The burden of proof on the accused in a prosecution for falsifying or falsely applying trademarks and the need for detailed evidence during trial to decide on disputed questions of fact.

S. R. BANNURMATH, J.

( 1 ) THIS petition is filed by accused Nos. 1 and 3 for quashing the proceedings in Crime No. 633/2002 registered by Koramangala police station and now pending enquiry before the learned additional Chief Metropolitan Magistrate Bangalore.

( 2 ) THE petitioners alongwith others have been alleged of commission of offences under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Trade marks Act) and under Section 63 of the Copyrights Act and Section 420 read with Section 34 of the Indian Penal Code. Since the allegations and the dispute as well as the offences alleged to have been committed are practically technical in nature, it is not necessary to mention the allegations, and the reply addressed by both the sides.

( 3 ) A complaint under Section 200 Cr. P. C. has been filed by M/s. Haldiram Foods International ltd. against the petitioners here in and others for the aforesaid offences, inter alia, contending that the complainant firm is engaged in the business of manufacture and sale of sweets, namkeens and ready-to-eat snacks. The firm was established at Nagpur in the year 1989. That the products manufactured by the complainant are marketed throughout India for past several decades. That the complainant has registered its trade marks 'haldiram BHUJIAWALA' with the trademarks Authority in the Trademarks No. 285062; the trademark "haldiram bhujiawala" with its logo is in continuous use in the course of trade. The trade mark registered in the name of complainant firm is used not only in India but also in USA, UK, canada, Japan, Singapore, Hong Kong, Australia and UAE, etc. That the package material of the complainant is also registered under the Copyrights Act under registration Nos. A--55087/98 to a-55104/98. That the complainant has an exclusive right to the use of the trademarks and the logo being prior adopter and user.

( 4 ) IT is alleged that the firm called as M/s SVAD has recently opened a retail outlet at No. 148, V block, 60 Ft. Rd. Koramangala, Bangalore under the trade name of 'haldiram KOLKATTA'. The petitioner No. 2 is the partner of the said firm M/s SVAD. On enquiry as the complainant came to know that the partners of the said firm in collusion with the Petitioner No. 1 herein have been using the trademark of the complainant and are applying the said trademark to the goods manufactured by them, thereby the said persons are making use of identical or deceptively similar trademark and logo without the assent of the complainant and thus have committed the offences under the Trade Marks Act and the Copyrights Act. It is also alleged that there is a longstanding dispute between the complainant firm and the accused No. 1 firm represented by one Sri Prabhushankar Agarwal pending before various courts in this regard; that the complainant has obtained an order of injunction against the petitioner No. l firm restraining it from using the trademark; that the accused having full knowledge about the legal rights of the complainant firm and the orders of the Delhi High Court in this regard, have deliberately and with mala fide intention misused the complainant's trademark and as such also have committed offences under Sections 78 and 79 of the trademarks Act as well as other infringement constituting an offence punishable under Section 63 of the Copyrights Act and under Section 420 IPC.

( 5 ) ON receipt of this complaint, the jurisdictional police have registered a case against the petitioners and another in Cr. No. 633 of 2002 and investigation has been taken up. It is the case of the petitioners that immediately after registration of the case, the concerned police have raided the shop and after removing the items found therein, practically shut down the shop which action is illegal one. As such the petitioners are forced to approach this Court by invoking the inherent jurisdiction of this Court under Section 482 Cr. P. C. , to quash the criminal proceeding

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