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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
T.V. NALAWADE, K.L. WADANE, JJ.
Shrenik Shantilal Dhadiwal - Petitioners
Versus
The State of Maharashtra & Ors. - Respondents
Criminal Application No. 1289 of 2007
Decided On : 01-08-2018
Criminal Procedure Code,1973 - section 482 - Indian Penal Code,1860 - section 34 - Trade and Merchandise Act, 1958 - section 78 and 79 - Trade and Merchandise Act, 1958 - section 78 and 79 - Punishment - First information report - First information report it appears that it is alleged that respondent is owner/proprietor of Datta Soap Industries Aurangabad- It has been manufacturing bathing soap and detergent from and manufacturing soap under trading “GEETA” from last trade mark “GEETA” is exclusively used by respondent and it is popular throughout State- It is further alleged that respondent applied for registration of Trade Mark “GETTA” before authority concerned and proceeding is pending respondent visited his distributors in Shrirampur market at that time it was informed that another soap namely “GEET” had entered in market and same is looked identical to “GETTA” soap- According to respondent goods namely “GEET” manufactured by applicant is deceptively similar with product of respondent - Therefore he lodged complaint as referred above- After registration of crime investigating officer has carried out investigation and submitted charge-sheet bearing –Held, Marks Act certain restrictions are put for taking cognizance for offence - Court shall not take cognizance of complaint except complaint in writing made by Registrar or any officer authorized him by writing- offences punishable are cognizable and police not below rank of Deputy Superintendent of Police is authorized to search and seize without warrant goods die block machine plate other instruments or things involved in committing offence- Such police officer before making any search or seizure shall obtain opinion of Registrar on facts involved in offence relating to trade mark and shall abide by opinion so obtained police or equivalent may if he is satisfied that any of offences referred to in subsection has been is being or is likely to be committed search and seize without warrant goods die block machine plate other instruments or things involved in committing offence wherever found and all articles so seized shall as soon as practicable be produced before a Judicial Magistrate of first class or Metropolitan Magistrate as case may be may within fifteen days of such seizure make an application to Judicial Magistrate of first class or Metropolitan Magistrate as case may be for such article being resorted to him and Magistrate after hearing applicant and prosecution shall make such order on application as he may deem fit papers of investigation it appears in present matter that investigation was carried by Assistant Police Inspector Local Crime Branch - Furthermore no opinion of Registrar is taken before carrying investigation- At initial stage matter requires to be examined by Registrar- Therefore investigating officer has to act upon opinion given by Registrar- Herein present case no such opinion of Registrar was taken by investigating officer nor alleged offence is investigated by officer not below rank of Deputy Superintendent of Police- So above two facts are in contravention of provisions of section and its proviso clause- So basically investigating officer was not authorized to carry investigation and due to such irregularity committed by investigating officer he was not authorized to investigate matter and file charge-sheet – Order accordingly
K.L. WADANE, J.
1. Rule. Rule made returnable forthwith. With the consent of the parties, this application is taken up for final disposal.
2. This application is filed by the applicant under the provisions of section 482 of the Code of Criminal Procedure for relief of quashing of first information report No. 97/2003 registered with Shrirampur City Police Station under section 78 and 79 of the Trade and Merchandise Marks Act and under section 420, 486 read with section 34 of the Indian Penal Code and consequent Criminal Case No. RTC No. 135/2003 pending before Judicial Magistrate First Class, Shrirampur.
3. On 07.05.2003 the respondent No. 2 herein lodged the first information report against the applicant and a firm namely Sunil Kumar @ Pappu Lakhmichand Vijandas of which the applicant is a proprietor. On the basis of the first information report lodged by the respondent No. 2 offence came to be registered, as referred above.
4. We have heard the arguments of Mr. Chatterji, learned counsel for applicant, Mrs. Choudhary, learned APP for the respondent No. 1/State and Mr. Andhale, learned counsel for respondent No. 2.
5. From the contents of the first information report it appears that it is alleged that the respondent no. 2 is owner/proprietor of Datta Soap Industries, Aurangabad. It has been manufacturing bathing soap and detergent from last 32 years and manufacturing soap under the trading “GEETA” from last 23 years. The trade mark “GEETA” is exclusively used by respondent No. 2 from 1980 and it is popular throughout the State. It is further alleged that the respondent No. 2 applied for registration of the Trade Mark “GETTA” before the authority concerned and the proceeding is pending.
6. On 04.05.2003 when the respondent No. 2 visited his distributors in Shrirampur market at that time it was informed that another soap namely “GEET” had entered in the market and same is looked identical to “GETTA” soap. According to respondent No. 2, the goods namely “GEET” manufactured by the applicant is deceptively similar with the product of the respondent No. 2. Therefore, he lodged the complaint as referred above. After registration of the crime the investigating officer has carried out the investigation and submitted the charge-sheet bearing RTC No. 135/2003.
7. Initially, it is to be noted that date of offence is 04.05.2003 and the first information report was registered on 07.05.2003. The crime was registered for the offences punishable under section 78 and 79 of the Trade and Merchandise Act, 1958. However, looking to the allegations in the first information report itself it appears that the alleged offence was committed on 04.05.2003, therefore, obviously, it is covered under the Trade Marks Act, 1999. Furthermore, by the Act of 1999 the proviso of Section 79 is omitted and looking to the proviso of Section 78 which relates to the rights conferred by registration of certification of the trade marks. However, that issue is not involved in the present matter.
8. Considering the allegations in the complaint it appears that the complaint is lodged with the accusation that the applicant has manufacturing, selling the goods i.e. soap under the brand name “GEET” which is visually and phonetically similar with the product of respondent No. 2 namely “GETTA”. Therefore, the offence falls under the provision of section 102 punishable under section 103 and under section 104 of the Trade Marks Act. Section 101 correspondence to the section 77 of the Trade and Merchandise Act, 1958. This section defines as to when a person shall be deemed to falsify a trade mark or lately apply to goods a trade mark. It will be a falsification of a trade mark if without the consent of the proprietor, a person makes a trade mark or a deceptively similar mark. It will also be falsification where a person falsifies a genuine trade mark. It may be by alteration, addition, effacement or otherwise. Under sub section (2) a person shall be deemed to falsely apply to
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