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2009 DIGILAW 200 (PNJ)

Rahul Mehta v. State of Haryana

2009-01-23

SABINA

body2009
JUDGMENT Sabina, J 1. This petition has been filed under Section 482 of the Code of Criminal Procedure for quashing FIR No. 203 dated 11.8.2004 under Sections 467/468/471/420/120-B of the Indian Penal Code (`IPC' for short) registered at Police Station City Rewari alongwith all subsequent proceedings arising therefrom including the challan report under Section 173 of the Code of Criminal Procedure. 2. Prosecution case, in brief, as stated in para 3 of the petition is as under :- "Stated that duplicate PVC Pipes are manufactured by M/s Mehta Polymers Pvt. Ltd. Kosi, U.P. upon which mark of "National" is applied and this duplicate brand is sold in Rewari city by representing the same as original brand to Vijay Jain s/o Babu Lal Jain r/o Kanod Gate, Rewari. Today, on 11.8.2004, TAA 707 No. U.P. 0 86/9577, driver whereof is Duli Chand s/o Sh. Jai Singh, s/o Sh.Jail Singh, Jat r/o Supana, P.S.Kosi U.P. is parked at the shop of Vijay Jain for unloading of PVC Pipes bearing mark "National". If you accompany us, they can be apprehended at the spot. These persons, by misleading, use the duplicate pipes as original ones and thereby indulge in cheating. The duplicate material is sold at the price of original material for their own financial benefit and they thus indulge in cheating. The pipes loaded in the above mentioned TATA vehicle are being unloaded in front of the shop of Vijay Jain. The same be apprehended at the spot and appropriate proceedings be taken up. Sd/- Sanjay, Director M/s Nirmal polyfab Pvt. Ltd. Rewari, No.122, Model Town, Rewari." 3. Learned counsel for the petitioner has submitted that while issuing notice of motion, the following order was passed by this Court on 11.4.2005 :- "Learned counsel for the petitioner submitted that the petitioner and the respondent No.2 are selling "National" PVC pipes. Learned counsel further submitted that at the instance of the respondent No.2, the petitioner is being prosecuted in an FIR registered under Sections 467, 468, 471,420 and 120-B IPC, apart from offences under Sections 103 and 104 of the Trade Marks Act, 1919. Learned counsel further submitted that at the instance of the respondent No.2, the petitioner is being prosecuted in an FIR registered under Sections 467, 468, 471,420 and 120-B IPC, apart from offences under Sections 103 and 104 of the Trade Marks Act, 1919. Learned counsel further submitted that respondent No.2 has no locus to lodge a complaint in respect of petitioner's product as his application for registration of "National" as his product's trade mark has been rejected twice and that apart, in terms of Annexure P2 ( at page 35), it has been made clear by the registering authority that word "National" is not registrable under the provisions of the Trade Marks Act. Learned counsel has referred to provisions of Section 27 of the Act, which says that "no action for infringement of any unregistered trade mark can be taken." Learned counsel has also referred to Section 107 of the Act to contend that since the complainant has misrepresented to have "National" as his trade mark, while lodging the FIR, he is liable to be prosecuted for that. Notice of motion for 1.8.2005. Further proceedings shall remain stayed till the next date of hearing." 4. In support of his submissions made above, learned counsel for the petitioner has placed reliance on B.K.Dani v. State of M.P. 2004(4) RCR (Criminal) 458 wherein it was held that to constitute an offence of infringement of copyright in a book, registration of copy right is a condition for acquiring copyright in a book. Where there is no registration, offence of infringement was not made out. Sectin 27 of the Trade Marks Act, 1999 (for short `the Act') is reproduced herein above:- "27.No action for infringement of unregistered trade mark.-(1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for the infringement of an unregistered trade mark. (2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof." Since in the present case, the application furnished by the complainant was rejected as the word "National" was not registerable, no offence of infringement is made out. The averments made by the petitioner in this regard have not been controverted by the complainant. The complainant has failed to appear despite service. The averments made by the petitioner in this regard have not been controverted by the complainant. The complainant has failed to appear despite service. Accordingly, in view of the facts mentioned above, this petition is allowed. FIR No. 203 dated 11.8.2004 under Sections 467/468/471/420/120-B IPC and Sections 103/104 Trade Marks Act registered at Police Station City, Rewari and further proceedings in consequent thereto are quashed.