Judgment R.C.Kathuria, J. 1. The petitioner seeks quashing of complaint instituted by the respondent-complainant in the Court of Chief Judicial Magistrate, Chandigarh under Sections 77, 78 and 79 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as `the Act) and subsequent proceedings taken therein. 2. In order to decide the controversy raised in the present petition, in a few facts as stated in the complaint need to be noticed. Complainant M/s. Tas Med (I) Ltd. based in Sector 26, Chandigarh through its Director, Balwan Singh, has stated in the complaint that it is engaged in manufacture and sale of medicines like Mogit, Lokcid, Lam, Helineso, Isonit, Tamin, Famit, Zedep as well as Digon etc. The company of the complainant is the proprietor of the trade mark LOKCID which is a product of the company. It had moved application No. 701525 which is pending before the Registrar of Trade Mark at Bombay. Having applied prior and on account of prior adoption and extensive users of trade mark LOKCID, it had acquired under the Act exclusive right to use this trade mark of `LOKCID. The people of trade and consumer, associate doctors, chemists as well as stockists associates are well conversant with the above product bearing trade mark `LOKCID product of the company and thus their products have acquired reputation in the market. The complainant company spent lakhs of rupees for advertisement of this product. Lately, it has come to the notice of the complainant that the petitioner had been using the said brand name of `LOKCID by falsified trade mark of `LOKCID and had in its possession dies block and other instruments used for falsified trade mark `LOKCID which is the trade name of the product produced by the complainant company. Having manufactured the said drug with the falsified trade mark `LOKCID the petitioner had committed the offence under Sections 77, 78 and 79 of the Act. Aggrieved by the complaint filed, the petitioner has sought quashing of the complaint. 3. I heard counsel for the petitioner as well as counsel representing the respondent-complainant at length. 4. Quashing of the complaint in question has been sought on behalf of the petitioner on four courts. Aggrieved by the complaint filed, the petitioner has sought quashing of the complaint. 3. I heard counsel for the petitioner as well as counsel representing the respondent-complainant at length. 4. Quashing of the complaint in question has been sought on behalf of the petitioner on four courts. Firstly, that the petitioner had applied to the Commissioner of Food and Drugs, Control Administration, Gujarat State, Gandhi Nagar for registration of certain trade names for manufacturing and market of the products vide application dated 28.6.1999 which was accepted and the petitioner was permitted to use the trade name sought to be registered as an interim arrangement vide letter dated 29.6.1999 (Annexure-P. 1) which permission was granted under the Drugs and Cosmetics Act, 1940 (hereinafter referred to as `the Act of 1940) and Rules framed thereunder wherein the petitioner had been permitted to manufacture and market a drug under the name and style of `LOKCID-20 among other products. Thereafter the petitioner started manufacturing and have been marketing the above said drug since 29.6.1999. On 14.2.2002, respondent with the help of the Police raiding party on the basis of search warrant obtained from the Chief Judicial Magistrate, Chandigarh searched the premises of the petitioner and took into custody manufactured drugs, dies, blocks etc. which action is wholly illegal and unjustified under the law. Secondly, that the respondent-complainant had applied to the Registrar of Trade Marks at Bombay for registration of trade mark `LOKCID vide application No. 701515 which is still pending before the said Registrar and has yet not been accepted and for that reason no action whatsoever could be maintained by filing complaint against the petitioner. In support of the stand reliance was placed on the provisions of Section 27 of the Act. Thirdly, it was contended that before the complaint could be filed against the alleged violator under the provisions of Sections 77, 78 and 79 of the Act, the complainant has to show mens rea of the petitioner-accused before he could be prosecuted. Fourthly, that the Court at Chandigarh has no jurisdiction because the drugs in question were neither manufactured nor marketed in Chandigarh. 5. Fourthly, that the Court at Chandigarh has no jurisdiction because the drugs in question were neither manufactured nor marketed in Chandigarh. 5. The stand taken on behalf of the petitioner had been controverted on behalf of the respondent mainly on the ground that the petitioner had not been granted permission under the Act so as to manufacture or sell `LOKCID and the grant of permission under the Act of 1940 would not permit the petitioner to violate the provisions of the Act. Additionally, it was contended by her that in the present petition dispute on facts has been raised by the petitioner which could only by adjudicated upon after the evidence is led by the parties. 6. In order to appreciate the respective stands taken by the parties, notice has to be taken of the provisions of Sections 77, 78 and 79 besides other relevant provisions of the Act : "77. 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 or a deceptively similar mark; (b) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise. (2) A person shall be deemed to falsely apply to goods 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 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, filing, 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, the burden of proving the assent of the proprietor shall lie on the accused. 78. Penalty for applying false trade marks, trade descriptions, etc. (4) in any prosecution for falsifying a trade mark or falsely applying a trade mark to goods, the burden of proving the assent of the proprietor shall lie on the accused. 78. Penalty for applying false trade marks, trade descriptions, etc. Any person who : (a) falsifies any trade mark; or (b) falsely applies to goods any trade marks; 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 (e) applies to any goods to which an indication of the country or place in which the 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 117, a false indication of such country, place. name or address; or (f) tampers with, alters or effects an indication of origin which has been applied to any goods to which it is required to be applied under section 117, or (g) causes any of the things abovementioned 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 may extend to two years, or fine, or with both; Provided that where the offence under this section is in relation to goods or any package containing goods whcih are drugs within the meaning of clause (b) of Section 3 of the Drugs Act, 1940. or "food" as defined in clause (v) of section 2 of the Prevention of Food Adulteration Act, 1954, the offender shall be punishhable with imprisonment for a term which may extend to three years, or when fine, or with both. 79. Penalty for selling goods to which a false trade mark of false trade description is applied. or "food" as defined in clause (v) of section 2 of the Prevention of Food Adulteration Act, 1954, the offender shall be punishhable with imprisonment for a term which may extend to three years, or when fine, or with both. 79. Penalty for selling goods to which a false trade mark of false trade description is applied. - Any person who sells, or exposes for sale, or has in his possession for sale for any purpose of trade or manufacture, any goods or things to which any false trade mark or false trade description is applied or which, being required under section 117 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 manufacture or the person for whom the goods are manufactured, are without the indication so required, shall, unless he proves : (a) that, having taken all reasonably procautions, against committing an offence against this section, he had at the time of commission of the alleged offfence 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, and (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 (c) that otherwise he had acted innocently; be punishable with imprisonment for term which may extend to two years, or with fine, or with both; Provided that when the offence against this section is in relation to goods or any package containing goods which are drugs as defined in clause (b) of section 3 of the Drugs Act, 1940, or "food" as defined in clause (v) of section 2 of the Prevention of Food Adulteration Act, 1954, the offender shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both." 7. Reading of Section 77 of the Act would leave no manner of doubt that before an inference of falsifying and falsely applying trade mark can be drawn as a primary requirement it has to be shown that it was done without assent of the proprietor of the trade mark and the mark makes use of that trade mark or a deceptively similar mark or falsifies any genuine trade mark whether by alteration, addition, effacement or otherwise. Same would be the conclusion where such a recourse is adopted for the goods or package contained in the goods. Who will be construed as proprietor within the purview of the aforesaid provision has to be taken notice of on the basis of definition of "registered proprietors" as contained in sub-clause (q) of Section 2 (1) of the Act, wherein it has been stated that "registered proprietor" in relation to a trade mark, means the person for the time being entered in the register as proprietor of the trade mark. It has also been stated in sub-clause (r) of the aforesaid sub-section that "registered trade mark" means a trade mark which is actually on the register. Further "registered user" has been so defined in sub-clause (s) of the aforesaid sub-section means a person who is for the time being registered as such under section 49. It would be appropriate to notice the definition of "trade mark" contained in sub-clause (v) of Section 2 (1) of the Act which is as under :- "(v) "trade mark" means :- (i) in relation to Chapter X (other than section 81), a registered trademark of a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and (ii) in relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark registered as such under the provisions of Chapter VIII." 8. The above definition would indicate that it includes "certification trade mark" for the purpose of registration and comprise registered and unregistered trade mark which is in use for the purpose of Chapter-X which deals with the penal provisions. Therefore, the meaning of certified trade mark has also to be taken notice of which has been defined in sub-clause (c) of Section 2(1) of the Act in the following terms : "(c) "certification trade mark" means a mark adapted in relation to any goods to distinguish, in the course of trade, goods certified by any person in respect of origin, material, mode of manufacture, quality, accuracy or other characteristic, from goods not so certified and registrable as such under the provisions of Chapter VIII in respect of those goods in the name as proprietor of the certification trade mark, of that person." 9. The definition clause also defines "deceptively similar" and "false trade description" in detail in Section 2(1) of the Act. 10. Section 29 of the Act defines what is infringement of trade marks while Section 31 states that registration is `prima facie evidence of valid trade mark. The question what are the prima facie requirements under Sections 78 and 79 of the Act which are penal provisions came up for consideration in Brundaban Shau v. B. Raiendra Subudhi, AIR 1986 Orissa 210. It was observed in pars 4 of the dgment as under : "Coming now to the offence under the Trade and Merchandise Marks Act, 1958, S.78 is the penal provision for applying false trade marks and S. 79 is penal provision for selling goods to which a false trade mark of false trade description is applied. Chapter II of the said Act deals with the Register and conditions for registration and Chapter III of the Act deals with procedure for registration and duration of registration. S. 29 of the Act defines what is an infringement of trade mark and S. 31 is the provision which says that registration is the prima facie evidence of a valid trade mark. The complainant who complains of infringement of his trade mark in respect of any article by somebody else must first establish that he has a registered trade mark with the Registrar of the Trade Mark." 11. The complainant who complains of infringement of his trade mark in respect of any article by somebody else must first establish that he has a registered trade mark with the Registrar of the Trade Mark." 11. Turning to the facts of the present case, it has been stated in the complaint by the complainant that the complainant company has already applied before the Registrar of Trade Marks vide application No. 701525 which is pending before the Registrar of Trade Marks at Bombay and by virtue of the prior adoption and extensive use of the trade mark `LOKCID it has acquired the exclusive right to use this trade mark under the Act. The allegations made by the complainant do not fulfil the above requirement of law. Rather, it is clearly spelled out that the pre-condition required for invoking the provisions of Sections 78 and 79 of the Act are not fulfilled. The first requirement for the complainant to allege the infringement of his trade mark in respect of the article by somebody else is to establish that he has registered the trademark with the Registrar of Trade Marks. Merely, because an application has been moved on behalf of the petitioner to the Registrar, Trade Marks, Bombay would not in any manner establish that he had acquired the right of registered trade mark of the manufactured goods `LOKCID as is sought to be maintained by the complainant. As such no such cognizance could be taken in respect of the allegations so made so as to invoke the provisions of Sections 78 and 79 of the Act. 12. In view of the position explained above, the decisions in Vishwa Mitter v. O.P. Poddar and others, AIR 1984 SC 5 and Flower Tobacco Company v. State and another, 1986 PTC 352, would render no assistance to the complainant. 13. Coming to the stand taken on behalf of the petitioner it has not been disputed by the counsel representing the respondent that the petitioner had been granted permission to manufacture and market `LOKCID-20 under the licence issued by the competent authority, copy of which is Annexure-P. 1. Notice has to be taken of the provisions contained under Section 84 of the Act. Notice has to be taken of the provisions contained under Section 84 of the Act. It has been stated therein that the provisions of Sections 77, 78 and 79 of the Act shall apply in relation to registered trade mark or proprietor of such trade mark subject to the right created or recognised by this Act and no act or omission shall be deemed to, be an offence under Section 77 or Section 78 or Section 79 of the Act, if (a) the alleged offence relate to a registered trade mark and the act or omission is permitted under this Act, and (b) the alleged offence relates to a registered or an unregistered trade mark and the act or omission is permitted under any law for the time being in force. Manifestly, the above quoted provisions of sub-clause (b) of Section 2(1) of the Act cannot be ignored so far as petitioner is concerned. The petitioner has been permitted to manufacture the drug under the name `LOKCID-20 by the Commissioner of Food and Drug, Control Administration, Gujarat State, Gandhi Nagar. Thus, under the provisions of another Act, the petitioner had started manufacturing and marketing the drug. Therefore, under the circumstances of the case, the complainant cannot invoke the provisions of Sections 77, 78 and 79 of the Act against the petitioner. 14. The other ground taken with regard to the establishment of mens rea of the petitioner to establish the offence relates to the stage of evidence and cannot be determined at this stage in these proceedings. 15. The definite case set up by the complainant is that the petitioner-accused has been supplying the goods with falsified trade mark name `LOKCID-20 so as to defraud the people at large in order to cause pecuniary loss to complainant company. The question whether the manufactured drug by the petitioner-accused had been supplied within the area of jurisdiction as such has to be decided on the basis of evidence led on the file. Therefore, this question cannot be decided by invoking the provisions of Section 482 of the Code. 16. In view of the position of law explained in the earlier part of the order it is prima facie made out that filing of the complaint by the complainant against the, petitioner-accused is misuse of the process of Court and abuse of process of law. 16. In view of the position of law explained in the earlier part of the order it is prima facie made out that filing of the complaint by the complainant against the, petitioner-accused is misuse of the process of Court and abuse of process of law. Accordingly, the petition is allowed and the complaint in question and the proceedings taken therein by the Court of Chief Judicial Magistrate, Chandigarh against the petitioner are quashed.