The central legal point established in the judgment is the consideration of malafide nature of proceedings, availability of remedies under the Trade Mark Act, and the registration of the trade mark in reaching the decision.

ORDER :

Siddharth, J.

1. Heard Shri V.P. Srivastava, learned Senior Advocate assisted by Shri Padmakar Pandey and Shri Sunil Kumar Srivastava, learned counsel for the applicant, learned A.G.A. for opposite party No. 1 and Shri Abhishek Tripathi, learned counsel for the opposite party No. 2

2. This application has been filed praying for quashing charge sheet dated 29.7.2018 alongwith cognizance order dated 16.8.2018 passed by the Special Chief Judicial Magistrate, Kanpur Nagar in case No. 44080 of 2018 under sections 406, 420, 504, 506, 120-B I.P.C. pending before the aforesaid court. The opposite party No. 2 lodged a First Information Report dated 11.4.2018 against the applicants alleging that there is a company M/s. Hazari Lal Laxmi Prasad Naryan (P) Limited situated in building No. 96/11A Parade, Kanpur Nagar of which Late Chunni Lal Gupta was the Managing Director. Now opposite party No. 2 and his brother, Dinesh Kumar, applicant No. 1, are Directors of the aforesaid Company. The aforesaid company purchased the business of "Kannico Dry Cleaners" in the year 1988 and the business of Dry Cleaning continued upto the year 2007. In the year 2002 applicant No. 2, who is wife of his brother, Dinesh Kumar Gupta, applicant No. 1, on account of ulterior motives started business in the same name and style of "Kannico Dry Cleaners" showing herself as its proprietor. The applicants never got any resolution passed from the company for opening new firm nor they gave any information to the Managing Director of the company, late Chunni Lal Gupta. By opening business of "Kannico Dry Cleaners" in their name, the applicants earned profit of Rs. Two crores. The wife of applicant No. 1 by showing herself proprietor of "Kannico Dry Cleaners" submitted application before the Registrar dated 26.11.2015 for the purpose of registration of Trade Mark along with applicants they submitted form TM(1) for the purpose of getting Trade Mark registered in the name of "Kannico Dry Cleaners Company and got the same registered showing business from the year 2002. Therefore they succeeded in establishing a firm parallel to company, M/s. Hazari Lal Laxmi Narayan (P) Ltd., by giving wrong information to the Trade Mark department. The applicant also threatened the opposite party No. 2 of life in case he does not refrains from inquiry against the opposite party No. 2.

3. Learned Senior Advocate appearing for the applicant has submitted that allegations in the First Information Report is that the opposite party No. 2 obtained Trade mark in the name of "Kannico Dry Cleaners" without any resolution of the board by preparing forged papers and has earned profit illegally. It has been submitted that after the death of founder of "Kannico", the father of the applicant No. 1 and opposite party No. 2, it was closed in the year 2010 on account of mismanagement and non deposit of income tax return in time. Thereafter applicant No. 2 on 23.11.2015 applied before the Registrar Trade Mark to save the brand name of "Kannico Dry Cleaners" and started business after issuance of certificate dated 3.2.2017. As yet no objection has been filed for cancellation of Trade Mark allotted to her when there is remedy under section 77 of the Trade Mark Act to this effect. Under section 57 of Trade Mark Act there is power vested in the registrar to cancel or vary the registration but in the absence of any objection by the opposite party No. 2 nothing has been done. The applicants have already instituted original suit No. 984 of 2017 against the opposite party No. 2 to restrain the defendants not to interfere in the business of the applicant by using the trade mark in the name of "Kannico Dry Cleaners". It has further been submitted that opposite party No. 2 has also instituted original suit No. 148 of 2018 against the applicant No. 1 for restraining him from illegally dispossessing defendants from the suit property and interfere in any manner in their business in building No. 96/11-A Parade, Kanpur