1. Comparative advertisements have become the order of the day in today’s business world due to fierce competitive market. A trader takes out advertisement stating that his product is superior to another’s product. Whether such advertisement can be characterized as defamatory in nature so as to attract section 500 of IPC. This is the question that has cropped up for consideration in this matter following the trail court directing issuance of summons to the petitioner after taking cognizance of the offence punishable under section 500 of the IPC.

2. The backdrop for the aforementioned order of the trail court in short are the following facts:

The petitioner, said to be reputed company incorporated in Japan engaged in the business of sale of battery separators for over 35 years and the respondent is also in the same business and his product is known by the name “Hi-Sep”. The respondent issued an advertisement in the Battery Directory & Year Book during November 2008 claiming that his company’s products are excellent, whereas that of the petitioner is of poor quality. Thereafter Associated Traders placed an advertisement in the Battery Directory & Year Book giving a comparative chart of various batteries and it was mentioned therein that the SPG batteries are more excellent than Hi-Sep. It is this advertisement that triggered legal notice being issued by the respondent to Associated Traders to the effect that the advertisement placed on 21.1.10, wherein the phrases used were ‘Beware and Compare’ and ‘Beware of False Claims’ and ‘Check the data before using’, were according to the respondents, amounted to disparaging the respondent’s product. Notice was therefore issued by the respondent on 10.3.10 to issue a revocation of the concerned advertisement in the following issue of the Battery Directory and Year Book along with an appropriate apology.

3. On behalf of Associated Traders which had taken advertisement as mentioned above, reply was sent to the respondent by Agarwal Associates stating that the advertisement was carried out entirely by the Associated Traders on their own without any instructions by or the knowledge of M/s. Nippon Sheet Glass co. Ltd., Japan (Petitioner company). Therefore, the question of publishing a revocation of the concerned advertisement nor an apology being tendered does not arise.

4. The petitioner also wrote to the respondent’s solicitors by way of reply to respondent’s notice that, Associated Traders had taken out an advertisement on their own without the involvement of the petitioner company.

5. After all these correspondence between the parties, the respondent lodged a private complaint u/s 200 of IPC before the trail court in P.C.R.No.19685/2010 complaining that the respondent in the complaint i.e., the petitioner herein and Associated Traders have committed the offence punishable under sections 499 and 500 of IPC and sought for issuance of notice to the respondents. Learned Magistrate of the trail court after recording the sworn statement of the complainant and taking note of the reply notice sent, ordered issuance of summons to the 2nd respondent before it for the offence punishable under section 500 of IPC. It is this order of the trial court that is called in question by the petitioner.

6. Learned senior counsel Sri. Uday Holla arguing on behalf of the petitioner company submitted that the advertisement in question was taken out by Associated Traders on their own and the petitioner company had no role to play in that and secondly, on behalf of Associated Traders, reply notice was also sent to the respondent wherein it was clearly indicated that the advertisement in question was taken out by Associated Traders on their own without the involvement of the petitioner company.

7. It is also submitted by the learned senior counsel that the advertisement in question cannot be termed as disparaging so as to attract the offence u/s 500 of IPC more so when comparative advertisements have be