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2019 DIGILAW 40 (ALL)

Dinesh Kumar Gupta v. State of U. P.

2019-01-04

SIDDHARTH

body2019
ORDER : Siddharth, J. 1. Heard Shri V.P. Srivastava, learned Senior Advocate assisted by Shri Padmakar Pandey and Shri Sunil Kumar Srivastava, learned counsel for the applicant, learned A.G.A. for opposite party No. 1 and Shri Abhishek Tripathi, learned counsel for the opposite party No. 2 2. This application has been filed praying for quashing charge sheet dated 29.7.2018 alongwith cognizance order dated 16.8.2018 passed by the Special Chief Judicial Magistrate, Kanpur Nagar in case No. 44080 of 2018 under sections 406, 420, 504, 506, 120-B I.P.C. pending before the aforesaid court. The opposite party No. 2 lodged a First Information Report dated 11.4.2018 against the applicants alleging that there is a company M/s. Hazari Lal Laxmi Prasad Naryan (P) Limited situated in building No. 96/11A Parade, Kanpur Nagar of which Late Chunni Lal Gupta was the Managing Director. Now opposite party No. 2 and his brother, Dinesh Kumar, applicant No. 1, are Directors of the aforesaid Company. The aforesaid company purchased the business of "Kannico Dry Cleaners" in the year 1988 and the business of Dry Cleaning continued upto the year 2007. In the year 2002 applicant No. 2, who is wife of his brother, Dinesh Kumar Gupta, applicant No. 1, on account of ulterior motives started business in the same name and style of "Kannico Dry Cleaners" showing herself as its proprietor. The applicants never got any resolution passed from the company for opening new firm nor they gave any information to the Managing Director of the company, late Chunni Lal Gupta. By opening business of "Kannico Dry Cleaners" in their name, the applicants earned profit of Rs. Two crores. The wife of applicant No. 1 by showing herself proprietor of "Kannico Dry Cleaners" submitted application before the Registrar dated 26.11.2015 for the purpose of registration of Trade Mark along with applicants they submitted form TM(1) for the purpose of getting Trade Mark registered in the name of "Kannico Dry Cleaners Company and got the same registered showing business from the year 2002. Therefore they succeeded in establishing a firm parallel to company, M/s. Hazari Lal Laxmi Narayan (P) Ltd., by giving wrong information to the Trade Mark department. The applicant also threatened the opposite party No. 2 of life in case he does not refrains from inquiry against the opposite party No. 2. 3. Therefore they succeeded in establishing a firm parallel to company, M/s. Hazari Lal Laxmi Narayan (P) Ltd., by giving wrong information to the Trade Mark department. The applicant also threatened the opposite party No. 2 of life in case he does not refrains from inquiry against the opposite party No. 2. 3. Learned Senior Advocate appearing for the applicant has submitted that allegations in the First Information Report is that the opposite party No. 2 obtained Trade mark in the name of "Kannico Dry Cleaners" without any resolution of the board by preparing forged papers and has earned profit illegally. It has been submitted that after the death of founder of "Kannico", the father of the applicant No. 1 and opposite party No. 2, it was closed in the year 2010 on account of mismanagement and non deposit of income tax return in time. Thereafter applicant No. 2 on 23.11.2015 applied before the Registrar Trade Mark to save the brand name of "Kannico Dry Cleaners" and started business after issuance of certificate dated 3.2.2017. As yet no objection has been filed for cancellation of Trade Mark allotted to her when there is remedy under section 77 of the Trade Mark Act to this effect. Under section 57 of Trade Mark Act there is power vested in the registrar to cancel or vary the registration but in the absence of any objection by the opposite party No. 2 nothing has been done. The applicants have already instituted original suit No. 984 of 2017 against the opposite party No. 2 to restrain the defendants not to interfere in the business of the applicant by using the trade mark in the name of "Kannico Dry Cleaners". It has further been submitted that opposite party No. 2 has also instituted original suit No. 148 of 2018 against the applicant No. 1 for restraining him from illegally dispossessing defendants from the suit property and interfere in any manner in their business in building No. 96/11-A Parade, Kanpur Nagar. 4. It has further been submitted that opposite party No. 2 has also instituted original suit No. 148 of 2018 against the applicant No. 1 for restraining him from illegally dispossessing defendants from the suit property and interfere in any manner in their business in building No. 96/11-A Parade, Kanpur Nagar. 4. Learned counsel for the applicants has submitted that First Information Report has been lodged by way of counter blast to the proceedings of original suit No. 984 of 2017 instituted by applicant No. 2 against the opposite party No. 2 and his son Asim Gupta in September 2017 by way of First Information Report dated 11.4.2018 when the civil suit No. 148 of 2018 was also instituted by the opposite party No. 2 on 9.2.2018 regarding the same relief prior to lodging of the First Information Report dated 11.4.2018. It has been submitted that criminal proceedings are false and fictitious and clearly by way of counter blast. He has relied upon paragraph 102 of the judgment of the Apex court in State of Haryana Vs. Bhajan Lal and others reported in 1992 Suppl.(1) SCC 335, wherein in sub-paragraph 7 it has been mentioned that when proceedings are malafide or malicious, instituted with ulterior motive of wreaking vengeance on the accused and with a view to spite him due to private and personnel grudge, proceedings can be quashed. 5. In the present case the First Information Report has been lodged after resort to proceeding before the civil court by both the parties therefore it deserves to be quashed. 6. Learned counsel for the opposite party No. 2 has submitted that wife of the applicant No. 1, applicant No. 2, has represented herself as sole proprietor of "Kannico Dry Cleaners" and got registered trade mark logo transferred in his personal name when the same belongs to the company M/s. Hazari Lal Laxmi Narayan Private Limited. 7. Learned counsel for the opposite party No. 2 has relied upon the judgment in support of his contention, M. Krishna Vs. Vijay Singh, 2001 Law Suit (S.C.) 1352, and submitted that the High Court should not hasten to quash criminal proceedings merely because respondents had filed a civil suit with respect to some documents which documents used in criminal proceedings. Kamala Devi Agarwal Vs. Vijay Singh, 2001 Law Suit (S.C.) 1352, and submitted that the High Court should not hasten to quash criminal proceedings merely because respondents had filed a civil suit with respect to some documents which documents used in criminal proceedings. Kamala Devi Agarwal Vs. State of West Bengal, 2001, Law Suit (S.C.) 1391, and submitted that criminal cases have to proceeded in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. Guru Granth Saheb Sthan Meerghat Varanasi Vs. Ved Prakash and others, 2013 Law Suit (S.C.) 380 and submitted that the civil and criminal case pending between the parties have different effect. Rajdeo Gupta Vs. State of U.P., 2006 Law Suit (All) 1679 that criminal proceedings cannot be quashed only because of civil suit with respect to same property is pending. Ravinder Singh Vs. State of U.P. and another, 2007 Law Suit (ALL) 2339, and submitted that the disputed question of fact cannot be decided under section 482 Cr.P.C. and further submitted that factual aspect of the case can be decided by the trial court on the basis of evidence that may be produced by the parties. Indian Oil Corporation Vs. N.E.P.C. India Ltd. and others, 2006 (6) (SCC) 736 and submitted that nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract for which a civil remedy is available has been availed is not by itself a ground to quash the criminal proceedings. Anoop Gulati Vs. State of U.P. and others, 2012 Law Suit (ALL) 2469 and submitted that criminal proceedings cannot be dropped only because the civil proceedings is pending between the parties. Tapas Adhikari and another Vs. State of U.P. and another, 2009 Volume 5 (A.D.J.) 649 that the criminal proceedings may not be quashed in case such proceedings are barred by law or the fabrics of the proceedings is parallel of the civil in nature for constituting any offence. Its remedy available in civil or revenue courts but on the basis of allegation prima facie, any criminal offence is made out the same may not be quashed only on the ground that civil proceedings are pending. Its remedy available in civil or revenue courts but on the basis of allegation prima facie, any criminal offence is made out the same may not be quashed only on the ground that civil proceedings are pending. Khurram Siddiqui vs. State of U.P. 2010, Volume 9 (A.D.J.) 599 and submitted that it is well settled law that a civil as well as criminal proceeding in regard to same act may be launched and continued simultaneously. If certain acts constitute an offence, the criminal proceedings cannot be held up or kept in abeyance till the finalization of civil proceeding. The applicants have got injunction in their favour from civil court. The pendency of civil suit regarding same subject matter will not come in the way of criminal proceedings since it is clear that applicants have given false information to the Trade Mark Authority and acquired undue benefits. 8. After considering the rival submissions it appears that M/s. Hazari Lal Laxmi Narayan, Private Limited purchased a shop in the name of "Kannico Dry Cleaners" in the year 1988 and in the year 2002 as per own case of the informant, applicant No. 1 started business showing his wife, applicant No. 2 as proprietor and registration of the trade mark in the name of "Kannico Dry Cleaners" was applied on 26.11.2015. Therefore it is clear that informant has been aware of the use of name of "Kannico Dry Cleaners" by the applicant No. 2 since the year 2002 as per his own statement recorded by the Investigating Officer but he never had any grievance against the applicants. In September 2017 when the suit was instituted before the civil court praying for decree of injunction against the opposite party No. 2 and his son from interfering in her business by applicant No. 2, as counter blast proceeding, original suit No. 148 of 2018 was instituted by the opposite party No. 2 in February 2018 before the civil court praying for same relief of decree of injunction from interfering in his business against the applicants and not satisfied with the aforesaid suit he lodged First Information Report dated 11.4.2018 allegations whereof were investigated by the Investigating Officer and charge sheet has been submitted. As per judgment of Apex court in State of Haryana Vs. Bhanjan Lal (supra) the proceedings are clearly malafide and prompted by personal vendetta. As per judgment of Apex court in State of Haryana Vs. Bhanjan Lal (supra) the proceedings are clearly malafide and prompted by personal vendetta. The remedy of cancellation of certificate of registration available under the Trade Mark Act has not been availed by the opposite party No. 2. The registration of trade mark is not in the name of "Kannico Dry Cleaners" but only "Kannico". Therefore charge sheet under sections 406, 420, 120-B I.P.C. along with cognizance order under the aforesaid section is hereby quashed. However allegations under sections 504. 506 I.P.C. have been found to be true by the Investigating Officer against the applicant No. 1 only. The charge sheet and cognizance order regarding allegation under sections 504 and 506 I.P.C. is sustained only regarding applicant No. 1. There is no allegation of such offence having been committed by the applicant No. 2 in the First Information Report and in the statement of the informant. The applicant No. 1 is at liberty to obtain bail as per Judgment of this Court in Brahm Singh and others Vs. State of U.P. and others passed in Criminal Misc. Writ Petition No. 15609 of 2016. 9. The application is partly allowed.