariyabandh, Chhattisgarh
-----Respondents
For Petitioner : Dr. Saurabh Kumar Pandey, Advocate
For Respondents 1 and 2/caveators : Mr. Prafull N. Bharat and Mr. Navin
Shukla, Advocates
For Respondent/State : Ms. Akansha Jain, Deputy Govt. Advocate.
Hon'ble Shri Justice Rajendra Chandra Singh Samant
CAV Order
22/10/2019
1. Instant petition has been brought under Article 226/227 of the
Constitution of India praying for issuance of appropriate
writ(s)/direction(s)/order(s) etc.
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2. It is submitted that the charge sheet was filed against respondent No.1
and 2 before the trial Court for prosecution in offences under Section
420, 465, 468, 473, 475, 485, 486 of the IPC and for other offences
under the Trade Marks Act, 1999. The trial Court has framed the
charges on 29-04-2014 against the Respondent No.1 and 2 for trial in
offences under Section 103 and 108 of the Trade Marks Act and under
Section 420 and 485 of the IPC. The order of framing charges was
challenged before the Court of 9 th Additional Sessions Judge Raipur in
Criminal Revision No. 223/2014 which was decided on 07-08-2015 in
which the charges under Section 420, 485 of the IPC were set aside.
This order of the revisional Court is illegal, arbitrary and erroneous. In
fact, it were only the charge under Sections 420 and 485 of the IPC
were sustainable, whereas, the charges under Section 103 and 104 of
the Trade Marks Act were not sustainable, because there had been no
compliance of the Section 115 of the Trade Marks Act by the
respondent concerned. It is submitted that subsequent to this order of
revisional Court the trial against respondent No.1 and 2 cannot be said
to be proper trial because the respondents 1 and 2 have been
exonerated from the offences which they have committed. It is
submitted that this illegality is going to cause huge damage to the
petitioner as there are cases pending before the Bombay High Court
against the private respondents praying for claim for damages against
the illegal act of the private respondents.
3. On behalf of respondents 1 and 2 it is submitted that the petitioner had
remedy available under Section 397 of the Cr.P.C. which he has not
availed. On this point reliance has been placed on the judgments of
Hon'ble the Supreme Court in the matter of Commissioner of Income
Tax and others Vs. Chhabil Dass Agrawal, (2014) 1 SCC 603 and
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Nivedita Sharma Vs. Cellular Operators Association of India and
others, (2011) 14 SCC 337. The petitioner has also suppressed that
the remedy was available to him. Referring to the order passed by the
trial Court, revisional Court and also the complaint filed by the
Enforcement Directorate against the private respondents in the year
2014, it is submitted that the cause of action was available to the
petitioner for filing a writ petition in the year 2014-2015, besides this,
this writ petition has been brought after inordinate delay of almost five
years. Reliance has been placed on the judgment of Hon'ble the
Supreme Court in the matter of U.P. Jal Nigam and another Vs.
Jaswant Singh and another, (2006) 11 SCC 464 and State of
Haryana Vs. Ram Mehar and others, (2016) 8 SCC 762. The delay
and latches in seeking remedy in time cannot be excused. It is
submitted that the private respondents have also faced trial for about
five years and in case this petition is allowed, then there shall be a
denovo trial. The trial against the private respondents is almost going
to complete, therefore, the petition be dismissed at the motion stage.
4. Learned counsel for the State/respondent No.3 agrees with argument
advanced on behalf of the Respondents 1 and 2 prays that the petition
may be dismissed.
5. In reply, learned counsel for the petitioner submits that the prosecution
against the private respondents is a State case, therefore, the position
of the petitioner is only that of a witness, who could not have known
about the proceedings of the trial. In the petition under Article 226 of
the Constitution of India the Court has power to exercise Constitutional
jurisdiction and pass the order on the question of legality of the trial.
The State has not been vigilant to apprise the Court regarding the
Page No.4
illegality and irregularity committed in the trial and appeal. Therefore,
the petition is maintainable.
6. Heard learned counsel for the parties and perused the documents.
7. The submission and prayer made by the petitioner are mainly directed
against the order of the revisional Court for setting aside the charges
against the private respondents under Section 420 and 485 of the IPC.
There is no observation or finding of the revisional Court in order dated
07-08-2015 that offences under Section 420 and 485 are not made
out. The only reason given is this, that under Section 5 of the IPC it is
provided that where the offence is punishable under any Special Act in
that case the offence under the provisions of the IPC shall not be
subject of the charge and this is the only ground and on this basis the
charge under Section 420 and 485 of the IPC was set aside.
8. Section 5 of the IPC reads as under:-
"5. Certain laws not to be affected by this Act.--Nothing in this Act
shall affect the provisions of any Act for punishing mutiny and
desertion of officers, soldiers, sailors or airmen in the service of the
Government of India or the provisions of any special or local law."
9. On reading of the provisions under Section 5 of the IPC it is found that
the provisions under the IPC shall not effect the provision of any
Special Law or Local Law. This provision does not mention that the
provision under any Special Law or Local Law shall have a overriding
effect.
10. It was held by Madras High Court In re, Satya Narayan Murthy AIR,
1953 Mad. 137 (E) it was held in para 4 and 5 that:-
(4) A "Special law" is a law applicable to a particular subject; see S.
Page No.5
41 I.P.C. Under S. 5 I.P.C., no special law is repealed, varied,
suspended or affected by the enactment of the Indian Penal Code.
Although an offence is expressly made punishable by a special or
local law, it will be also punishable under the Penal Code, if the
facts come within the definition of, the Penal Code: --- 'The Queen
v. Ramchandrappa' 6 Mad 249. The general principle of Law is that
the Penal Code would apply if the acts fall within the Indian Penal
Code though there may be specific offences and penalties under
the Special Act. Accordingly, the High Court of Madras held that a
prisoner might be punished under Section 465, I.P.C. for making
false declaration under S. 5 of Act X of 1841 (Ship Registrar),
though a specified penalty is provided by Section 23 of that Act.
(see rulings of 1865 on Sec. 5). There has been similar decisions
in regard to other special Acts. It is enough to cite a few cases, In
regard to offence under Indian Penal Code and Provincial
Insolvency Act, see-- 'Queen v. Ramachandrappa', 6 Mad 249; for
offences under Local Boards Act and Indian Penal Code,
see--'Molaiappa Goundan v. Emperor', 52 Mad 79; for conviction
under Indian Penal Code though offence falls within purview of
Motor Vehicle Act also, see -- 'Jiwa Ram v. Emperor', AIR 1932 All
69; for offences under Salt Act and Indian Penal Code, see--
'Emperor v. Joti Prasad', AIR 1932 All 18; for Railways Act and
Indian Penal Code, see-- 'Kuloda Prosad Mazumdar v. Emperor',
11 Cal W N 100 distinguished--'Chandi Pershad v. Abdur Rahman',
22 Cal 131, wherein it was held that a special penal provision as in
the Railways Act would not always exclude the operation of the
Penal Code.
The most familiar example however is of the identical
Page No.6
provisions contained in the Indian Penal Code regarding rash and
negligent driving and under the Motor Vehicles Act. Thus where the
accused while driving a motor car on the wrong side of the road &
at a blind corner between two roads of considerable traffic came
into collision with a motor bicycle and caused damage to the side
car of the bicycle it was held that the accused was guilty of an
offence under S. 279 I.P.C., and sentence of three months'
rigorous imprisonment served on the accused by the lower Court
was upheld. It was argued on behalf of the accused in this case
that the more appropriate section would be S. 59 of the Motor
Vehicles Act, but the Judges remarked that the offence committed
by the accused was serious and that the mere fact that the Motor
Vehicles Act also contained a provision for dealing with offences of
this nature would not exclude the operation of the Indian Penal
Code. Therefore, it is idle to contend that a special law repeals the
provisions of the Indian Penal Code because both of them deal
with offences arising under both the Acts.
(5) There are however two important restrictions. No prosecution
under the Special law is admissible if it appears upon the whole
frame of the Special Act that it was intended to be complete in itself
and to be enforced by the penalties created by it. See --- 'Chandi
Pershad v. Abdur Rahman', 22 Cal 131 at p. 138. The court of
session has jurisdiction to hear appeals on sentences passed by a
Magistrate under such special and local laws (Rulings of Madras
High Court, 1865, on S. 409 Crl. P.C. Act XXV of 1861); and
conversely, it is no reason for quashing a conviction under a
special law, for instance, under S. 29 of Act V of 1861 (General
police), that the facts would constitute an offence punishable under
Page No.7
the Penal Code: --- 'Kasimuddin in re,' 4 Myn Crl.17. If the
magistrate proceeds under the Penal Code it is better to drop the
charge under the local Act. But, secondly, a person cannot be
punished under both the Penal Code and the Special law for the
same offence. If an offence under a special law is likewise one
under the Penal Code it is punishable either under the special law
or under the Code as laid down in --- Queen v. Ramchandrappa' 6
Mad 249 and --- 'Kasimuddin in re', 4 Myn. Crl. 17, but of course
not under both as laid down in --- 'Rex v. Husson Ali', 5 N. W. P. 49,
See also S. 26 of the General Clauses Act X of 1897, viz., where
an act or omission constitutes an offence under two or more
enactments the offender is liable to be prosecuted and punished
under either or any of those enactments but shall not be liable to
be punished twice for the same act or omission."
11. In the matter of Gyanchand Madhok Vs. State, 1954 LawSuit(HP) 24
the High Court of Himachal Pradesh has held in para 5 and 6 that :-
[5]. The learned Government Advocate pointed out that, since the
Prevention of Corruption Act came into force in Himachal Pradesh only
ON 29-06-1949, its provisions could not be applied to the trial of the
cases relating to Kunwar Chand, Kharku and the tin cases, because in
those three cases, the offence was committed before the Act came into
force in Himachal Pradesh. As regards the battery case and the case
relating to Pissa Lambardar, it is, no doubt, true that the alleged
offences were committed after the Prevention of Corruption Act came
into force in Himachal Pradesh. At the same time, it is urged that the
provisions of Section 409, I.P.C., have not been repealed by Section 5,
Prevention of Corruption Act. The learned Government Advocate cited,
Page No.8
'inter alia':--
(a) ' Bhup Narain v. State' AIR 1952 All 35 (D), where a
Division Bench of that High Court observed as follows:
"Learned counsel for the applicant has urged that the applicant
is a public servant. The offences he is alleged to have
committed can all be grouped under the heading 'criminal
misconduct' and the 'applicant could, therefore, be convicted
under Section 5(2), Prevention of Corruption Act, which is as
follows:
'Any public servant who commits criminal misconduct in the
discharge of his duty shall be punishable with imprisonment for
a term which may extend to seven years, or with fine, or both.'
Section 6 of the Act provides that no Court shall take cognizance
of an offence punishable under Section 161 or Section 165,
Penal Code, or under Sub-section (2) of Section 5 of this Act,
alleged to have been committed by a public servant except with
the previous sanction of persons mentioned in the section. In
effect the argument of learned counsel is that where a public
servant is guilty of an offence which can amount to 'criminal mis
conduct' as defined in Section 5(1), the prosecution must be
deemed to be under Section 5(2), Prevention of Corruption Act,
whether the accused is charged under that section or under
appropriate sections of the Penal Code, and the provisions of
the Prevention of Corruption Act should, therefore, apply.
The Act was passed in 1947 with the avowed object of making
more effective provisions for the prevention of bribery and
corruption by a public servant. Section 3 and 6 of the Act make
Page No.9
certain amendments in the procedure, while Section 4 and 7
make certain amendments to the rules prescribed in the
Evidence Act. Section 3 and 4 apply to cases under Section 161
and 165, Penal Code, only. The definition of 'criminal
misconduct' in Section 5 and Sub-Section (b) and (c) can
include cases which would not fall under any provision of the
Penal Code. Where, therefore, a new offence has been created
under this Act there can be no doubt that the accused must be
proceeded against in accordance with the provisions of this Act.
Where, however, the offence is one which was punishable under
the Penal Code and is now made punishable under this Act also,
the question arises whether it is open to the prosecution to
proceed against the accused under the general law, that is
under the Penal Code, or under the special provisions contained
in this Act. Sub-section (2) of Section 5 provides for seven years
rigorous imprisonment for criminal misconduct by a public
servant, or fine, or both, while some of the sections of the Penal
Code, which deal with offences which might come under the
definition of 'criminal misconduct', provide for heavier or lighter
punishment.
The general rule 'generalia specialibus non derogant' on which
reliance has been placed has not been held to be of universal
application by Courts in India.
Section 26, General Clauses Act (10 of 1897) is as follows:-
'Where an act or omission constitutes an offence under two or
more enactments then the offender shall be liable to be
prosecuted and punished under either or any of those
Page No.10
enactments, but shall not be liable to be punished twice for the
same offence.'
The applicant is being prosecuted under various sections of the
Penal Code, some of which provide for a sentence of more than
seven years, while the others provide for much lesser sentence.
In the charge-sheet no mention has been made of the
Prevention of Corruption Act and the trial, so far as we can see,
has proceeded in accordance with the provisions of the Criminal
P.C. and the charge-sheet mentions only sections of the Penal
Code. At the conclusion of the trial, the accused must be
convicted, if his guilt is proved, in accordance with the provisions
of the Penal Code and it cannot be said that the Court convicting
the accused can apply Sub-section (2) of Section 5, Prevention
of Corruption Act, and sentence him to seven years' rigorous
imprisonment where the section under which he is charged
provides for a lesser sentence. The applicant not having been
charged under sub-s. (2) of Section 5, Sections 4 and 7 of the
Act cannot be made applicable to him."
(b) 'In re, Satyanarayanamurthy', AIR 1953 Mad 137 (E). There,
a single Judge of that High Court, dissenting from - 'AIR 1952
Punj 89 (A)', observed:
"The substantial point of law taken before me is the contention
based upon the decision of the Punjab High Court in --'AIR 1952
Punj 89 (A)', wherein it was held that Section 5(1)(c) of Act 2 of
1947 repealed 'pro tanto' Section 409, I.P.C. but with greatest
respect for the decision, I find no reason whatsoever for holding
that Section 5(1) (c), Prevention of Corruption Act, repeals
Page No.11
Section 409, I.P.C.
.................
(c) 'Madho Prasad v. State' AIR 1953 Madh-B 139 (L). There, Dixit J. following-- 'AIR 1953 Mad 137 (E) and dissenting from - AIR 1952 Punj 89 (A)', held as follows:
xxxxxx xxxxxxx "Where a new offence is created under any enactment, the accused must be dealt with in accordance with the provisions of that enactment; where on the other hand, a statute makes an act already punishable under some former law, punishable and there is nothing in the later enactment to exclude the operation of the former one, then the accused person can be pro-ceeded against under either of the enactment?."
(d) 'Mahomed Ali v. State', AIR 1953 Cal 681 (M), where a Division Bench of that High Court held that:
"In the face of the amendment made in Section 5, Prevention of Corruption Act, 1947, by the substitution of new Sub-section (4) in place of old one by the amending Act, 59 of 1952, it cannot be argued that the operation of that Act, in the case of a public servant, excludes the operation of Section 409, Penal Code. The amendment makes it clear that the prosecution can elect to charge a public servant either under Section 409, Penal Code, or under Section 5(1)(c), Prevention of Corruption Act, 1947. Hence, the trial of a public servant before a special Judge under Section 409, Penal Code is valid. AIR 1952 Punj 89 (A)', superseded by amending Act 59 of 1952."Page No.12
(e) 'Gopal Das v. State', AIR 1954 All 80 (N), where a Division Bench of that High Court observed that:
"There is no discrimination against an accused who is proceeded against for an offence under Section 409, I.P.C., and not for an offence under Section 5(1)(c), Prevention of Corruption Act. The provisions of Section 409, I.P.C., therefore, do not go against Article 14 of the Constitution and are not void in view of Article 13(1) of the Constitution."
(f) 'Jayarama Iyer v. State of Hyderabad', AIR 1954 Hyd 56 (O), where a Division Bench of that High Court was of the opinion that: "Where an act or omission constitutes an offence both under the Penal Code and under the Prevention of Corruption Act, it is not obligatory to charge the accused with an offence under the latter Act, and unless an accused is so charged under the Prevention of Corruption Act, the procedure laid down under that Act, as well as under Sections 6 and 7, Criminal Law Amendment Act, 1952, cannot apply.
Section 5(1)(c), Prevention of Corruption Act, as it stood prior to the Prevention of Corruption (Second Amendment) Act of 1952, did not 'pro tanto' repeal Section 409, Penal Code, so far as it relates to offences by public servants. A public servant can, therefore, be prosecuted under Section 409, Penal Code, notwithstanding Section 5(2) of that Act. 'AIR 1953 Madh-B 139 (L)',---'AIR 1953 Mad 137 (E)', followed;---'AIR 1952 Punj 89 (A)', dissented form."
(g) 'In re, Govindaswami', AIR 1954 Mad 401 (P). There, a single Judge of that High Court, following--'AIR 1953 Mad 137 Page No.13 (E)', held that:
"Where a complaint sets forth certain facts disclosing a minor offence and also a graver offence, the prosecution should ordinarily be for the graver offence. Thus, the offence under Section 409, Penal Code, being graver than the offence under Section 5(1) (c), Prevention of Corruption Act, prosecution should be for the graver offence under Section 409, Penal Code, even though the facts disclosed fall within Section 5(1)(c), Prevention of Corruption Act. 'Dholiah v. Sub-Inspector of Police, Wellington Station', AIR 1931 Mad 702 (Q), followed."
[6]. In consonance with the view of the Madras, Madhya Bharat, Hyderabad, Allahabad and Calcutta High Courts, I would hold that the provisions of Section 409, I.P.C., have not been repealed by Section 5, Prevention of Corruption Act. Therefore, quite irrespective of whether the offences alleged to have been committed by the petitioner, pertain to a period before or after the Prevention of Corruption Act came into force, it must be held that the trial Magistrate has jurisdiction to proceed with the trials."
12. It was held in the matter of Emperor vs Joti Prasad Gupta, Allahabad 18, 136 Ind Cas 91 that where a special enactment dealt with offence of similar to offence dealt with by a general enactment do not follow the provisions of general enactment, if it had been repealed to that extent.
13. Therefore, the general rule appears to be this that if the provision under the special enactment and the general enactment are identical, in that case the offence shall be tried under the provisions of the special enactment
14. The offences in question in this case are as under: Page No.14
Sections 103 and 104 of the Trade Marks Act, 1999:-
"103. Penalty for applying false trade marks, trade descriptions, etc.--
Any person who--
(a) falsifies any trade mark; or
(b) falsely applies to goods or services any trade mark; or
(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying, a trade mark; or
(d) applies any false trade description to goods or services; or
(e) applies to any goods to which an indication of the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied under section 139, a false indication of such country, place, name or address; or
(f) tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied under section 139; or
(g) causes any of the things above-mentioned in this section to be done, shall, unless he proves that he acted, without intent to defraud, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.
104. Penalty for selling goods or providing services to which false trade mark or false trade description is applied.--Any person who sells, lets for hire or exposes for sale, or hires or has in his possession for sale, goods or things, or provides or hires services, to which any false trade mark or false trade description is applied or which, being required under section 139 to have applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer, or person for whom the goods are manufactured or services provided, as the case may be, are without the indications so required, shall, unless he proves,--
(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods or services; or
(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things or services; or
(c) that otherwise he had acted innocently, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees." Section 420 and 485 of the IPC are reproduced as under:-
"420. Cheating and dishonestly inducing delivery of property.--Whoever Page No.15 cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
485. Making or possession of any instrument for counterfeiting a property mark.--Whoever makes or has in his possession any die, plate or other instrument for the purpose of counterfeiting a property mark, or has in his possession a property mark for the purpose of denoting that any goods belong to a person to whom they do not belong, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both."
15. The offence under Section 485 of the IPC falls under Chapter 18 of the IPC regarding offence relating to documents and to property marks which starts with Section 463 which defines forgery. Section 463 reads as under:-
"463. Forgery.-- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
16. Section 463 and Section 485 have to be read together to make out sense, that why a person should be accused, charged or held guilty for such an offence that is under Section 485 of the IPC. It is included in Section 485 of the IPC that the purpose of possession of any instrument for counterfeit a property mark should be for denoting that any goods belongs to a person to him that not belonged., which is intent of committing such offence to defraud some person, therefore, provision under Section 485 of the IPC punishes for 'mens rea'.
17. The word 'mens rea' had nowhere been mentioned in the IPC, while defining the offences words have been used in respective provisions to indicate the criminal intention required for commission of such offence, such words, fraudulently, defarudely, dishonestly, intentionally, Page No.16 voluntarily etc.
18. In Kartar Singh, Kripa Shankar Rai V. State of Punjab, (1994) 3 SCC 569 five judges of Hon'ble the Supreme Court have held in para 115 that :
"115. In a criminal action, the general conditions of penal liabilities are indicated in old maxim "actus non facit reum, nisi mens sit rea" i.e. the act alone does not amount to guilt, it must be accompanied by a guilty mind. But there are exceptions to this rule and the reasons for this is that the legislature, under certain situations and circumstances, in its wisdom may think it so important, in order to prevent a particular act from being committed, to forbid or rule out the element of mens rea as a constituent part of a crime or of adequate proof of intention or actual knowledge. However, unless a statute either expressly or by necessary implication rules out 'mens rea' in cases of this kind, the element of 'mens rea' must be read into the provisions of the statute. The question is not what the word means but whether there are sufficient grounds for inferring that the Parliament intended to exclude the general rule that mens rea is an essential for bringing any person under the definition of 'abet'."
19. In view of the above principles that are in existence, it can be held that the offence under Section 485 of the IPC is an offence where a criminal intention or mens rea of a person is a key ingredient, on the basis of which he may be punished.
20. On going through the provisions under the Trade Marks Act, 1999 falsifying and falsely applying trade mark has been defined under Section 102 of the Trade Mark Act, 1999 which reads as under:- Page No.17
"102. Falsifying and falsely applying trade marks.--(1) A person shall be deemed to falsify a trade mark who, either,--
(a) without the assent of the proprietor of the trade mark makes that trade mark or a deceptively similar mark; or
(b) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise.
(2) A person shall be deemed to falsely apply to goods or services a trade mark who, without the assent of the proprietor of the trade mark,
--
(a) applies such trade mark or a deceptively similar mark to goods or services or any package containing goods;
(b) uses any package bearing a mark which is identical with or deceptively similar to the trade mark of such proprietor, for the purpose of packing, filling or wrapping therein any goods other than the genuine goods of the proprietor of the trade mark. (3) Any trade mark falsified as mentioned in sub-section (1) or falsely applied as mentioned in sub-section (2), is in this Act referred to as a false trade mark.
(4) In any prosecution for falsifying a trade mark or falsely applying a trade mark to goods or services, the burden of proving the assent of the proprietor shall lie on the accused."
21. The key ingredient of this provision is falsifying the trade mark without assent of the proprietor of the trade mark by making such trade mark or deceptively similar mark. It is not a case of deceptively similar mark, it is a case where the private respondents have falsified the trade mark without assent of the proprietor. Therefore, the provisions under Section 103 and 104 of the Trade Marks Act, 1999 do not have ingredients of guilty mind, i.e., mens rea and fraud. Hence, the ingredients as it is present in Section 485 of the IPC that the purpose of falsifying or counterfeiting the trade mark has to be with intention to cause damage or injury to the public or to any person, is totally missing in the provision of Section 103 and 104 of the trade mark Act. Therefore, for these reasons, it cannot be said that provisions under Section 103 and 104 of the trade Marks Act and Section 485 of the IPC are identical provisions. The principles as laid down in the case laws referred hereinabove are these, that a person cannot be punished under both the Penal Code and the special law for the same offence, if the offence in any special law and the IPC are identical. This is what Page No.18 the definition under Section 26 of the General Clauses Act, 1897 that where an act or omission constitutes an offence under two or more known enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactment, but shall not be liable to be punished twice for the same offence. In re Govindaswami (supra) it has been held that where the offence under Penal Code is graver than the offence under any special act, in that case, prosecution shall be for the graver offence under the Penal Code.
22. On scrutiny of the penal provision under the Trade Marks Act, 1999 and the offence that were charged by the trial Court against the private respondents under Penal Code, do not pass the test of general rule that the offence under the Trade Marks Act, 1999 and Penal Code are identical. The possession of instruments for counterfeiting a property mark or trade mark is coupled with intention to defraud under Section 485 of the IPC and followed by intention to cheat that is the offence under Section 420 of the IPC. The offence under Section 420 of the IPC is a graver offence as it is punishable to the extent of 7 years along with fine sentence which again find support from the principle laid down In re Govindaswami (supra).
23. After over all discussion that has been made hereinabove, it is held that the offences charged against the private respondents under the provisions of Trade Marks Act, 1999 are not identical with the offence charged against them under the provisions of the IPC. Further, the charge against the private respondents under the IPC have more gravity compared to the offences under the Trade Marks Act, 1999. Hence, for these reasons it is held that the order passed by the 9 th Additional Sessions Judge in Revision No. 223/2014 is erroneous and Page No.19 against the provisions of Law which cannot be sustained, hence, this order is quashed. The trial against the private respondents shall continue for charges under Section 420 and 485 of the IPC before the trial Court in accordance with law.
24. The objection raised by the respondents' counsel are not entertainable for the reason that this petition was brought after exercise of revisional jurisdiction against the order of the trial Court which was though exercised by the respondents in which this petitioner was not a party, however, on such condition it was not possible for the petitioner to file a repeat revision petition, hence, the petition under Article 226 of the Constitution of India is maintainable. As regards the objection regarding delay in seeking remedy that has been well explained by the petitioner side that it was the State case and the petitioner itself was not prosecuting the same, therefore, the petitioner was not in a position to learn about the development of trial and consequently it is a case in which a serious illegality was committed by the revisional Court by discharging the private respondents from the offences under Section 420 and 485 of the IPC. Therefore, the delay if any in this case is excusable.
25. The petition stands disposed off.
Sd/- Sd/-
(Rajendra Chandra Singh Samant)
Judge
Aadil