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2005(3) JLJ 375
Rakesh Saksena, J.
Colgate Palmolive (India) Ltd. and others v.
Satish Rohra and another
Miscellaneous Criminal Case No. 766 of 2002 : against the order of
Judicial Magistrate First Class, Bhopal, passed in RT No. 604
of 2000; Decided on 12.8.2005.
Being prompted and induced by the advertisements made by the Company in various newspapers and Television to the effect that by the use of aforesaid Colgate Dental Cream his teeth will remain healthy, he purchased one 50 grams carton of Colgate Toothpaste from Darvesh Medical Store, Bhopal, on 1.2.1999, which he had been using from the past also. He made allegation in the complaint that the aforesaid toothpaste was not being manufactured In the manner It was being advertised and the petitioners were deceiving their customers. According to him, the carton of the toothpaste bears the statement that it stops ‘bad breath‘ and ‘fights tooth decay‘ and that the product is a ‘non-fluoridated foaming toothpaste‘, whereas it is a... well known scientific fact that among all the inorganic ingredients of toothpaste, the only substance ‘that may playa role in fighting tooth decay, prevention of cavities is fluoride. ....Complainant claimed that the aforesaid description was false and misleading and the said false trade description had been deliberately applied with common intent to increase sales of the toothpaste. He averred that all the accused were financially benefiting from the sale of these illicit products. Thus, the non-petitioner-complainant prayed that .the petitioners be punished for the commission of offences under the provisions of sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 and under section 420 of the Indian Penal Code.
Learned Magistrate after recording the statement of complainant under section 200 of CrPC and that of A W 2 Jawahar Tahalramani and A W 3 Rajkumar Goswami under section 202 of CrPC, registered the complaint and taking cognizance against the petitioners under the aforesaid offences, issued process for their appearance. Aggrieved by the aforesaid order of taking cognizance, petitioners have approached this Court for quashing the complaint as well as the order taking cognizance against them. [Paras 2 to 4
Held: On examining the averments made by the complainant in the complaint, it is found that he had purchased the Colgate Toothpaste just on 1.2.1999 and had filed the impugned complaint on the very next day, i.e, on 2.2.1999. The petitioners had manifestly not proclaimed it to be a wonder-drug working out a miracle by curing the malady just by touching the teeth or by its once or twice application. So on the face of it the accusation appears to be ill-conceived and mala fide.
There is also a vague and obscure allegation in the complaint that in the past as well the complainant had used the paste with no beneficial results. He does not allege to have made any complaint at the time or lodged any report with the police on the occasion. Besides, there is neither allegation nor evidence as to what was the condition of his teeth and also as to how long, and whether regularly, he had used the said paste. There is also no expert evidence tendered by him to show that the composition of the paste did not and could not check bad breath and combat teeth decay. As regards effective results, the impugned advertisements are not alleged to prescribe any time limit nor does the complainant say that he used the paste to such a limit and still did not achieve the beneficent effect And as respects his witnesses, viz., A W 2 Jawahar Tahalramani and A W 3 Rajkumar Goswami, they have not stated that their teeth had bad smell and were decaying and that they had not obtained the desired relief by using the paste themselves. It is though another point, rather vital, though no rigid time limit for obtaining decisive results could possibly be laid down which would necessarily vary with each individual according to decaying state of his teeth and bad smell. In this view of the matter, it does not appear to be prima facie made out that by the alleged impugned advertisement the complainant had been fraudulently or dishonestly induced to deliver any property (purchase-price) to petitioners. On careful reading of the allegations made in the complaint and the evidence adduced by the complainant, I am of the opinion that prima facie no facts constituting the offence under section 420 of IPC are made out [Paras 7 & 8
It can be said that the advertiser is permitted to indulge in some amount of exaggeration or hyperbole. Such type of advertisement shall neither amount to be a warranty nor a false trade description. (1999) 7 SCC followed. [Para 10
(2) Criminal P.C., 1973--Ss. 203, 204 and 241--preliminary stage of dismissal of complaint, issuance of process against accused or framing of charge,--only averments and evidence of complainant to be considered--material or documents submitted by accused--not to be relied on at all. AIR 1976 SC 1947 followed. [Paras 5 & 6
¼1½ naM lafgrk] 1973& &/kkjk 482] 200] 202 rFkk 203&naM lafgrk] 1860&/kkjk 420&Okikj vkSj i.; oLrq fpà vf/kfu;e] 1958&/kkjk 78] 79 rFkk 2¼4½&ifjoknh us nar eatu 1-2-1999 dks Ø; fd;k vkSj nwljs gh fnu mlds nks"k crkrs gq, ifjokn Qkby fd;k&foKkiu esa dqN ek=k rd vfr‘k;ksfDr dh tkuk vuqKkr gS&,slk djuk okjaVh ;k feF;k i.; fooj.k nsus dh dksfV esa ugha vkrk&fof/k dh çfØ;k dk nq#i;ksx ek= gksus ds dkj.k ifjokn vfHk[kafMr fd, tkus ;ksX;A daiuh }kjk fofHkUu lekpkji=ksa vkSj Vsyhfotu esa bl vk‘k; ds foKkiuksa ls fd iwoksZDr dksYxsV MsaVy Øhe ds mi;ksx ls mlds nk¡r LoLFk jgsaxs] çsfjr vkSj mRçsfjr gksdj ifjoknh us 1-2-1999 dks nosZ‘k esfMdy LVksj] Hkksiky ls dksYxsV nar eatu dk ,d 50 xzke dk dkVZu Ø; ftldk og igys ls Hkh mi;ksx dj jgk FkkA mlus ifjokn esa vfHkdFku fd;k fd iwoksZDr nar eatu ml jhfr ls fufeZr ugha fd;k tk jgk gS ftl çdkj mldk foKkiu fd;k tk jgk gS] rFkk ;kphx.k vius xzkgdksa ds lkFk çoapuk dj jgs gSaA mlds vuqlkj] nar eatu ds dkVZu ij ;g dFku gS fd mlls ^^lk¡lksa dh nqx±/k** #drh gS vkSj og ^^nk¡rksa dh lM+u ls yM+rk** gS rFkk ;g fd ;g mRikn ^^xSj&yksjkbMqDr >kxokyk nar eatu** gS] tcfd ;g lqfofnr oSKkfud rF; gS fd nar eatu ds leLr vtSo la?kVdksa esa ls ,dek= rRo ftldh] nk¡rksa dh lM+u ls yM+us] nar{k; dk fuokj.k djus esa Hkwfedk gks ldrh gS og gS yksjkbMA---ifjoknh us nkok fd;k fd iwoksZDr fooj.k feF;k vkSj Hkqykok nsus okyk gS rFkk mDr feF;k i.; fooj.k nar eatu dh fcØh c<+kus ds lkekU; vk‘k; ls tkucw> dj fn;k x;k FkkA mlus çdFku fd;k fd lHkh vfHk;qDr bu vk;qDr mRiknksa ds foØ; ls foÙkh; Qk;nk mBk jgs gSaA vr%] v;kph&ifjoknh us çkFkZuk dh fd ;kphx.k dks O;kikj vkSj i.; oLrq fpà vf/kfu;e] 1958 dh /kkjk 78 ,oa 79 ds mica/kksa ds v/khu rFkk Hkkjrh; naM lafgrk dh /kkjk 420 ds v/khu fd, x, vijk/kksa ds fy, nafMr fd;k tk,A fo}ku eftLVªsV us naM lafgrk dh /kkjk 200 ds v/khu ifjoknh dk dFku rFkk naM çfØ;k lafgrk dh /kkjk 202 ds v/khu v lk 2 tokgj rgyjekuh vkSj v lk 3 jktdqekj xksLokeh ds dFku vfHkfyf[kr djus ds i‘pkr~ ifjokn jftLVªhÑr fd;k rFkk ;kphx.k ds fo#) iwoksZDr dk laKku djrs gq, mudh milatkfr ds fy, vknsf‘kdk tkjh dhA laKku djus ds iwoksZDr vkns‘k ls O;fFkr ;kphx.k ifjokn ds lkFk&lkFk muds fo#) laKku dk vknZ‘k vfHk[kafMr fd, tkus ds fy, bl U;k;ky; ds le{k vk, gSaA ¼iSjk 2 ls 4½ vfHkfu/kkZfjr % ifjoknh }kjk ifjokn esa fd, x, çdFkuksa dh iM+rky djus ij ik;k x;k fd mlus dksYxsV nar eatu 1-2-1999 dks gh Ø; fd;k Fkk rFkk mlus nwljs gh fnu vFkkZr~ 2-2-1999 dks vkf{kIr ifjokn Qkby dj fn;k FkkA çdVr% ;kphx.k us mlds vn~Hkqr vks"kf/k gksus dh mn~?kks"k.kk ugha dh Fkh ftlls nk¡r Nwus ek= ls vFkok ,d ;k nks ckj yxkus ls chekjh ds mipkj dk peRdkj gksA vr% ns[kus ls gh çrhr gksrk gS fd vfHk;ksx dh ladYiuk xyr gS vkSj og vln~Hkkfod gSA ifjokn esa ;g vfuf‘pr vkSj vLi"V vfHkdFku Hkh gS fd igys Hkh ifjoknh us eatu dk mi;ksx fd;k Fkk ftldk dksbZ Qk;nkçn ifj.kke ugha fudyk FkkA mlus ml le; dksbZ f‘kdk;r djus ;k ml volj ij iqfyl esa fjiksVZ nkf[ky djus dk vfHkdFku ugha fd;k gSA blds vfrfjDr] bl ckjs esa u vfHkdFku gS] u lk{; gh fd mlds nk¡rksa dh D;k voLFkk Fkh rFkk ;g fd mlus fdrus fnu rd vkSj D;k fu;fer :i ls mDr nar eatu dk mi;ksx fd;kA ;g n‘kkZus ds fy, fd eatu ds lfEeJ.k ls lk¡lksa dh nqx±/k vkSj nar{k; ugha #ds ;k ugha #d ldrs Fks] mlds }kjk fdlh Hkh fo‘ks"kK dk lk{; is‘k ugha fd;k x;k gSA tgk¡ rd çHkkoh ifj.kkeksa dk laca/k gS] vkf{kIr foKkiuksa esa dksbZ le;&lhek fofgr gksus dk vfHkdFku ugha gSa] u ifjoknh us ;g gh dgk gS fd mlus ,slh lhek rd eatu dk mi;ksx fd;k vkSj fQj Hkh midkjh çHkko ugha iM+kA rFkk tgk¡ rd mlds lkf{k;ksa vFkkZr~ v lk 2 tokgj rgyjekuh vkSj v lk 3 jktdqekj xksLokeh dk laca/k gS] mUgksaus ;g ugha dgk gS fd mudh lk¡lksa esa nqx±/k Fkh rFkk muds nk¡rksa dk {k; gks jgk Fkk rFkk ;g fd mUgsa Lo;a bl eatu dk mi;ksx dj okafNr jkgr çkIr ugha gqbZA ;g ;|fi ,d vU; ckr gS] tks dkQh egRoiw.kZ gS] fd fu‘pk;d ifj.kke ikus ds fy, dksbZ lqfuf‘pr le;&lhek vf/kdfFkr djuk laHko ugha gS] og vko‘;d :i ls çR;sd O;fDr ds fy, mlds nk¡rksa ds {k; vkSj lk¡lksa dh nqx±/k dh voLFkk ds vuqlkj vyx&vyx gksxhA bl n`f"V ls çFken`"V;k ;g ekeyk fl) çrhr ugha gksrk fd vfHkdfFkr vkf{kIr foKkiu }kjk ifjoknh dks diV ls ;k csbZekuh ls ;kphx.k dks dksbZ laifÙk ¼Ø;&dher½ ifjnÙk djus ds fy, mRçsfjr fd;k x;kA ifjokn esa fd, x, vfHkdFkuksa vkSj ifjoknh }kjk is‘k fd, x, lk{; dk lko/kkuhiwoZd foospu djus ij esjh jk; gS fd çFken`"V;k naM lafgrk dh /kkjk 420 ds v/khu vijk/k xfBr djus okys dksbZ Hkh rF; fl) ugha gq, gSaA ¼iSjk 7 ,oa 8½ dgk tk ldrk gS fd foKkiudÙkkZ dqN ek=k rd vfr‘k;ksfDr ;k vR;qfDr dj ldrk gSA bl çdkj dk foKkiu u okjaVh dh dksfV esa vk,xk] u feF;k i.; fooj.k dhA ¼1999½ 7 ,l lh lh 1 vuqlfjrA ¼iSjk 10½ ¼2½ naM çfØ;k lafgrk] 1973& &/kkjk 203] 204 rFkk 241&ifjokn dh [kkfjth] vfHk;qDr ds fo#) vknsf‘kdk tkjh fd, ;k vkjksi dh fojpuk dk çkjafHkd çØe&dsoy ifjoknh ds çdFkuksa vkSj lk{; ij fopkj fd;k tkuk gksrk gS&vfHkqDr }kjk is‘k dh xbZ lkexzh ;k nLrkost&fcYdqy Hkh voyac ugha fy;k tk ldrkA , vkb vkj 1976 ,l lh 1947 vuqlfjrA ¼iSjk 5 ,oa 6½
1. Petitioners have filed this petition under section 482 of the Code of Criminal Procedure for quashing the criminal proceedings of the Criminal Complaint R.T. No, 604 of 2000 pending in the Court of Judicial Magistrate First Class, Bhopal, and for quashing the order dated 25.11.1999 passed by the aforesaid Court, taking cognizance of offences punishable under section 420 of the Indian Penal Code and sections 78 and 79 of the Trade and Merchandise Marks Act, 1958.
2. Complainant Satish Rohra, a resident of Idgah Hills, Bhopal, filed a complaint against the petitioner Company, its officers and Directors contending that the petitioner Company is the manufacturer of Colgate Dental Cream. Being prompted and induced by the advertisements made by the Company in various newspapers and television to the effect that by the use of aforesaid Colgate Dental Cream his teeth will remain healthy, he purchased one 50 grams carton of Colgate Toothpaste from Darvesh Medical Store, Bhopal, on 1.2.1999, which he had been using from the past also. He made allegation in the complaint that the aforesaid toothpaste was not being manufactured in the manner it was being advertised and the petitioners were deceiving their customers. According to him, the carton of the toothpaste bears the statement that it stops "bad breath" and "fights tooth decay" and that the product is a "non-fluoridated foaming toothpaste", whereas it is a well known scientific fact that among all the inorganic ingredients of toothpaste, the only substance that may playa role in fighting tooth decay, prevention of cavities is fluoride. At any rate, the Colgate Dental Cream does not contain such ingredients which are either connected with stopping bad breath or fighting tooth decay. According to him, the aforesaid descriptions were pertaining to standard of quality and the accused-petitioners wrongly claimed their product to behave in a manner in which it was incapable of performing. The statement mentioned on the carton was repeated in advertisements in the newspapers, magazines and television media, creating an impression in the minds of consumers that the aforesaid toothpaste was capable of stopping bad breath and preventing tooth decay. Complainant claimed that the aforesaid description was false and misleading and the said false trade description had been deliberately applied with common intent to increase sales of the toothpaste. He averred that all the accused were financially benefiting from the sale of these illicit products. Thus, the non-petitioner-complainant prayed that the petitioners be punished for the commission of offences under the provisions of sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 and under section 420 of the Indian Penal Code.
3. Learned Magistrate, after recording the statement of complainant under section 200 of CrPC and that of A W 2 Jawahar Tahalramani and A W 3 Rajkumar Goswami under section 202 of CrPC, registered the complaint and taking cogniiance against the petitioners under the aforesaid offences, issued process for their appearance.
4. Aggrieved by the aforesaid order of taking cognizance, petitioners have approached this Court for quashing the complaint as well as the order taking cognizance against them. Learned counsel for the petitioners has submitted that the complainant is a pseudo or proxy complainant and that he has filed the present complaint at the behest and instigation of some trade rival. He has submitted that large number of frivolous identical complaints had been filed in various parts of the country malafidely just to malign the reputation of the petitioner No.1 Company. He has referred to the copies of various complaints, which were filed before the Magistrate First Class, Belgaum, C.J.M. Wardha, Judicial Magistrate First Class, Nagpur, and Sangamner. He has submitted that on the face of it the aforesaid complaint appears to be false and frivolous. The respondent No.1 is alleged to have purchased a tooth
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