Advocates:
['AKASH DWIVEDI', '', 'RAJIV LOCHAN SHUKLA', 'G A']

Court No. - 49

Case :- APPLICATION U/S 482 No. - 10417 of 2021

Applicant :- Prahlad Narain Agrawal And 2 Others

Opposite Party :- State Of U.P. Another

Counsel for Applicant :- Akash Dwivedi,Rajiv Lochan Shukla

Counsel for Opposite Party :- G.A.

Hon'ble Vivek Agarwal,J.

1. Heard Sri Rajiv Lochan Shukla, learned counsel for the

applicants.

2. This application U/s 482 Cr.P.C. has been filed by the

applicants seeking quashing of the impugned order dated

06.01.2020 passed by the learned Chief Judicial Magistrate,

Farrukhabad in Case No.1010 of 2011 (Durgesh Kumar

Agarwal vs. Prahlad Narain Agarwal and Others) rejecting the

application of the applicants for discharge under Section 245 (2)

Cr.P.C.

3. Applicants have also assailed the order dated 06.04.2021

passed by learned Third Additional Sessions Judge/Special

Judge (Dacoity Affected Areas), Farrukhabad, which has

rejected Criminal Revision No.07 of 2020 (Prahlad Narain

Agarwal and 2 Others vs. State of U.P. and Another) in relation

to the proceedings pending in the court of Chief Judicial

Magistrate, Farrukhabad, under Section 63 of Copyright Act

and Sections 103, 104 and 107 of Trade Mark Act, Police

Station Kotwali Kaimganj, District Farrukhabad.

4. Learned counsel for the applicants submits that a purely civil

dispute has been converted into a criminal case. It is submitted

that none of the ingredients so to constitute an offence under

Sections 103, 104 and 107 of Trade Mark Act is made out,

therefore, this is a good case for quashing of the impugned

orders and the proceedings pending before the court below.

5. It is submitted that initially a firm in the name of M/s.

Satishchandra Prahlad Narain was registered with the Deputy

Registrar Societies and Chits, Kanpur Mandal, Kanpur on the

basis of partnership deed dated 15.03.1975 registered on

12.11.1975. With the passage of time, different partnership

deeds were registered on 15.12.1976, 02.04.1992 and

01.04.1998. This firm M/s. Satishchandra Prahlad Narain is in

the business of Tobacco. In this firm, complainant- Durgesh

Kumar Agrawal, accused-applicant no.1 Prahlad Narain

Agrawal, Virendra Kumar Agrawal and Smt. Kumud Agrawal

are partners. It is submitted that duration of the firm is as per

the will of the partners and accused-applicant no.1- Prahlad

Narain Agrawal sought partition in the partnership firm, but

when other partners kept on dilli delaying the issue, then

accused- Prahlad Narain Agrawal had moved an application for

dissolution of the firm and firm was dissolved through his

notice dated 22.10.2010. It is submitted that once firm was

dissolved, then the trade mart of the firm and the properties of

the firm got vested in all the partners under the provisions of the

Copyright Act, Trade Mark Act as well as other relevant

statutes, as a result applicant, accused no.1 became entitled to

use registered name of the brand (Kaka Chap) and packaging

and wrapper designing.

6. Learned counsel for the applicants when asked as to whether

any partnership deed has been brought on record to demonstrate

the averments made orally, then it is submitted by Sri Rajiv

Lochan Shukla that such partnership deed is not part of record.

Even the notice of dissolution of so called partnership, issued in

the year 2010 is not part of the record.

7. Sri Rajiv Lochan Shukla, learned counsel for the applicants

has placed reliance on decision of Delhi High Court in FAO

557/2016 M/s. K.C.J. & Company and Others vs. M/s. Everplus

Cosmetics India decided on 02.11.2017, wherein on being

admitted by the rival parties that both the parties are entitled to

use the trade mark 'Everest' with respect to hair dye and Kali

Mehendi or any other products for which the trade mark was

registered, disposed off the appeal regarding entitlement of both

the partners to use the trade mark 'Everest' with respect to hair

dye and Kali Mehendi as also for the goods for