Judgment :- JANARTHANAM, J. Petitions praying that in the circumstances stated therein the High Court will be pleased to call for the records and quash the proceedings in C. C. No. 2946 of 1992; 2947/1992 and 2948 of 1992 respectively on the file of the Court of the XIV Metropolitan Magistrate, Egmore, Madras - 600 008. Order: These petitions coming on for hearing on 30.7.92, 10.8.92, 18.8.92, 20.8.92, 25.8.92 and 11.9.92 upon perusing the petitions and upon hearing the arguments of Mr. R. Thiagarajan, Senior Counsel for M/s. M. Muthappan and A.K. Jayaraj, Advocates for the Petitioner in all the petitions and of Mr. U.N.R. Rao, Senior Counsel for Mr. K. Mahesh, Advocate for the Respondent in each of the petitions and having stood over for consideration till this day, the Court made the following order: Messrs Power Control and Appliances Company having its base and location at Ambattur, Madras, is the sole proprietrix concern of one Mrs. Madhuri Mathur. The said company, it is said, had been manufacturing and marketing power operated kitchen mixies since 1963 under the name and style of "SUMEET" Brand, a registered trade mark since 1970. The Mixies are packed in card board boxes containing a pictorial display on the four sides of the card board box and also on the top with attractive and artistic get up. Along with the mixies, certain operating instructions and a guarantee card are also given. The aforesaid company is the owner of the copyright with respect to the pictorial display on the four sides of the card board boxes, the booklet containing instructions and also the guarantee card, which were devised, conceived and made by Mrs. Madhuri Mathur with the help of artists, photographers, printers and executives employed for valuable consideration, and she is the first owner of the said copyright as per section 17 of the Copyright Act, 1967. The registered Trade Mark in the manner in which it is written it is said, has been subsequently assigned on 1.1.1981 by Mrs. Madhuri Mathur in favour of M/s. Sumeet Research and Holdings Limited, 601-E, Poonam Chambers, Shivsagar Estate, Dr. Annie Besant Road, Worli, Bombay-400018. 2. Power Control and Appliance Company alongwith other sister concerns filed three suits, viz. The registered Trade Mark in the manner in which it is written it is said, has been subsequently assigned on 1.1.1981 by Mrs. Madhuri Mathur in favour of M/s. Sumeet Research and Holdings Limited, 601-E, Poonam Chambers, Shivsagar Estate, Dr. Annie Besant Road, Worli, Bombay-400018. 2. Power Control and Appliance Company alongwith other sister concerns filed three suits, viz. C. C. Nos.343, 431 and 432 of 1992 in April, 1992 against Sumeet Machines Private Limited, and Sekar and Sagar (A partnership firm of three partners - Sekar, Shantilal and Bepatlal) for certain reliefs relatable to the copyright, trade mark and design, under the Copyright Act, 1957, the Trade and Merchandise Marks Act, 1958 and the Design Act, 1911, and also obtained interim injunction in application Nos. 226, 227, 271 and 272 of 1992 on 25.3.92 and 9.4.92. 3. In the first week of April, 1992, Sumeet Research and Holding Limited filed C. C. Nos. 2946 and 2947 of 1992 and Mrs. Madhuri Mathur filed C. C. No. 2948 of 1992 against the following seven persons : 1) Sumeet Machines Private Limited, Nasik - 402 001 2) Mrs. Pramila Thukral, General Manager of No.1 Company 3) Arun Mathanna, Regional Manager - South of No.1 Company 4) Sekar & Sagar, Partnership firm Madras - 600 014 5) Sekar, Partner of No.4 firm 6) Shanthilal, Partner of No.4 firm, and 7) Bapatlal, Partner of No.4 firm arraigning them as Accused Nos. 1 to 7 for infringement of sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 and section 63 of the Copyright Act, 1957. 4. Application Nos. 226, 227, 271 and 172 of 1992 came up for further orders and on 29.4.92 the interim orders granted earlier had been vacated. 5. The persons arraigned as Accused 1 to 4 in the aforesaid three complaints have reported to the present actins, invoking the inherent jurisdiction of this Court under section 482 Cr. P.C., to quash the criminal proceedings against them. On 26.5.92 interim stay was granted in Crl. M.P. Nos. 3362 to 3364 of 1992. The Respondents, on receipt of notice entered appearance through a counsel of their choice and filed Crl. M.P. Nos. 3959 to 3961 of 1992 to vacate the interim stay granted. By consent, the main petitions themselves were taken up for final disposal and both sides were herd. 6. M.P. Nos. 3362 to 3364 of 1992. The Respondents, on receipt of notice entered appearance through a counsel of their choice and filed Crl. M.P. Nos. 3959 to 3961 of 1992 to vacate the interim stay granted. By consent, the main petitions themselves were taken up for final disposal and both sides were herd. 6. From the submissions emerging on either side the following points arise for considerations. i) In a prosecution which gives rise to cause of action for the institution of proceedings civil or criminal whether it is legitimately permissible for both action to be commenced and continued before both the Civil and Criminal forms simultaneously? ii) Whether, on account of the absence of express and explicit averments in the complaint as to any of the persons arraigned as accused to be in charge of and responsible to the conduct of the business of the company at the time of the commission of the offence, the criminal proceeding initiated against them are liable to be quashed? 7. Mr. R. Thiagarajan, learned Senior counsel appearing for the Petitioners and Mr. U.N.R. Rao, learned Senior counsel appearing for the Respondents, projected lively submissions revolving on the questions posed from all facts and also relied on various precedents and the same may now be elaborately considered. 8. The arena of discussion may now be entered into on the question as to whether it is legitimately permissible and/or desirable to resort to both actions, civil and criminal in the case of the transactions giving rise to cause of action for both proceedings. Rather, it is inconceivable of myriads of situation in actual life and that perhaps is or may be the reason to prescribe an inflexible rule without any variation applicable to all eventualities and situations. The paradigms of this aspect of law are conceptual. The principles settled are per se and the adjudication of such disputes are delicate matters requiring intimate knowledge of factual or actual life situation and the attendant consequences to be flowing therefrom. A dispute as to possession of property between rival claimants may give rise to causes of action for institution of proceedings before forums having Civil and/or Criminal jurisdiction. There is of course no inhibition or interdiction in law for resortment to both actions simultaneously. A dispute as to possession of property between rival claimants may give rise to causes of action for institution of proceedings before forums having Civil and/or Criminal jurisdiction. There is of course no inhibition or interdiction in law for resortment to both actions simultaneously. But pragmatisn and practicalism in the application of law did permit in an impelling fashion for adjudication of such a dispute first in point of time by the civil forum which alone can be expected to go into the investigation of the implications and niceties of such a right. Taking into account the principles of law bearing upon its determination and adjudication, and to allow the criminal forum to embark upon such an investigation is not at all desirable obviously for the reason of the decisions of civil forums on such questions being always binding on the criminal forums. Resortment to initiation of proceedings under section 145 of Code of Criminal Procedure in addition to proceedings before competent civil forums is a glaring instance and in such a situation what is the best course to be adopted in a pragmatic way had been said by superior courts of jurisdiction and the Apex Court of this country on occasion more than one. Though a catena of cases had been cited, one emerging from the Apex Court may alone be referred to here, leaving the rest as necessary in a bind to rather highlight to point. In Re. Sumer Puri v. State of U.P. their Lordships of the Supreme Court expressed: - 'When a civil litigation is pending for the property wherein the question of possession is invalid and has been adjudicated, initiation of a parallel Criminal proceeding under S.145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in a position to approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. "A contre position is also capable of being conceived in a situation where the main ingredients of the offence into which an investigation is made depend upon the determination of civil rights. That has to be done had been said in a scintillating fashion by a learned Judge of this Court in Thankappan v. Thankaraj (1988 LW Crl. 395) thus: it is true that this Court is generally reluctant to quash investigation into crimes. The police have a duty to investigate into cognizable offences and merely because a civil litigation, is in some way connected with the issue Criminal investigation cannot be stopped. As rightly contended by the learned counsel for the Respondent, determination of civil rights by the civil forum would be independent of investigation into crimes committed with reference to identical properties. However, this would depend upon the facts of each case and no hard and fast rule can be laid down. If the main ingredients of the offences into which an investigations is made, depend upon the determination of civil rights, then it is desirable that the civil courts are permitted to decide the issue. Requiring the police to go into complicated questions of civil rights in order to find whether the ingredients of the offences are made out would be beyond the scope of a police investigation into crimes." 9. As adverted to earlier, ordinarily civil and criminal proceedings are independent of each other and even if the subject-matter overlaps, they be continued simultaneously. It is also well settled that ordinarily if one of the two proceedings must be stayed, it is the civil proceedings that are stayed. This is based on distinction between the two proceedings. Criminal proceedings are based on public policy, while civil proceedings are intended to determine the rights between the parties. Even to this rule, having regard to the peculiar circumstances and the competing inherent characteristics of the case a learned Judge of the Delhi High Court made a departure in the sense of quashing criminal proceedings, in MISRI LAL Vs. TOTA RAM (1984 Crl. L.J. 1338). To bring home the point, it is I think to pen down in an incisive way the crisp facts of the case. TOTA RAM (1984 Crl. L.J. 1338). To bring home the point, it is I think to pen down in an incisive way the crisp facts of the case. The accused by entering into a conspiracy and forging a will, got the necessary mutations done in the Registry. The person effected by the forgery, besides launching criminal prosecution, resorted to bringing an action before the competent civil forum for the establishment of his rights. In such a situation, the question arose as to whether both proceedings should be allowed to come to their logical conclusion simultaneously, or one of the proceedings should be quashed or stayed till the other proceedings are concluded in this context, learned Judge observed as follows: - "While the proceedings pending in the criminal court would not naturally determine rights, the proceedings in the civil court would conclusively determine rights between the parties and put and end to the controversy. Moreover, on the outcome of the proceedings in the civil court, the accused persons could still be prosecuted either at the instance of the court, or otherwise, should the civil court return a finding that the will was a forged document and that it was used as genuine in the proceedings before the Tehsildar. Having regard, however, to the peculiar circumstances of this case and the competing inherent characteristics pointed out above. I think, I would be striking a reasonable balance between the conflicting claims to quash the proceedings on the condition that the complainant would be entitled to seek their revival on the conclusion of the Civil proceedings should he be advised to do so. He would also have the liberty to initiate fresh proceedings should the cause of action for it survive the decision of the civil court both directly or through the intervention of the civil court. I direct accordingly." 10. Courts in this country have also conceived of situations of conflicting decisions being arrived at by the civil and criminal forums, respecting a transaction giving rise to cause of actions for both actions. I direct accordingly." 10. Courts in this country have also conceived of situations of conflicting decisions being arrived at by the civil and criminal forums, respecting a transaction giving rise to cause of actions for both actions. This sort of a view has been taken in Ramanamma v. Appalanarasayya 1932 AIR(Madras) 254) and a Division Bench of this Court observed as under: - "It has often been said in this Court that, where a civil suit and a criminal complaint have been filed, which raise the same issues between the same parties, the hearing of the complaint should be stayed until the suit has been decided. And this has been put on the ground that it will avoid a possible conflict in decision. Our brother Jackson has pointed out in a judgment, in which we entirely concur, GNANSIGAMANI NADAR v. VEDAMUTHU NADAR 1927 AIR(Madras) 308), that the risk of such a conflict is one that is inherent in the division of causes into criminal and civil. The judgment of neither is binding on the other and each must decide the cause of the evidence before it. If they arrive at different conclusions, it is regrettable, but unavoidable." Maheswaran, J., while dealing with a contention that a criminal case is not maintainable when a civil suit for recovery is filed, observed thus in MASILAMANI v. G. Ranganathan (1987 L.W. Crl. 160). "I may at once point out that the two remedies are not mutually exclusive, but clearly co-extensive and essentially differ in content and consequence. In PRATHIBA RANI v. SURAJ KUMAR the Supreme Court has pointed out that there are a large number of cases where criminal law and civil law can run side by side and that the object of criminal law is to punish the offender who commits an offence against a person or property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life, but that does not however affect the civil remedies at all for using a wrong doer in cases like arson, accidents etc., and that it is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The Supreme Court further pointed out that the two types of actions are quite different in content, scope and import. The Supreme Court further pointed out that the two types of actions are quite different in content, scope and import. The objections, therefore, is not well founded, the petition under S.482 of the Crl. P.C. is therefore dismissed." 11. In this jurisprudential setting an attempt may now be made to sift the facts and circumstances of the instant case to find out the desirability or otherwise of continuing both actions till a logical conclusion in each case is arrived at. There is no pale of controversy that the trade mark in question is a registered one. Once a trade mark is registered certain rights are conferred on the registered owner as per section 28 of the Trade and Merchandise Marks Act. Section 29 deals with infringement of trade marks, while section 30 deals with defences open to the person against whom infringement action had been brought about, in the sense of stating what acts are not constituting infringement. Section 105 prescribes the forum for institution of proceedings either for infringement or passing off action, while section 106 specifies the reliefs that are available. These are thus the various provisions of the Trade and Merchandise Marks Act, 1958, for an aggrieved person to take recourse before the civil forum in establishment of his rights and for remedial action. These provisions apart the said Act in Chapter X, covered by sections 76 to 95, deals with offences, penalties and procedure relatable to proceedings before the criminal forum. Of these provisions reference may be made to sections 77, 78, 79 and 84 which are relevant for the present purpose. Section 77 deals with falsifying and falsely applying any trade mark, while sections 78 and 79 prescribe penalty for applying false trade mark, trade description, etc., and for selling goods to which a false trade mark or false trade description is applied. Section 84 provides the defences open to persons facing prosecution under Sections 77 to 79 of the Act. Section 77 deals with falsifying and falsely applying any trade mark, while sections 78 and 79 prescribe penalty for applying false trade mark, trade description, etc., and for selling goods to which a false trade mark or false trade description is applied. Section 84 provides the defences open to persons facing prosecution under Sections 77 to 79 of the Act. Worthy it is to note at this juncture the purpose for which the said Act has been enacted, as revealed by the Preamble of the Act, which is to the following effect: "An Act to provide for the registration and better protection of trade marks and for the prevention of the use of fraudulent marks on merchandise." The preamble clearly shows that not only protection was sought to be given to the owners of the registered trade marks in the sense of an assurance to the gullible public in purchasing genuine goods. To effectuate such a dual purpose, provisions as indicated supra, had been made. 12. The analogous provisions in the Copyright Act, 1957, may now be referred to Chapter XII, covered by sections 54 to 62, deals with civil remedies for infringement of copyright. Section 54 defines owner of copyright by way of an inclusive definition and section 55 deals with civil remedies for infringement of copyright. Section 63 prescribed punishment for the offence of infringement of copyright or other rights conferred by the Act, while section 63-A provides for enhanced penalty on second and subsequent convictions. 13. However, the single factor to be taken note of here is that no provision had been engrafted in these two Acts interdicting or inhibiting both civil and criminal actions being proceeded simultaneously before competent forums. 14. 13. However, the single factor to be taken note of here is that no provision had been engrafted in these two Acts interdicting or inhibiting both civil and criminal actions being proceeded simultaneously before competent forums. 14. Taking notice of the fact-situation, impelling or compelling the resorting to one course or the other, or both courses simultaneously, as had been done by various Courts of superior jurisdiction and the Apex Court in the decisions cited supra, and on an analogy of the various provisions adumbrated under the two Acts, I am of the view that in the instant case, both actions have to proceed simultaneously and if done so, no prejudice is likely to be caused to any of the parties, in as much as both the actions are not mutually exclusive, but clearly co-extensive and quite different in content and consequence, hereby affixing my seal of approval to the bone of contention urged by Mr. U.N.R. Rao, learned Senior Counsel appearing for the respondents. 15. The second bone of contention as urged is relatable to the feasibility or otherwise of fastening or mulcting liability upon petitioners 2 to 4/accused 2 to 4 in the facts and circumstances of the case, on the face of the sanguine provisions adumbrated either under Section 88 of the Trade and Merchandise Marks Act or under Section 69 of the Copyright Act, both provisions being identical in tener and terms without any variation whatever. There is no manner of doubt that first Petitioner Accused-1 Company would fall within the definition of the term 'Company' as contemplated by either of the aforesaid provisions. The effect of sub-section (1) of these provisions is that when an offence is said to have been committed by a Company, apart from fastening the liability upon the Company, other personal who are in charge of and responsible for the conduct of the affairs of the company at the time when the offence was committed, are also mulcted with liability for the offences stated to have been committed, by the company. There is also an identical proviso appended to both these sub-sections, according to which, if the person proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence, he shall not be liable for any punishment. There is also an identical proviso appended to both these sub-sections, according to which, if the person proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence, he shall not be liable for any punishment. Sub-section (2) of the aforesaid provisions stipulates that, notwithstanding anything contained in sub-section (1) where an offence under these Acts has been committed by a Company and is proved that the offence has been committed with the consent or connivance, of, or that the commission of the offence is attributable to any negligence on the part of any Director, Manager, Secretary, or other Officer of the company, such officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. 16. Mr. Thiagarajan, learned Senior Counsel, appearing for the Petitioners, contended that in the absence of specific allegations in the complaint as to Petitioners-2 to 4/Accused-2 to 4 being in charge of and responsible to the Petitioner-1/Accuse-1 company for the conduct of its business, the criminal proceedings initiated against them are liable to be quashed. Such a submission, I feel, cannot carry conviction either on facts or on law in facts and circumstances of the case. Petitioners-2 and 3 have been respectively described as General Manager and Regional Manager (South) of Petitioner-1 Company. This apart, specific averments had been incorporated in the complaints as to they being incharge of the Petitioner-1 company or responsible for the conduct of its business. In such circumstance, it is possible to presume that they on the face of sub-section (1) of Act are guilty of the offence and are liable to be proceeded against under the aforesaid provisions, are guilty and punished accordingly. Such a presumption is however refutable and this aspect of the matter is made crystal clear by the proviso appended to the said sub-section, according to which, if they prove that the offence, was committed without their knowledge or that they exercised due diligence to prevent the commission of the offence, they shall not be liable to any punishment. No doubt, true it is that as respects Petitioner-4/Accused-4, a partnership firm, it is not connected with the management of Petitioner-1 Company and it is after all a dealer of the products of Petitioner-1 Company. No doubt, true it is that as respects Petitioner-4/Accused-4, a partnership firm, it is not connected with the management of Petitioner-1 Company and it is after all a dealer of the products of Petitioner-1 Company. It is said that Petitoner-4 firm issued publication by way of advertisements in the newspapers displaying the respondent/complainant's trade mark "Sumeet" as that of Petitioner-1 company and it is also stated to have sold goods of that Petitioner-1 company to which false trade mark had been applied. From the mere facts that Petitioner-4 firm is not incharge of and responsible to the conduct of the affairs of Petitioner-1 company, it cannot be stated that Petitioner-4 is not prosecutable for the offence committed by Petitioner-1 company, on the face of the sanguine provision adumbrated under sub-section (2) which starts with a 'non-obstante' clause by the incorporation of the phraseology, 'Not withstanding anything contained in sub-section (1)'. This non-obstante clause has to be given its due meaning in the context in which it is used, and it makes it plausible to give interpretation in a pragmentic way to the provisions adumbrated in sub-sections (1) and (2) of these provisions. Under sub-section (1), the personnel in charge of and responsible to the company for the conduct of the affairs of the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly and such person charged can rebut such a presumption by showing that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. Under sub-section (2), it is legitimately permissible to prosecute even persons, who were not stated to be in charge of and responsible to the company for the conduct of its business, if it is proved that the offence has been committed with the consent or connivance of or attributable to the negligent on the part of any of those persons prosecuted. To put it otherwise, in case of prosecutions of persons under sub-section (2) presumption of their guilt cannot at all be inferred by virtue of their positions in the company as in the case of presumption to be drawn in the case of personnel, who had been in charge of and responsible to the affairs of the company for the conduct of its business. The question of proof for the involvement of persons in the offences committed by the company would be expected to come during the course of trial and even in case of persons prosecuted under Sub-section (2), a deeming provision had been incorporated therein in a limited way, in the sense of such of these persons deeming to be guilty of the offence committed by the company. The crux of the appreciable difference between the provisions adumbrated under sub-sections (1) and (2) bristles to these; Under sub-section (1), the burden is on the person charged of the offence to rebut the presumption invoked against him, while under sub-section (2) the burden of proof never shifts and it is always on the prosecution to prove by placing proper evidence before Court that the person charged is guilty of the offence. This sort of interpretation alone, I feel, will tend to give sense to the statutory provisions to achieve the purpose for which the same had been enacted. 17. In the decisions cited by Mr. Thiagarajan, learned senior Counsel for Petitioners, in CARBORANDUM UNIVERSAL v. FOOD INSPECTOR, THIRUVOTTIYUR (1989 L.W. Crl.41) SHAM SUNDAR AND OTHERS v. STATE OF HARYANA and MANIAN TRANSPORTS v. S. KRISHNAMOORTHY (1991 L.W. Crl. 137), there were no specific averments in the complaints as to the persons prosecuted for the offences said to have been committed by the company, being in charge of and responsible to the conduct of the affairs of the company. Such is not case here as respects Petitioner - 3 and their involvements in the management of the company is explicitly stated by incorporation of averments in the complaints. Though the case of Petitioner-4 stands on a different footing, in the sense of not attracting sub-section (1), yet it attracts liability under sub-section (2) of the aforesaid provisions, as stated supra. In the view that I have taken, the second bone of contention also bristles next to nothing. 18. For all the reasons stated above, all these petitions deserve to be dismissed and they are accordingly dismissed. In the view that I have taken, the second bone of contention also bristles next to nothing. 18. For all the reasons stated above, all these petitions deserve to be dismissed and they are accordingly dismissed. Held : that the preamble to the Trade and Merchandise Marks Act, 1958Copyright Act, 1957 inhibiting both civil and criminal actions being proceeded simultaneously and accordingly no prejudice is likely to be caused to any of the parties, if both actions have to proceed simultaneously as both the actions are not mutually exclusive but clearly co-extensive and quite different in content and consequences. As regards the feasibility or otherwise of fastening liability upon Petitioners No.2 & 3 the General Manager and Regional Manager of the petitioner Company, it is held that they are liable to be proceeded against unless they prove that the offence was committed without their knowledge or they exercised due diligence to prevent the commission of offence and then they shall not be liable to punishment. As their involvement in the management of the company is explicity stated in the complaints they are held liable. As regards the petitioner No.4 a partnership firm, a dealer of the products of the petitioner company, the said firm having sold goods to which false trade mark had been applied shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished unless it is shown that the offence was committed without its knowledge. In the circumstances all the petitions are hereby dismissed.