JUDGMENT :

RAJIV SAHAI ENDLAW, J.

Crl. M.A. No. 40263/2019 (of the defendant under Section 340 Cr.P.C.)

1. The defendant in this suit for permanent injunction to restrain infringement of trade mark and for ancillary reliefs, amidst the cross-examination of PW-1, by this application seeks preliminary enquiry into the offence allegedly committed by the plaintiffs and its Directors and calls upon this Court to send a complaint of the said offences to the Magistrate.

2. The application came up first before this Court on 15th November, 2019 when the counsel for the plaintiffs appeared on advance notice.

3. Attention of the senior counsel for the defendant/applicant was drawn to several pronouncements of the Courts including in Vishal Kapoor vs. Sonal Kapoor, 2014 SCC Online Del 4484 (DB), Punjab Tractors Ltd. vs. International Tractors Ltd. 2009 SCC Online Del 2978 and Amarsang Nathji vs. Hardik Harshadhbai Patel, (2017) 1 SCC 113, holding the application under Section 340 of the Code of Criminal Procedure, 1973 (Cr.P.C.) to be not maintainable at this stage. The senior counsel for the defendant/ applicant however on 15th November, 2019 contended that in accordance with the dicta of the Supreme Court in Iqbal Singh Marwah vs. Meenakshi Marwah, (2005) 4 SCC 370, the application lies at this stage and complaint in pursuance thereto has to be made at this stage only. The arguments remained inconclusive on 15th November, 2019 and were adjourned to today.

4. The senior counsel for the defendant/applicant has been heard further and the counsel for the plaintiffs has also been heard.

5. The senior counsel for the defendant/applicant, in response to the judgments to which his attention was drawn on 15th November, 2019, has referred to Deepika Prashar vs. Suman Singh Virk, MANU/DE/2228/2016 where, prior to final disposal of the suit, application under Section 340 of the Cr.P.C. was entertained and complaint forwarded to the Magistrate. The senior counsel for the defendant/applicant has also contended that the facts of the present case are such where a complaint needs to be made immediately. It is also argued that one of the offences committed by the plaintiffs and its Directors is under Section 209 of the Indian Penal Code, 1860 (IPC), period of making complaint with respect whereto, vide Section 468 of Cr.P.C. is of three years only and if this application is not disposed of immediately, the complaint of such offence may become barred by time. Reliance in this regard is placed on H.S. Bedi vs. National Highway Authority of India, 2016 SCC Online Del 432.

6. Per contra, the counsel for the plaintiffs, besides referring to orders passed by me holding such applications under Section 340 of the Cr.P.C. to be not maintainable at the interim stage and dismissing the same with liberty to the counsel to, at the stage of final arguments, invoke the same, has also referred to Ace Design Ltd. vs. Gaurav Sarup Sharma, 2019 SCC Online Del 8105 and Vishal Kapoor vs. Sonal Kapoor, 2014 SCC Online Del 4484 (DB).

7. In Punjab Tractors Ltd. supra also, the defendants filed an application under Section 340 of the Cr.P.C. amidst cross-examination of the witness of the plaintiff, referring to the earlier affidavits and the subsequent affidavits by way of examination-in-chief of the witness of the plaintiff and claiming that perjury had been committed therein. Relying on (i) Rewashankar Moolchand vs. Emperor AIR 1940 Nagpur 72 holding that proceedings under Section 340 Cr.P.C. should not be resorted to when the criminal case is calculated to hamper fair trial of issue in the Civil Court before which the matter would probably go on for longer and (ii) Jindal Polyster Ltd. vs. Rahul Jaura, (2005) 124 DLT 613 and Kuldeep Kapoor vs. Susanta Sengupta, (2006) 126 DLT 149 holding that applications under Section 340 of the Cr.P.C. should be dealt with at the final stage only and not at the interim stage, it was held that the law is that a prosecution for perjury should not be o