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2006 DIGILAW 1637 (DEL)

RAIS AHMAD v. STATE OF DELHI

2006-09-14

A.K.SIKRI

body2006
A. K. SIKRI, J. ( 1 ) ONE Saeed Ahmad Qaeed lodged FIR No. 205/02 dated 6. 7. 2002 under Sections 78/79 of the Trade and Merchandise Marks Act read with section 63 of the Copyright Act against the petitioner herein alleging that the petitioner was infringing his trade mark and copyright "g. S. " in relation to Cup leather Washer logo. The allegations were that the petitioner was the proprietor of the trade mark and was also having copyright in "g. S. " ( 2 ) ON the basis of registration of the said FIR raid was conducted at the premises of the petitioner on 6. 7. 2002 and 2130 pieces of Air hand pump cycle leather washer of Nos. 1 and 2 bearing trade mark G. S. Cup Leather Washer logo and 4 stamps/plates of iron bearing the reverse impression of trade mark of G. S. Cup leather Washer logo were recovered from the petitioner's premises. The petitioner were arrested and thereafter released on bail. The police filed challan, after investigation, in the Trial Court. Vide order dated 23. 7. 2004 charge was framed against the petitioners. The petitioners challenged this order by filing revision petition which has also been dismissed by the learned ASJ vide judgment dated 6. 1. 2005. Said order is impugned in this petition filed under Section 482 of the Code of Criminal Procedure. ( 3 ) CASE of the petitioner is that the petitioner is not the registered owner of the said trade mark "g. S. " It is pointed out that the original owner of the trade mark was one Abdul Gafoor, who by Deed of Assignment, assigned this trade mark to his son abdul Hameed Shakir. Certificate dated 6. 8. 1962 was issued by the trade mark registry in the name of Abdul Hameed Shakir in respect of this trade mark. In the records of the Trade Mark Registry name of Abdul Hameed Shakir only appears. On this basis it was contended by the learned Counsel for the petitioner that the complainant Saeed Ahmad Qaeed has no locus standi to lodge such an FIR. ( 4 ) DURING arguments learned Counsel for the petitioner could not deny that petitioner is the son of Abdul Hameed Shakir, who was the sole proprietor of m/s. G. S. Works. On this basis it was contended by the learned Counsel for the petitioner that the complainant Saeed Ahmad Qaeed has no locus standi to lodge such an FIR. ( 4 ) DURING arguments learned Counsel for the petitioner could not deny that petitioner is the son of Abdul Hameed Shakir, who was the sole proprietor of m/s. G. S. Works. The trade mark has been registered "in the name of Abdul hameed Shakir, trading as G. S. Works". It is stated in the petition itself that after the death of Abdul Hameed Shakir on 21. 4. 1997, additional representation No. 834053 was made by M/s. G. S. Works for trade mark G. S. with the Trade Mark registry on 28. 12. 1998. Abdul Hameed Shakir was survived by his widow mussamat Rabia Shakir and the complainant herein. The petitioner has also mentioned in the petition that Mussamat Rabia Shakir also died on 30. 7. 2001. Thus, on the death of Mussamat Rabia Shakir the complainant remained the only legal heir and as per the complainant, he has inherited the business M/s. G. S. Works by succession and thus has become the owner of the said trade mark as well. Learned ASJ, while dismissing the revision of the petitioner herein has rightly observed that at the stage of framing of notice/charge only prima facie material has to be seen. According to him, there was sufficient material on record to come to the conclusion that there was prima facie material against the accused persons. The relevant portion of the order is reproduced below: "7. In the present case, Sayeed Ahmed Qaeed has stated himself to be proprietor of M/s. G. S. Works. He made complaint for infringement of his trade mark under the provisions of Trade and Merchandise Marks Act, 1958. There is alleged recovery from the possession of the revisionists. In consequence of the recovery, case FIR No. 205/02 PS Jama Masjit was registered against the accused persons under the Trade and Merchandise marks Act, 1958. Keeping in view the fact that there was recovery from the possession of the accused persons of infringed goods, there was sufficient material before the learned. Trial Court to come to the conclusion that there is, prima facie, sufficient material on record to serve a notice under Sections 78/79 of the Trade and Merchandise Marks Act, 1958. " "8. Keeping in view the fact that there was recovery from the possession of the accused persons of infringed goods, there was sufficient material before the learned. Trial Court to come to the conclusion that there is, prima facie, sufficient material on record to serve a notice under Sections 78/79 of the Trade and Merchandise Marks Act, 1958. " "8. It is well settled proposition of criminal law that at the stage of framing of notice/charge a prima facie, case has to be seen. In the present case, there is sufficient material on the record file to come to the conclusion that there was prima facie sufficient material against the accused persons. The learned Trial Court was justified in issuing the notice against the accused/revisionists since infringed articles with falsified trade mark were recovered from the possession of the revisionist. " "9. In view of the above discussions, I am of the considered view that there is no illegality, infirmity or irregularity in the order dated 23. 7. 2004 passed by the learned Trial Court. The said order dated 23. 7. 2004 does not require any interference. Hence, the present revision petition is devoid of any merit and the same is hereby dismissed. " ( 5 ) I am in agreement with the aforesaid observations and, therefore, of the opinion that the petition is misconceived and without any merit. It is dismissed accordingly. Petition dismissed.