Crl. Misc. No. M-9229 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl. Misc. No. M-9229 of 2009 Date of decision : 22.03.2011 Anil Kumar ......Petitioner versus State of Punjab and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. P.S. Ahluwalia, Advocate for the petitioner. Sh. Guninder Singh Brar, A.A.G., Punjab for respondent-State **** RITU BAHRI , J. (Oral) The present petition has been filed under Section 482 Cr.P.C for quashing the FIR No.315 dated 14.7.2008 registered at P.S. Kotwali, Patiala under Sections 63 and 65 of the Copy Right Act, 1957 (herein after to be referred as “the Act”) and Section 420 IPC. Respondent No. 2 visited Patiala City to conduct survey. During survey, he came to know that Anil Kumar (petitioner) son of Ratan Lal Bansal was selling fake shoes and chappals of Adidas and Reebok companies at original price, by disclosing the same to be original. Petitioner was cheating the innocent people and was causing economic and financial loss to the company as well as to the Government. He recommended that a raid should be conducted at his shop and godown, situated at House No. 5314, Rorian Mohalla, Patiala. Pursuant to registration of the F.I.R, a report under section 173 Cr.P.C was presented by the police in which the petitioner was arrayed as an accused for offences punishable under Sections Crl. Misc. No. M-9229 of 2009 -2- 63 and 65 of the Act and Section 420 IPC. Copy of the challan is Annexure P1. Mr. P.S. Ahluwalia, counsel for the petitioner has placed reliance on the judgment of this Court in 2011 (1) RCR Crl 281, 2007 (1) RCR Crl 773 and 2002 (3) RCR Crl. 273 to contend that no offence under Sections 63 and 65 of the Copy Right Act is made out. After coming into force of Trade and Merchandise Marks Act, 1958, it would be unreasonable to add Section 420 IPC for the same very allegations which are covered by aforementioned Act. Mr. G.S. Brar, AAG Punjab has argued that on the complaint made by the petitioner on 14.07.2008, statement of the complainant was recorded, in which he has stated that Anil Kumar son of Rattan Lal in his shop of Century Footwear, Dooma Wali Gali, near Gher Sodhian, Patiala is selling the fake shoes and Chappals of Adidas and Reebok company at original price. In this manner, he was cheating the innocent people and was causing economic and financial loss at large scale to their company. A raid was conducted in the godown and 288 pairs of shoes of different sizes and different colours, 100 pairs of chappal upon which forged sticker of adidas company have been affixed were found. On the inner side of the recovered shoes seal of made in China, Indonesia and Korea have been affixed. Due to this, F.I.R No.315 dated 14.7.2008 under Sections 63 and 65 of the Copy right Act, 1957 was got registered against the petitioner. During investigation, offence under Section 78/79 of Trade Mark Act was added. Challan has been presented before the trial Court on 24.09.2008. During investigation, the petitioner failed to produce any kind of bill of the stock or any authority letter from the company authorizing the petitioner to act as Crl. Misc. No. M-9229 of 2009 -3- dealer of the company. It is a clear case of cheating and the petitioner can take all the pleas before the trial Court. Heard learned counsel for the parties. Reference is being made to Section 13 of the Act which deals with the work in which copyright subsists. Section 13 of the Act reads as under:- 13. Works in which copyright subsists:- (1) Subject to the provisions of this Section and the other provisions of this Act, copyright shall subsists throughout India in the following classes of works, that is to say,- (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording. In view of Section 13 of the Act, Copy Right Act is applicable in original literary, dramatic, musical and artistic works, cinematograph films, sound recording. The provision of the Act are not applicable for the purpose of shoes and chappals Reference is being made to the judgment of this Court in M/s Bikaner Steel Mills v. State of Punjab, 2007 (1) R.C.R (Criminal) 773 wherein it was held that no offence under Sections 63 and 64 of the Copyright Act was made out as no copyright subsisted in the steel bars produced by TATA TISCON by using TMT technology. Besides, the offence under the trade and Merchandise Marks Act, was not cognizable and the police could not register an FIR and investigate the same, the F.I.R was quashed. This Court in Satpal v. State of Punjab, 2011(1) RCR (Criminal) 281 wherein the accused who was manufacturing Ayurvedic medicines similar to those manufactured by complainant was facing offence Crl. Misc. No. M-9229 of 2009 -4- under Sections 51, 52, 63 and 64 of Copy Right Act, 1957, held that no offence under the Copy Right Act was made out. This Court in Piyara Singh and others v. The State of Haryana, 2002 (3) RCR Criminal 290 (P&H),had examined the application of Trade and Merchandise Marks Act and it was held that offence under Section 78 and 79 of the Act were non-cognizable and and it could not be investigated by the police. The punishment prescribed for the aforesiad offence is 2 years, therefore, the offence is non cognizable in nature. It has been further held that after the coming into force of the Trade and Merchandise Marks Act, it would be unreasonable to add Section 420 IPC as well for the same very allegations, which were covered by the aforementioned Act. The observation of this Court in para 6 is as under:- “Obviously, the very existence of Sections 78 and 79 of the Act which is self contained Act, provides for punishment to the person committing offence under the said Act. It would be improper to use Section 420 IPC by altogether ignoring the provisions of Sections 78 and 79 of the Act. The allegations for committing offence under Section 420 IPC, in the complaint, are so vague in nature that it is mentioned in para 11 of the complaint that, “committing offences punishable under Sections 78-79 of the Trade and Merchandise Marks Act, 1958 and also under Section 420 of the Indian Penal Code.” It would also be interesting to note that the complainant did not mention any name in the complaint as an accused person and in para 8 of the complaint, he mentioned only that “the complainant has come to know that certain persons/firms/companies, whose name and addresses are not known to the complainant at this stage, are engaged in the manufacture and sale of girders under the false trade mark JDL and false trade description as to the character and origin of the said goods.” The impugned order by the trial Court was passed at the stage when it was proceeding to frame the charge under Section 420 IPC against the petitioners read with Sections 78 and 79 of the Act”. Crl. Misc. No. M-9229 of 2009 -5- Section 115 of the Trade Mark Act, 1999 postulates as under:- “115. Cognizance of certain offences and the powers of police officer for search and seizure:- (1) No Court shall take cognizance of an offence under Section 107 or Section 108 or Section 109 except on complaint in writing made by the Registrar or any officer authorized by him in writing Provided that in relation to clause (c) of subsection (1) of Section 107, a Court shall take cognizance of an offence on the basis of a certificate issued by the Registrar in respect of any goods or services in respect of which it is not in fact registered. (2) No court inferior to that of Metropolitan Magistrate or Judicial Magistrate of the first class shall try an offence under this Act. (3) The offences under Section 103 or Section 104 or Section 105 shall be cognizable. (4) Any police officer not below the rank of Deputy Superintendent of Police or equivalent, may, if he is satisfied that any of the offences referred to in subsection (3) has been, is being, or is likely to be, committed, search and seize without warrants of goods, die, block, machine, plate, other instruments or things involved in committing the offence, wherever found, and all the articles so seized shall, as sooon as practicable, be produced before a Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be; Crl. Misc. No. M-9229 of 2009 -6- Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trademark and shall abide by the opinion so obtained. (5) Any person having any interest in any article seized under sub-section (4), may, within fifteen days of such seizure, make an application to the Judicial Magistrate of the first Class or Metropolitan Magistrate, as the case may be, for such article being restored to him and the Magistrate, after hearing the applicant and the prosecution, shall make such order on the application as he may deem fit.” As per sub-clause (4) of Section 115 of the Trademarks Act, 1999, no police officer below the rank of Deputy Superintendent of Police can search and seize goods regarding offence under Sections 103, 104 and 105. Secondly, as per the proviso, the said police officer will have to obtain opinion of the Registrar on facts involved in the offence relating to Trademarks Act, 1999 and shall abide by the opinion before such search and seizure is carried out. In the present case, admittedly the search and seizure had been done by the Sub Inspector without taking any opinion from the Registrar. Hence, the proceedings are vitiated. The word “shall” in the proviso is indication of the fact that the provision is indeed mandatory. Moreover, the said offences could have only been investigated by the Officer not below the rank of Deputy Superintendent of Police. In view of the judgments of M/s Bikaner Steel Mills v. State of Punjab, 2007 (1) R.C.R (Criminal) 773, Satpal v. State of Punjab, 2011(1) RCR (Criminal) 281 and Piyara Singh and others v. The State Crl. Misc. No. M-9229 of 2009 -7- of Haryana, 2002 (3) RCR Criminal 290 (P&H), it was held that no offences under Sections 63 and 65 of the Copy Right Act, 1957 is made out. The proceedings initiated under Sections 78 and 79 of Trade Mark Act, 1999 are liable to be quashed as they were not as per Section 115 of the Trade Mark Act, 1999. The offence under Section 420 IPC is not made out, as violation, if any, are taken care of by proceeding Section 78/79 of Trade Mark Act, 1999 The parameters set out in State of Haryana and others v. Bhajan Lal and others, AIR 1992 SC 604 (1), S.Khusboo vs.Kanniamal and another, 2010 (2) RCR (Criminal) 793 and Som Mittal vs. State of Karnataka, (2008) 3 SCC 574 are applicable for quashing of the F.I.R in the present case. The power under Section 482 Cr.P.C should be exercised in the following circumstances:- (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their fact value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the F.I.R do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a magistrate as contemplated under Section 155 (2) of the Code. Crl. Misc. No. M-9229 of 2009 -8- (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. The above parameters are applicable as neither the provision of Copy Right Act are applicable in the present case nor the offence under Section 420 is made out, proceedings under Section 78/79 of the Trade Mark Act, 1999 are vitiated for non-compliance of Section 115 of Trade Mark Act, 1999 . FIR No.315 dated 14.7.2008 registered at P.S. Kotwali, Patiala, under Sections 63 and 65 of the Copy Right Act, 1957, Section 420 IPC and Section 78/79 of Trade Mark Act, 1999 (added later on) is quashed with all consequential proceedings arising therefrom qua petitioner. Accordingly, the petition stands disposed of. (RITU BAHRI) JUDGE March 22, 2011 G.Arora