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Rajasthan High Court · body

2005 DIGILAW 250 (RAJ)

Anil Chhajer v. State of Rajasthan

2005-01-28

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By these criminal miscellaneous petitions under Section 482, CrPC, the petitioner has challenged the order impugned dated 19.06.2003 passed by the Chief Judicial Magistrate, Bhilwara (for short, "the trial Court" hereinafter) in Criminal Case Nos. 197/2003 and 198/2003, by which the trial Court took cognizance of the offences under Section 420, IPC, and Sections 103 and 104 of the Trade Marks Act, 1999 (for short, "the Act" hereinafter) against the petitioner. 2. The facts of the case, relevant and necessary for disposal of the miscellaneous petition are that complainant Dharampal Singh, Brand Protection Manager of Reliance Industries & Raymond Limited lodged an FIR with Police Station, Pratap Nagar, Bhilwara, inter alia, alleging that one R. Shanker Durai had woven and stocked for sale some cloth resembling to the selvedge produced by Reliance Industries bearing the trade mark "Vimal" and made preparation to pass over the spurious cloths to the general public as genuine and produced by Reliance Industries. On this report, investigation ensued and 27 lumps of cloth were seized. The investigation revealed that the seized selvedge was got prepared by the petitioner on job basis. It also revealed during investigation that the petitioner had stocked and displayed for sale and selling cloth resembling to the selvedge manufactured by the complainants company. After investigation, the police filed challan against the petitioner. The trial Court, vide impugned order dated 19.06.2003, took cognizance of the aforesaid offences against the petitioner. 3. I have heard learned Counsel for the parties and perused the order impugned. 4. It has been contended by the learned Counsel for the petitioner that the Act came into force on 15.09.2003 whereas the trial Court took cognizance of the offences under Sections 103 and 104 of the Act vide order dated 19.06.2003. His further contention is that the ingredients of the offence under Section 420, IPC, are missing and as such the impugned order taking cognizance of the aforesaid offences cannot be sustained. 5. As per the Notification No. S.O. 1048 (E) dated 15.09.2003 issued by the Ministry of Commerce and Industry, the Central Government appointed 15th day of September, 2003 as the date on which all the provisions of the Act shall come into force. The complaint was filed on 10.12.2002 and the trial Court took cognizance vide impugned order dated 19.06.2003 whereas the Act itself came into force w.e.f. 15.09.2003. The complaint was filed on 10.12.2002 and the trial Court took cognizance vide impugned order dated 19.06.2003 whereas the Act itself came into force w.e.f. 15.09.2003. Thus, the trial Court has erred in law and on facts in taking cognizance against the petitioner for the offences under Sections 103 and 104 of the Act. 6. So far as offence under Section 420, IPC, is concerned, cheating has been defined under Section 415, IPC, whose ingredients are that there should be fraudulent or dishonest inducement of a person by deceiving him, the person so deceived should be intentionally induced to deliver any property to any person so intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived. Lastly, the act or omission should be one which causes or is likely to cause damage or harm to that person in body, mind, reputation or property. The facts of the case reveals that the fraudulent or dishonest inducement could be to the person (s) to whom alleged misbranded or counterfeited cloth was/is to be sold. At any rate, there is no fraudulent or dishonest inducement by the petitioner to the complainants company and as such the offence under Section 420, IPC, is not made out. 7. In the aforesaid factual-matrix and the legal position, there was no justification in taking cognizance against the petitioner for the offences under Section 420, IPC, and Sections 103 and 104 of the Act. The trial Court erred in law and on facts in not considering the case in right perspective. 8. Consequently, both the miscellaneous petitions are allowed; the impugned orders, both dated 19.06.2003, passed by the trial Court in Criminal Cases No. 197/2003 and 198/2003 are set-aside. The stay petitions filed alongwith both the miscellaneous petitions are disposed of .