The court ruled that a trial was necessary to resolve the issues of forgery and copyright infringement as raised against the accused.

O R D E R

~ ~ ~ ~ ~ ~

The accused in CC No.10/2021 of the Court of the Chief Judicial Magistrate, Kozhikode are in revision aggrieved by the rejection of their application for discharge CMP No.1063/2021 filed under Section 239 Cr.P.C.

2. The prosecution alleged that Bhardhaman Agro Products (I) Private Limited is a corporate firm and its Marketing Promotional Manager is the informant. The Firm is marketing rice in the brand name “Rose Brand”. The accused conspired together and formed a Firm named “Bhardhaman JM Agro Products”. The accused marketed their finished rice products in packets marked as “Three Roses”, which is deceptively similar to the trade mark of the informer. The accused marketed their rice as if it is the product of Bhardhaman Agro Products (I) Private Limited.

3. When the Station House Officer submitted Final Report for offences punishable under Sections 465 , 467, 468, 420 and 120B read with Section 34 IPC and Section 63 of the Copyright Act , the accused filed CMP No.1063/2021 seeking discharge, invoking Section 239 Cr.P.C.

4. The Chief Judicial Magistrate, after examining the petitioner and hearing the parties, held that affixing a brand name deceptively similar to that of the complainant-company will induce others to purchase it believing that it is the product of the complainant-company. Whether there is any violation of the Trademark Act and whether there is violation of any artistic work inviting penal consequences under the Copyright Act are matters of trial. The Chief Judicial Magistrate held that this is not a fit case to discharge the accused persons at this stage. Consequently, the CMP for discharge was dismissed.

5. The counsel for the revision petitioners submitted that the decision of the Chief Judicial Magistrate is not correct. It is contrary to law and materially irregular. The counsel for the petitioners argued that the issue in question would in no way attract provisions of the Copyright Act . Copyright is given to a creator of literary, dramatic, musical and artistic work and a producer of cinematograph film and sound recordings. It will also apply to architectural works and computer program/software. In the case on hand, the applicability of trademark will not be attracted. The 'Three Roses' printed on the sack are not deceptively similar to the trademark of the complainant.

6. The counsel further pointed out that the revision petitioners have never created any false documents and therefore no offence of forgery will be attracted. To attract forgery, there should be creation of a document which is forged.

7. The counsel for the petitioners pointed out that initially a crime was registered under Section 104 of the Trade Marks Act and based on it, several offences related to forgery and cheating were included. When the police realised that the search and seizure conducted by them was not in accordance with the provisions of the Trade Marks Act, the police added Section 63 of the Copyright Act in the Final Report. As the foundational facts required for sustaining the alleged offences are conspicuously absent, the petitioners are entitled to discharge, contended the counsel for the petitioners.

8. The counsel for the 2nd respondent resisted the revision petition and argued that the requisite foundational facts are available in the Final Report, to sustain charges. The 2nd respondent has obtained copyright for artistic work of “Rose Brand”. The Registrar of Copyrights has issued registration number to the artistic work in question. In spite of the allegation of the petitioners that a brand name or picture is not eligible for grant of copyright under the Copyright Act , as long as the competent authority, namely Registrar of Copyrights, has given registration to the art work of the 2nd respondent, the petitioners are liable to be proceeded against for violation of copyright.

9. The counsel for the 2nd respondent urged that a false document in the ordinary meaning is not a requirement for cons