IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.5347 of 2009 1. RUPA & COMPANY LTD. A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING IT’S REGISTERED OFFICE AND CARRYING ON BUSINESS AT METRO TOWER, 8TH FLOOR, 1, HO-CHI-MINH SARANI, KOLKATA 700 071, P.S. PARK STREET AND HAVING IT’S BRANCHES AT COIMBATORE, TIRUPUR – 841 603 AND 877, EAST PARK ROAD, KAROL BAGH, NEW DELHI – 110 005 THROUGH SHISHIR KUMAR SAHU, MANAGER OF RUPA COMPANY LIMITED 2. MR. GHANSHYAM AGARWALA, 1 METRO TOWER, 8TH FLOOR, HO-CHI-MINH SARANI, KOLKATA 3. MR. KUNJ BEHARI AGARWAL, METRO TOWER, 8TH FLOOR, HO-CHI-MINH SARANI, KOLKATA 700 071, WEST BENGAL .. PETITIONERS Versus 1. THE STATE OF BIHAR 2. SHAMBHU KUMAR, S/O LATE JAGDISH PRASAD, PROPRIETOR OF M/S SHAMBHU HOSIERY OF DR. WAZIR ALI ROAD, DHAMI TOLA, P.S. KOTWALI, DISTRICT GAYA – 823 001 (BIHAR) .. OPPOSITE PARTIES **** For the petitioners .. Mr. Yogesh Chandra Verma Sr. Adv. With Mr. Jawed Aslam, Adv. For the State .. Mr. D.P. Tiwary, A.P.P **** /5/ 03.01.2011 Heard the counsel for the parties. 2. This criminal miscellaneous petition has been filed for quashing the order, dated 30.09.2008, passed in Complaint Case No. 1692 of 2008, by which the Chief 2 Judicial Magistrate, Gaya, took cognizance under Sections 420, 468, 469, 471, 414, 329 and 120B/34 of the Penal Code. 3. The prosecution case, as alleged in the complaint petition that the complainant, proprietor of M/S Shambhu Hosiery, Gaya, has been granted the permission to use the trade name of Satrupa advertised in the Trade Marks Journal No. 1327 supplement (5), dated 31.01.2005, and it is alleged that the accused persons have been using confusingly similar name under the mark “Rupa” in Gaya and have attempting to capture the markets of “Satrupa” in the whole of State of Bihar and prayer to adjudicate who will sell in Bihar and that the Rupa products should not be permitted to be sold in the State of Bihar. 4. The learned counsel for the petitioner submits that taking the allegation on the face value of the complaint petition, itself, does not make out an offence and has relied upon an unreported decision of Gujrat High Court, reported in (1995) 1 G.L.R., 690 (Mr. Nayak Vrs. Rahul Kanubhai Aashar) where it has been held that complaint does not contain any germ of offence and 3 accordingly when there is not even the bleakest of the possibility of conviction, merely because the Court has ordered inquiry under Section 202 of the Code and not issued any process against the petitioners-accused, that by itself can not be permitted to obscure the judicial vision of this Court to quash the impugned order passed by the learned Magistrate. This Court can not be party to the mechanical orders passed under Section 202 of the Code with the consequence of impending fear of totally hopeless criminal cases over the head of the accused persons who in the instant case are the responsible bank officers who might have bona fidely exercised there duly. Under the circumstances, when the complainant does not disclose any prima facie offence, the learned Magistrate having committed a patent and obvious error in passing the order under Section 202 of the Code, the said order requires to be quashed. On the basis of this decision it is submitted that the impugned order for proceeding in enquiry on the basis of complainant is required to be quashed. 5. However, having regard to the allegation that the complainant and his business is affected by the Rupa Company and the prayer that the Rupa products should not 4 be permitted to be sold in the State of Bihar apparently neither makes out a case for an offence under Sections 420, 468, 469, 471, 414, 329 and 120B/34 of the Penal Code under which the complaint has been filed as no ingredients of these offence have been find in the complaint and allowing the enquiry to continue, itself, appears to be a futile use at the costs of time and public money and can not be allowed to continue, hence, under the facts and circumstances the complaint petition as well as the order for proceeding for the enquiry under Section 202 of the Penal Code is hereby quashed and the criminal miscellaneous petition is allowed. S.A. ( Gopal Prasad, J.)