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2008 DIGILAW 1252 (PNJ)

Kanvvar Kishore Jain v. State Of Punjab

2008-07-22

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This is a petition under Section 482 of the Code of Criminal Procedure for quashing of FIR No. 100 dated 1.12.2004 registered under sections 101/102/103/104 of the Trade Marks Act, 1999 at Police Station Division No. 3, Ludhiana. FIR registered against the petitioner reads as under :- " The Senior Superintendent of Police, Ludhiana. Sub : Application for obtaining Legal opinion from some senior Law Officer in the matter. Respectfully Showeth :- That the petitioner is partner of M/s Ambika Pharmacy 5265 Anand Nagar, Haibowal Kalan, Ludhiana which is registered proprietor of SURMI Tone. That as Kanwal Kishore Jain and others were misusing the product of the complainant by claiming that their the product is also registered with Registrar of trade Mark which in fact was not so. The petitioner filed the application before your honors which was entrusted to the SHO Div. No. 3 who conducted the enquiry in detail, submitted the report (copy of complaint is attached herewith). That Sh. Mohan Lal DSP verified that report at length and agreed to it. During the investigation of documentary evidence for get notice of Trade mark which proves that the product of the accused which they alleged to be registered were submitted before the SHO & DSP and from the oral evidence and as well as from the documentary evidence a clear case u/s 420,467,468,471 read with section 120-B IPC & u/s 78/79 of Trade and Merchandise Act was made out to this effect. Shri Mohan Lal DSP City-I made a detailed that prima facie criminal was made out against the accused. He also sought that the legal opinion from DA. (L) Ludhiana that DA Legal without going through the oral evidence and documentary evidence has made a report that the matter is for civil matter and no case is made out which is altogether wrong and misconception of fact and law. That if your honour go through the facts of the case oral evidence and documentary evidence your honour will find that a clear cut criminal case is made out against the accused. So it is requested that opinion of senior law officers may kindly be obtained and the complaint be decided accordingly. Sd/- petitioner Sandeep Kumar Partner of M/s Ambika Pharmacy, 2565 Anand Nagar, Haibowal Kalan Ludhiana Date October 15, 2004." 2 Mr. So it is requested that opinion of senior law officers may kindly be obtained and the complaint be decided accordingly. Sd/- petitioner Sandeep Kumar Partner of M/s Ambika Pharmacy, 2565 Anand Nagar, Haibowal Kalan Ludhiana Date October 15, 2004." 2 Mr. H.S. Gill, learned senior counsel appearing on behalf of the petitioner has sought quashing of the FIR and subsequent proceedings on the plea that registration of the FIR and subsequent proceedings are nothing but misuse of the process of the court. 3. Petitioner Kamal Kishore Jain is the partner of M/s Surma Kanwal Nain Pharmacy, Shish Mahal, Hoshiarpur. The firm is established and reputed manufacturer and trader of Ayurvedic medicinal preparations comprising of products of SURMA, SURMI KAJAL AND EYE DROPS" for treatment "of eyes disease and as eyes salves since 1937-38 under the name and style of M/s SURMA Kanwal Nain Pharmacy. This firm was established for more than 65 years ago by Shri Shanti Lal Jain, father of the petitioner. 4. It is further claimed that ever since that period i.e. 65 years, the petitioners firm has been makings extensive sale of its products. It has been, widely accepted in the public and its clients for its high quality and superior Ayurvedic medicinal effects. The-products being manufactured and sold by the petitioners firm have been in the shape of SURMA, SURMI, and eye drops in respect of the eyes disease and eyes salve. The said words SURMA, SURMI, and eye drops are descriptive words used, to describe the nature of the product. The petitioners firm has also been selling other products comprising of Balm, Churran and Manjan etc. as Ayurvedic preparations. It is contended that petitioners firm has been selling its products by adoption and use of the trade Marks Kanwal and Kanwal Nain with and without the use of the word SURMA, and/or SURMI as suffix and prefix. Inasmuch as that the products being manufactured and sold by the firm of the petitioner are Kanwal Nain, SURMI, Kanwal Nain SURMA, Kanwal Nain Eyes drops, Kanwal Nain Hajina Churan, Kanwal Nain Manjal, Kanwal Dard Nashik Bam, Kanwal Gulab Jal and the products of the firm of the petitioner are being sold extensively under the aforesaid Trade Marks, in which the Trade Mark Kanwal and/or Kanwal Nain is prominently used and displayed, whereas the other words as suffix/prefix thereof are the words of descriptive nature. 5. 5. It is further contended by the learned senior counsel appearing on behalf of the petitioner that the firm of the petitioner has been granted registration Certificate for Industrial Unit by the Department of Industries, Punjab vide Registration No. HSX/Ind/Sub/352 dated 6.10.1983. It also confirmed that the firm was registered as a Small Scale Unit with department of Industries Pb., vide Regn. No. 16/06/00026/PMT/SSI dated 14.5.1970. It is further contended by the learned senior counsel for the petitioner that the firm has also been granted certificate of good manufacturing Practices (GMP) as Manufacturer of Ayurveda, Sidha or Unani drugs confirming that it was granted the licence by Licensing Authority, Ayurvedic Department, Punjab and firm has also been granted registration of its trade mark Kanwal Nain vide registration No. 349906 dated 1.6.1979 in respect of Ayurvedic Medicinal preparation for the treatment of eye disease and SURMA being eyes salve. 6. On the above said averments learned counsel for the petitioner contends that no evidence can be said to have been leveled against the petitioner as the petitioner is selling, their product under the title KANWAL NAIN SURMI. The petitioner is sought to be prosecuted on the plea that word SURMI is a registered trade mark of the complainant and they are manufacturing different herbal products under the trade name of SURMI an therefore, use of work SURMI violates the provisions of the Act and on that account the petitioner is liable to be prosecuted. 7. Mr. H.S. Gill, learned senior counsel appearing on behalf of the petitioner contends that the present proceedings are misuse of the process of the court as on an earlier occasion a complaint was instituted on the similar allegations against the petitioner. Said complaint was contested. However, the same was dismissed in default on 28.5.1991 and the said order was not challenged and attained finality. It is further the case of the petitioner that even the civil suit filed on the same allegations was also dismissed for non- prosecution and therefore, the present complaint is not competent. 8. In support of this contention learned senior counsel appearing on behalf of the petitioner placed reliance on the judgment of this court in the case of Jagir Singh and another v. State of Haryana and another, 2006(4) RCR(Criminal) 559, wherein this Court has been placed to lay down as under: "15. 8. In support of this contention learned senior counsel appearing on behalf of the petitioner placed reliance on the judgment of this court in the case of Jagir Singh and another v. State of Haryana and another, 2006(4) RCR(Criminal) 559, wherein this Court has been placed to lay down as under: "15. Similarly in Poonam Chand Jain and another v. Fazm, 2005(1) RCR(CrL) 600 : 2005(1) Apex Criminal 273 : 2005 Supreme Court Cases (Crl.) 190, a similar view was taken that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reason, the Magistrate under Section 204 of the Code may take cognizance of an offence and issue process if there is sufficient ground for proceeding. But the second complaint on the same facts could be entertained only in exceptional circumstances namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. 17. Thus, keeping in view the aforesaid legal position with regard to filing and entertaining a second complaint on the same allegations, even the second complaint by respondent No. 2 could not have been entertained by the Judicial Magistrate. If the Judicial Magistrate has been debarred from entertaining the second complaint on these facts, in my opinion, on the basis of such complaint with exactly same allegations, the FIR could not have been lodged by the police and the Court should not have taken cognizance on the challan filed by the police in the said FIR. Therefore, in the facts and circumstances of the case, the lodging of the FIR and the consequent proceedings thereon in my opinion, are totally an abuse of the process of the court. 19. In the instant case, on the earlier complaint filed by respondent No. 2, not only the Magistrate took cogn izance of the offence but he also followed the procedure envisaged in Chapter XV of the Code. He sought the police report under Section 202(1) of the Code and also recorded the preliminary evidence of the complainant. 19. In the instant case, on the earlier complaint filed by respondent No. 2, not only the Magistrate took cogn izance of the offence but he also followed the procedure envisaged in Chapter XV of the Code. He sought the police report under Section 202(1) of the Code and also recorded the preliminary evidence of the complainant. Thereafter, lie came to the conclusion that there were not sufficient grounds to proceed against the accused as the complainant had failed to prove that the accused has committed the alleged offence. In such situation, even the Magistrate has no jurisdiction to refer the complaint under Section 156(3) of the Code for investigation and registration of the case. If that is the position, then how on the similar allegations the police can register the case under Section 156 of the Code and investigate the mater, and then come to the conclusion that from the same allegations and the same material, prima-facie a cognizable offence has been made out." 9. Learned senior counsel appearing on behalf of the petitioner also contended that even if the allegations of the FIR are taken on their face value no offence can be said to have been committed as the petitioner has not used the word SURM1 but their own registered name i.e. Kanwal Nain and SURMI is only a product name. It is also the contention of the learned senior counsel that word SURMI has been used only as a prefix and suffix in respect of product in question. in Punjabi Dictionary were word SURMI is defined as under: SURMI : An inferior ore of antimony, also zinc sulphide. 10. The contention of learned senior counsel, therefore, was that SURMI is a product manufactured by the petitioner under their brand name of Kanwal Nain and therefore, it cannot be said that the FIR discloses any triable offence. 11. Mr. B.S. Bhalla, learned counsel appearing on behalf of respondent No. 2, on the other hand, contended that SURMI is a registered name of the complainant and misuse of the said name violates the provisions of the Act and therefore, the proceedings are not liable to be quashed. It is also the contention of the learned counsel for respondent No. 2 that it is a question of evidence to see whether the offence has been committed or not and the investigation cannot be scuttled at the stage. 12. It is also the contention of the learned counsel for respondent No. 2 that it is a question of evidence to see whether the offence has been committed or not and the investigation cannot be scuttled at the stage. 12. However, on consideration of the matter, I find force in the contention raised by the learned senior counsel appearing on behalf of the petitioner SURMI is a product. If the same is branded under the brand name of KANWAL NAIN it cannot be said that any offence is committed by the petitioner as is sought to be made out in the FIR, complaint filed on the similar allegations as well as the civil suit stand already dismissed. Thus, the registration of the FIR as well as further proceedings are nothing but misuse of the process of the court. 13. This petition is accordingly allowed. The FIR and subsequent proceedings qua the petitioner are ordered to be quashed.