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2024 DIGILAW 566 (TS)

Shree Santosh Family Dhaba v. State of Telangana

2024-08-20

K.SUJANA

body2024
ORDER : 1. This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) to quash the proceedings against the petitioner/accused No. 2 in Cr. No. 139 of 2024 before the Madhapur Police Station, Cyberabad, registered for the offences punishable under Section 420 read with Section 34 of the Indian Penal Code, 1860 (for short ‘the IPC’) and Sections 103 and 104 of the Trade Marks Act, 1999 (for short ‘TRA Act’). 2. The brief facts of the case are that the respondent No. 2/de facto complainant lodged a complaint stating that since 1995 he has been one of the partners of the restaurant named “Santosh Dhaba Exclusive” and since 2013 he possesses trademark rights for the name ‘Santosh Dhaba” vide trade mark application No. 2391012. However, he came to know that some persons are imitating, falsifying and infringing on his trade mark of “Santosh Dhaba” by using identical and similar names or using prefix and suffix in the names of the restaurant situated in Madhapur area i.e. (1) “Santosh Veg Family Dhaba” situated at H.No. 1-48/1, Metro Pillar No. C1740, Kummari basti, near Raghavendra Food Courts, beside Queens Hostel, Madhapur, Hyderabad; (2) “Shree Santosh Family Dhaba” situated at Madhura Plaza, 1st Floor, Madhapur, near State Bank of India, Madhapur, West Hyderabad; (3) “Santosh Veg Affair Dhaba” situated at Patrikanagar, Hitech City; (4) “Sri Santosh Family Dhaba” situated at Mindspace, beside Haldiram Sweets, Medicover Hospital and (5) “Santosh Family Dhaba” situated at Madhapur, beside AIG Hospital; due to which irreparable loss of goodwill and financial loss is caused to the respondent No. 2. 3. On receipt of the said complaint, the Police registered case vide Cr. No. 139 of 2024 against the petitioner, arraying him as accused No. 2 for the offences punishable under Section 420 read with Section 34 of IPC and Sections 103 and 104 of TRA Act. Aggrieved thereby, this criminal petition is filed. 4. Heard Sri G.L. Sonu, learned counsel representing Sri N. Vishal, learned counsel for petitioner/accused No. 2, Sri S. Ganesh, learned Assistant Public Prosecutor, appearing for respondent No. 1-State and Sri Abhishek Agarwal, learned counsel for respondent No. 2. 5. Aggrieved thereby, this criminal petition is filed. 4. Heard Sri G.L. Sonu, learned counsel representing Sri N. Vishal, learned counsel for petitioner/accused No. 2, Sri S. Ganesh, learned Assistant Public Prosecutor, appearing for respondent No. 1-State and Sri Abhishek Agarwal, learned counsel for respondent No. 2. 5. Learned counsel for petitioner submitted that the petitioner is falsely implicated in this case and he is a law abiding respectable citizen in the society and enjoys decent social status and stellar reputation in the business community. He contended that in the month of June, 2016 the petitioner has applied for registration with the Government of Telangana Commercial Taxes Department to obtain Value Added Tax Registration Certificate for running business in the name and style of “Shree Santosh Family Dhaba” and the authority concerned has issued the Certificate in this regard vide Certificate dated 14.06.2016. Further, the petitioner has registered the business entity “Shree Santosh Family Dhaba” in the year 2018 and obtained Certificate bearing No. SEA/RAN/ALO/BN/55709/2017 from the Labour Department of Government of Telangana under the Telangana Shops and Establishments Act, 1988 (for short ‘Act, 1988’) and also obtained license bearing No. SEA/RAN/ACL/RR/0789099 issued by the Officer, Central Zone, GHMC, Hyderabad. He asserted that the petitioner applied for trademark application and has accordingly invited the objections from the public at large regarding using the name of “Shree Santosh Family Dhaba” and the respondent No. 2 has filed objections before the Trademark Authority in Delhi and the same is pending adjudication before the competent authority in Delhi. 6. Learned counsel for the petitioner incessantly contended that the offences as alleged against the petitioner are baseless on the ground that nowhere in the complaint averments, there is any mention regarding fraudulent inducement and to deceive is to induce a man to believe that a thins is true which is false and an activity which a person practicing the deceit knows or believes to be false, and the same does not exist against the petitioner. In support of the said contention, he relied on the judgment of the Hon’ble Supreme Court in the case of Haridaya Ranjan Prasad Verma and Others vs. State of Bihar and Another, (2000) 4 SCC 168 whereunder, attention was drawn to the subject of distinction between cheating from mere breach of contract. In support of the said contention, he relied on the judgment of the Hon’ble Supreme Court in the case of Haridaya Ranjan Prasad Verma and Others vs. State of Bihar and Another, (2000) 4 SCC 168 whereunder, attention was drawn to the subject of distinction between cheating from mere breach of contract. The Hon’ble Supreme Court has observed that cheating contemplates two separate classes of acts, namely, deception by fraudulent or dishonest inducement and deception by intention but not fraudulent or dishonest inducement, whereunder, the deception by fraudulent or dishonest inducement must be shown to exist right from the beginning of the transaction. As such, learned counsel for petitioner in the case on hand, contended that it is not the case of respondent No. 2 that he was deceived by fraudulent or dishonest inducement from the beginning of the transaction. 7. In addition to the above, the learned counsel for petitioner contended that the allegations leveled against the petitioner are without any evidence and proof which could show that the petitioner has been imitating, infringing and falsifying the trade mark of respondent No. 2. He reiterated that the petitioner has not been a part of any infringement activity by using identical name or by using suffix and prefix name to the business entity of respondent No. 2 by name “Santosh Dhaba”. Therefore, while praying this Court to quash the proceedings against the petitioner, he placed reliance on the following judgments of the Hon’ble Supreme Court, which read as under: 1. Bishan Das vs. State of Punjab, (2014) 15 SCC 242 2. K. Ramakrishna vs. State of Bihar, (2000) 8 SCC 547 3. Zandu Pharmaceutical Works Limited vs. Md. Sharaful Haque, (2004) 8 SCC 31 4. State of Karnataka vs. L. Muniswamy, (1977) 2 SCC 699 5. Indian Oil Corporation vs. NEPC India Limited and Others, (2006) 6 SCC 736 6. Inder Mohan Goswami and Another vs. State of Uttaranchal and Others, (2007) 12 SCC 1 8. On the other hand, the learned counsel for respondent No. 2 submitted that the petitioner has infringed the trade mark of respondent No. 2 and alleged that the petitioner has no trade mark of his own and that he is illegally using the trade mark of respondent No. 2. On the other hand, the learned counsel for respondent No. 2 submitted that the petitioner has infringed the trade mark of respondent No. 2 and alleged that the petitioner has no trade mark of his own and that he is illegally using the trade mark of respondent No. 2. He averred that the civil dispute before the competent civil Court is pending adjudication and there exists a temporary injunction order in favour of respondent No. 2. He lamented that the matter requires investigation, as such, prayed this Court to dismiss the criminal petition as the same lacks merits. 9. Having regard to the rival submissions made and on going through the material placed on record, it is noted that the case is at the stage of investigation. Admittedly, the petitioner obtained permission from the GHMC and also applied for the trade mark of his business whereunder, objections were called for, from the public at large, accordingly, the respondent No. 2 filed his objections and this shows that even before grant of trademark to the petitioner, he had been using the same for his business. 10. At this stage, it is pertinent to mention that to quash the proceedings under Section 482 of Cr.P.C. the Court has to see whether the averments in the complaint prima facie shows that it constitute the offence against the accused persons, as alleged by the Police. That being so, it is imperative to note the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh vs. Surendra Kori, (2012) 10 SCC 155 wherein in paragraph No. 14 it is held as follows: “The High Court in exercise of its powers under Section 482 Cr.P.C. does not function as a Court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 Cr.P.C. though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 Cr.P.C. should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material.” 11. Reverting to the facts of the case on hand, it is imperative to note that though it is the specific contention of learned counsel for petitioner that when the dispute is already pending before the competent forum, initiation of criminal proceedings is illegal, it is pertinent to note that the matter is at the stage of investigation and admittedly, the petitioner had been using the trademark for his business even before the same was granted to him and under those circumstances objections were raised against the said usage and the same is pending before the competent authority, as such, it cannot be said that there are no averments to constitute the offence as alleged. Therefore, there is no force in the said contention. As there are prima facie averments made against the petitioner with regard to his trademark rights, the matter requires investigation. 12. In view of the above discussion and having regard to the law laid down by the Hon’ble Supreme Court in State of Madhya Pradesh (supra), this Court is of the opinion that the matter requires investigation and full-fledged trial and there are no merits in the criminal petition to quash the proceedings against the petitioner/accused No. 3 and the same is liable to be dismissed. 13. Accordingly, the criminal petition is dismissed. 14. Miscellaneous Applications, if any pending, shall also stand closed.