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Madhya Pradesh High Court · body

2012 DIGILAW 167 (MP)

Mahesh Mishra v. Munish Gupta

2012-02-07

S.N.AGGARWAL

body2012
ORDER (Oral) 1. The only short question that arises for consideration in the present petition is whether accused person is entitled in law to lead defence evidence in a private complaint case before framing of charge against him. 2. Briefly stated the facts of the case giving rise to the above question are that the petitioner was the complainant before the trial Court and he had filed a private complaint under section 200 of Code of Criminal Procedure for offence under section 103 of Trade Marks Act, 1999 and had alleged infringement of his registered trade mark "G-5" in relation to educational institution run by him and it was alleged that respondents No.1 to 5 by using the trade mark "G-5 Gwalior" in relation to educational institution run by them have committed an offence punishable under section 103 of Trade Marks Act, 1999. After pre-summoning evidence was produced by the petitioner being the complainant, cognizance was taken by the trial Court against respondents No.1 to 5 and they were summoned for offence under section 103 of Trade Marks Act, 1999. There is a controversy between the complainant on one hand and respondent No. 1 to 5 on the other hand regarding infringement of trade mark in question. The use of trade mark "G-5" by the petitioner and "G-5 Gwalior" by respondents No.1 to 5 is not in dispute. After respondents No.1 to 5 were summoned by the trial Court after taking cognizance against them, the witnesses examined by the petitioner/ complainant in pre-summoning evidence were cross-examined on their behalf. However, respondents No.1 to 5 were aggrieved by their summoning by the trial Court and had filed a petition under section 482 of Cr.PC. for quashing of criminal proceedings on the private complaint instituted by the petitioner against them and the said petition filed by respondents No. 1 to 5 was finally disposed of by this Court to consider the following points before framing of charge: "(1) Whether, any application has been filed by the respondents and the petitioners No.3 to 5 and Mr. R.C. Jain for registration of Trade Mark "G-5" in the name of all the five persons? (2) Whether, the Trade Mark "G-5" stood granted in favour of five persons in their individual names and whether that Trade Mark cannot be used by the petitioners without complainant's prior permission or consent? R.C. Jain for registration of Trade Mark "G-5" in the name of all the five persons? (2) Whether, the Trade Mark "G-5" stood granted in favour of five persons in their individual names and whether that Trade Mark cannot be used by the petitioners without complainant's prior permission or consent? (3) Whether, any regulation was laid down at the time or registration of Trade Mark "G-5"? (4) Whether, on 12.3.2007 the petitioners No.3 to 5 applied for registration of another Trade Mark used by them being "G-5 Gwalior" in, the offence of Registrar of Trade Marks. (5) Whether, the Trade Marks "G-5" and "G-5 Gwalior" are different. First in the joint names of five persons including complainant and second in the joint names of petitioners? 3. The need for the petitioners to file the present petition arose because respondents No.1 to 5 intend to lead evidence in their defence to establish that they have not infrigned the trade mark of the petitioner/complainant as alleged by him in his complaint. Respondents No.1 to 5 have been permitted by the trial Court vide order impugned in the present petition to lead their evidence in defence on the aforementioned points, which were ordered to be considered by this Court vide its order dated 11th May 2010 in MCr.C. No. 2914/10. The said order of the trial Court permitting respondents No.1 to 5/ accused person to lead their evidence in defence before framing of charge has also been affirmed by the sessions Court in exercise of its revisional jurisdiction. It appears that respondents No.1 to 5 have been permitted to lead their defence evidence before framing of charge under some misconception misconstruing the earlier order of the High Court as if the trial Court has been directed by this Court to take evidence on the points formulated in its earlier order dated 11th May 2010 extracted herein above. 4. Shri Atul Gupta, learned counsel appearing on behalf of respondents No.1 to 5/accused persons has referred to para 21 and 22 of the judgment of the Hon’ble Supreme Court in Rukmini Narvekar v. Vijaya Satardekar and others reported as (2008) 14 SCC 1 and has contended that in terms of the judgment of the said Court, it is open to the trial Court to take defence evidence before framing of charge. This argument advanced on behalf of respondents No.1 to 5 is misplaced and is not borne out from the judgment on which reliance is placed on their behalf. What is held by the Hon’ble Supreme Court in the aforementioned judgment is that in every rare cases the defence material can be looked into by the trial Court at the time of framing of charge or taking cognizance. Firstly, the Supreme Court has said that the defence material can be looked into by the trial Court at the time of framing of charge or at the time of taking cognizance only in very rare cases and not as a matter of routine. Secondly, the observation of the Hon’ble Supreme Court that the trial Court can look into defence material in very rare cases does not mean that the trial Court as a matter of course has to give an opportunity to the accused persons to lead their evidence in defence before charge is framed against them. Giving an opportunity to the accused persons to produce documents in their possession which they may seek to rely in their defence before framing of charge is altogether different from permitting them to examine their witnesses and thereby lead evidence in their defence before charge is framed against them. The accused persons can have an opportunity to lead their evidence in defence only in the event charge is framed against them and after the complainant would close his evidence. 5. It may be noted that a perusal of the earlier order of this Court dated 11th May 2010 in MCre No. 2914/10, wherein certain directions were given to the trial Court to consider certain points before framing of charge, nowhere says that respondents No.1 to 5 were permitted to examine their witnesses in defence and it seems that directions of this Court is misconstrued by the Courts below while permitting respondents No.1 to 5 to produce their witnesses in defence. Admittedly, the charge against respondents No.1 to 5 has not so far been framed by the trial Court. After cognizance on private complaint is taken by the trial Court the trial Court is required to follow the procedure for trial as laid down in sections 244 to 247 of Code of Criminal Procedure, 1973. Admittedly, the charge against respondents No.1 to 5 has not so far been framed by the trial Court. After cognizance on private complaint is taken by the trial Court the trial Court is required to follow the procedure for trial as laid down in sections 244 to 247 of Code of Criminal Procedure, 1973. The permission given by the Courts below to respondents No.1 to 5 for leading their evidence in defence before framing of charge is legally unsustainable. In case the impugned orders of the Courts below are allowed to stand, then it will amount to travesity of justice with the complainant as procedure for trial of cases instituted otherwise on police report laid down in sections 242-247 of the Code of Criminal Procedure shall be given a complete go-bye and it would amount to evolving a different procedure for trial contrary to the one laid down in the Code. 6. In view of the foregoing, this petition is accepted. Impugned orders of the Courts below are set aside. The trial Court is directed to proceed to hear and decide on the question of charge against respondents No.1 to 5 as per law. This petition is disposed of accordingly. Sanjay Kumar Sharma for petitioner; Atul Gupta for respondents No.1 to 5; Prabal Solanki, Public Prosecutor for respondent No. 6/State.