JUDGMENT 1. - By this Criminal Misc. Petition under section. 482 Criminal Penal Code, petitioner challenged the order dated 3.1.1997 passed by Special Judge, NDPS Cases, Jodhpur (hereinafter referred to as `the revisional Court') in revision petition filed by the petitioner against the order dated 24.10.1996 passed by Additional Chief Judicial Magistrate No. 3, Jodhpur (hereinafter referred to as `the trial Court') in Cr. Case No. 300/94. The trial Court vide order dated 4.10.1996, framed charges against the petitioner for offence under section 420 Indian Penal Code and Secs. 78 & 79 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as `the Act'). 2. I have heard learned counsel for the parties. Perused the order of the trial Court dated 24.10.1996 as well as order of the revisional Court dated 3.1.1997. 3. A first information report was lodged by Shri S.K. Gupta on 22.10.1993 at Police Station, Mahamandir, Jodhpur alleging therein that he is Deputy Manager of J.K. Cement Works, he has received information from stockist of Jodhpur J.K. Cement Works, Shri Jitendra Bhandari that the petitioner is a proprietor of Shyam Marble House and Sagar Marble House, which is selling duplicate cement under forged trade mark of J.K. Cement Works on the cement bags. One P.K. Agarwal purchased a bag of cement having trade mark of J.K. Cement Works from Shyam Marble House. On checking, the same was found different from that manufactured by J.K. Cement Works. He has produced the bill. Police registered a case and conducted search of shop and godown owned by Shyam Marble House of which the petitioner is the proprietor and found number of cement bags containing trade mark of J.K. Cement Works. After investigation, police reached to the conclusion that the petitioner has been selling the duplicate cement counterfeiting as cement manufactured by J.K. Cement Works but in fact it was not manufactured by the J.K. Cement Works Police filed the charge- sheet against the petitioner for the offences under sections. 420, 483 & 486 Indian Penal Code and under sections. 78 & 79 of the Act against the petitioner. The trial Court vide order dated. 24.10.1996 prima facie found that the offences under section. 420 Indian Penal Code and Secs. 78 & 79 of the Act are made out against the petitioner. 420, 483 & 486 Indian Penal Code and under sections. 78 & 79 of the Act against the petitioner. The trial Court vide order dated. 24.10.1996 prima facie found that the offences under section. 420 Indian Penal Code and Secs. 78 & 79 of the Act are made out against the petitioner. Against this order, petitioner preferred a revision petition before the learned Sessions Judge, which was transferred to the revisional Court for decision. The learned revisional Court, after carefully going through the entire material filed by the police along with investigation report, reached to the conclusion that not only offence 3. A first information report was lodged by Shri S.K. Gupta on 22.10.1993 at Police Station, Mahamandir, Jodhpur alleging therein that he is Deputy Manager of J.K. Cement Works, he has received information from stockist of Jodhpur J.K. Cement Works, Shri Jitendra Bhandari that the petitioner is a proprietor of Shyam Marble House and Sagar Marble House, which is selling duplicate cement under forged trade mark of J.K. Cement Works on the cement bags. One P.K. Agarwal purchased a bag of cement having trade mark of J.K. Cement Works from Shyam Marble House. On checking, the same was found different from that manufactured by J.K. Cement Works. He has produced the bill. Police registered a case and conducted search of shop and godown owned by Shyam Marble House of which the petitioner is the proprietor and found number of cement bags containing trade mark of J.K. Cement Works. After investigation, police reached to the conclusion that the petitioner has been selling the duplicate cement counterfeiting as cement manufactured by J.K. Cement Works but in fact it was not manufactured by the J.K. Cement Works Police filed the charge- sheet against the petitioner for the offences under sections. 420, 483 & 486 Indian Penal Code and under sections. 78 & 79 of the Act against the petitioner. The trial Court vide order dated. 24.10.1996 prima facie found that the offences under section. 420 IPC and Secs. 78 & 79 of the Act are made out against the petitioner. Against this order, petitioner preferred a revision petition before the learned Sessions Judge, which was transferred to the revisional Court for decision. The trial Court vide order dated. 24.10.1996 prima facie found that the offences under section. 420 IPC and Secs. 78 & 79 of the Act are made out against the petitioner. Against this order, petitioner preferred a revision petition before the learned Sessions Judge, which was transferred to the revisional Court for decision. The learned revisional Court, after carefully going through the entire material filed by the police along with investigation report, reached to the conclusion that not only offence u/s. 420 IPC but offences u/ss. 483 & 486 IPC are also made out. The revisional Court also found that the offences u/ss. 78 & 79 of the Act are prima facie made out and, therefore, there are grounds to proceed against the petitioner for the offences noticed here in above. Aggrieved by the order of the revisional Court, the petitioner has filed this criminal miscellaneous petition.. 420 IPC but offences under sections. 483 & 486 Indian Penal Code are also made out. The revisional Court also found that the offences under sections. 78 & 79 of the Act are prima facie made out and, therefore, there are grounds to proceed against the petitioner for the offences noticed here in above. Aggrieved by the order of the revisional Court, the petitioner has filed this criminal miscellaneous petition. 4. Learned counsel for the petitioner contended that the revisional Court fell in error in directing the trial Court to frame charge against the petitioner for offences under sections. 483 & 486 Indian Penal Code. The trial Court by elaborate judgment came to the conclusion that after framing charges under sections. 78 & 79 of the Act, thereof is no necessity of charges under sections. 483 & 486 IPC. He has relied on a judgment of this Court in Hari Prasad & Ors. v. State of Rajasthan, 1994 Cr.L.R. (Raj.) 200 , wherein the Magistrate did not take cognizance against the accused for the offence under sections. 326 Indian Penal Code. That order was not challenged in revision either by the State or by the complainant and on challenge made by the accused, the revisional Court suo moto directed the Magistrate to consider the record and take cognizance against the accused therein for the offence under sections. 326 Indian Penal Code. This Court held that the revisional Court fell in grave error in directing the Magistrate to consider if any offence under sections. 326 Indian Penal Code. This Court held that the revisional Court fell in grave error in directing the Magistrate to consider if any offence under sections. 326 was made out and to take cognizance of offence under sections. 326 IPC. This part of the order of the revisional Court was found to be illegal, improper and unjust and accordingly it was set aside. Learned counsel for the petitioner further contended that the trial Court as well as the revisional Court fell in error in framing the charges for the offence under sections. 420 Indian Penal Code. He contended that Secs. 78 & 79 of the Act provide penalty for applying false trade descriptions etc. and selling goods to which a false trade mark or false trade is applied. Therefore, the act alleged to have been complained by the complainant falls within the ambit of Secs. 78 & 79 of the Act and, therefore, there is no necessity of framing the charges under sections. 420 Indian Penal Code. 5. Learned counsel has relied on a judgment of Karnataka High Court in Syed Kaleem v. M/s. Mysore Lakshmi Beedi Works & Anr., 1993 Cr.L.J. 232 , wherein it was held that in view of Secs. 78 & 79 of the Act providing penalty for false trade descriptions etc. and selling goods to which a false trade mark and false trade description is applied, a further charge under the Indian Penal Code becomes wholly inapt. In Syed Kaleem's case (supra), the Magistrate framed the charges against the accused for offences under sections. 420, 120-A & 120-B Indian Penal Code. However, no charge was framed under sections. 78 & 79 of the Act. 6. Learned counsel has also relied on a judgment of Calcutta High Court in Zahir Ahmed v. Azam Khan, 1996 Cr.L.J. 290 , wherein relying on the judgment of the Karnataka High Court in Syed Kaleem's case (supra), the Calcutta High Court has held that applying for false trade description etc. or selling goods to which false trade mark or false trade description is applied does not constitute offence of cheating. 7. or selling goods to which false trade mark or false trade description is applied does not constitute offence of cheating. 7. On the other hand, learned Public Prosecutor supported the order of the revisional Court and contended that there is ample material on record which prima facie shows that the petitioner has committed the offence as noticed above and the trial Court was justified in taking cognizance for the offence under sections. 420 Indian Penal Code along with Secs. 78 & 79 of the Act as well as the revisional Court was fully justified to observe that from the material available on record, the offence under sections. 483 & 486 IPC is prima facie made out and there are grounds to proceed against the petitioner for the said offences. He further contended that in the instant case, from the material on record, all the essential ingredients of cheating as envisaged under sections. 415 Indian Penal Code are present. 8. Learned Public Prosecutor has invited my attention to illustration (b) to Section 415 IPC wherein A by putting a counterfeit mark on an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby dishonestly induces Z to buy and pay for the article. A cheats. In the instant case, it is evident from the record that the petitioner alleged to have put a counterfeit mark in the name and style J.K. Cement Works on a cement bag containing the cement actually having not been manufactured by the J.K. Cement Works intentionally deceived prosecution witness Shri P.K. Agarwal and caused him to believe that the said cement bag was manufactured by J.K. Cement Works and thus, he dishonestly induced Shri P.K. Agarwal to buy and pay for the said cement bag. Thus, this act of the petitioner clearly amounts to cheating and, therefore, the offence under sections. 420 Indian Penal Code is prima facie made out against the petitioner. 9. I have considered rival submissions made at the bar. In the instant case, there is element of cheating inasmuch as the cement bag containing cement not being manufactured by J.K. Cement has allegedly been sold as cement manufactured by J.K. Cement Works. 420 Indian Penal Code is prima facie made out against the petitioner. 9. I have considered rival submissions made at the bar. In the instant case, there is element of cheating inasmuch as the cement bag containing cement not being manufactured by J.K. Cement has allegedly been sold as cement manufactured by J.K. Cement Works. Petitioner dishonestly applied and affixed the trade mark of J.K. Cement Works and dishonestly induced the buyer/customer of bag or caused the customer to believe that the said cement bag contains the cement manufactured by the J.K. Cement, knowing well that the said cement bag does not contain the cement manufactured by the J.K. Cement Works and thereby, prima facie the petitioner committed offence of cheating so far as its buyer Shri P.K. Agarwal is concerned. Thus, it cannot be said that when the petitioner is charged with the offences under sections. 78 & 79 of the Act, he cannot be charged with Section. 420 Indian Penal Code. In my considered opinion, prima facie offence under sections. 420 Indian Penal Code appears to have been made out against the petitioner. More so, both the Courts below concurrently found prima facie offence under sections. 420 Indian Penal Code against the petitioner and, therefore, the judgment relied on by the learned counsel for the petitioner is of no avail so far as offence under sections. 420 Indian Penal Code is concerned. However, learned Public Prosecutor could not support the order of the revisional Court, whereby the revisional Court directed the trial Court to frame charges under sections. 483 and 486 IPC. I am fortified with the view taken by this Court in Hari Prasad & Ors. v. State (supra). In this view of the matter, the order of revisional Court directing the trial Court to frame the charges against the petitioner for the offences under sections. 483 & 486 IPC cannot be sustained. 10. In view of the aforesaid discussion, this petition is partly allowed to the extent the order dated 3.1.1997 passed by the revisional Court directing the trial Court to frame the charges against the petitioner for offences under sections. 483 & 486 Indian Penal Code is set aside. However, the order of trial Court framing the charges against the petitioner for the offence under sections. 420 Indian Penal Code and 78 & 79 Trade and Merchandise Marks Act, 1958 is maintained.Petition partly allowed *******