Allahabad High Court
Kripa Jaiswal vs State Of U.P. And Another on 4 April, 2025
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved on 18.3.2025 Delivered on 04.04.2025 Neutral Citation No. - 2025:AHC:47437 Court No. - 74 Case :- APPLICATION U/S 482 No. - 33833 of 2024 Applicant :- Kripa Jaiswal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Yatharth Srivastava Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J.
1. Heard Sri Yatharth Srivastava, learned counsel for applicant and learned AGA for the State.
2. Present petition has been preferred with the prayer to quash the entire criminal proceeding of case no. 3659/2024 (State vs. Kripa Jaiswal) arising out of Case Crime no. 78/2023 under Section 420 IPC, Section 63/65 Copyright Act, 1957, Section 103, 104 Trade Mark Act, 1999, PS- Kotwali Katra, District Mirzapur along with charge sheet dated 15.08.2023 and cognizance/summoning order dated 13.06.2024 in the court of learned Chief Judicial Magistrate, Mirzapur.
3. Learned counsel for the applicant submitted that opposite party no. 2 lodged a FIR against the applicant on dated 15.04.2023 under section 420 IPC, Section 63/65 of Copyright Act, 1957, sections 103, 104 Trade Mark Act, 1999, PS- Kotwali Katra, District Mirzapur as Case Crime no. 78/2023. Facts leading to controversy are that applicant is running a small shop wherein article like plywood, black board, laminated sheets, mica sheets etc. are being validly carried out by the applicant at katra civil lines, Mirzapur. It is alleged that applicant who is engaged in manufacture/selling of the plywood namely ‘Green Leaf’ is committing an offence and violation under the Copyright Act, 1957 and the Trade Mark Act, 1999, as the first informant’s company had the legal authorization under the aforesaid Acts to manufacture and sell the plywood namely “Green Leaf”.
4. It is further submitted that after conclusion of the investigation, charge sheet has been submitted whereupon cognizance has been taken up by learned concerned Magistrate vide impugned order dated 13.06.2024 which has been challenged through the instant application.
5. Learned counsel appearing on behalf of the applicant challenged the charge sheet along with summoning order on several other grounds, inter-alia precisely on the grounds as mentioned below:-
(i) No Court shall take cognizance of an offence without prior report/certificate issued by the Registrar as mentioned under Section 115 of the Trade Marks Act, 1999.
(ii) Proceedings initiated in shape of lodging an FIR is also bared by Section 134 of the Trade Marks Act, 1999, wherein the provision of suit has been defined.
(iii) Section 55 of the Copyright Act, 1957 also provides for seeking civil remedies for infringement of Copyright.
(iv) No police officer not below the rank of Deputy Superintendent of Police or equivalent is empowered under Section 115(4) of the Trade Marks Act, 1999 to investigate the matter related to Section 114 of the Trade Marks Act, 1999.
6. Learned counsel for the applicant for substantiating arguments raised by him relied upon the case of Mihir Surendrabhai Shah Vs. State of Gujarat & 2 Others decided on 31.07.2023 in R/SCR.A/694/2014 by coordinate Bench of High Court of Gujarat at Ahemdabad, in which special attention has been sought over para nos. 10 to 15.
7. Per contra, learned AGA submitted that there is hardly any case of infringement of the rights with regard to use of name/trademark but it is the Company of the petitioner which is using name of the informant/Company i.e. ‘Greenply’ and the name which is being used by the Company of the applicant is ‘Green Leaf’ and both the logos are available at page nos. 28 and 47 respectively of the instant application.
8. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, precise grounds taken up by learned counsel for the petitioner has to be dealt one by one:
(i) By bare perusal of Section 115(1) of Trade Marks Act, 1999, it is crystal clear that no Court shall take cognizance of an offence under Section 107 or Section 108 or Section 109 except on complaint in writing made by the Registrar or any officer authorized by him in writing. In the instant matter cognizance of offence has been taken up by learned court of Chief Judicial Magistrate, Mirzapur only in pursuance to sections 103, 104 of Trade Marks Act, 1999 along with Section 420 of IPC and Section 63/65 of Copyright Act, 1957,
(ii) Learned counsel for the applicant submitted that lodging a FIR is also barred by Section 134 of Trade Marks Act, 1995 wherein the provision of suit has been defined. By bare perusal of the FIR registered at Case Crime no. 0078 of 2023, the narration available in the same is not attracting infringement of registered trade mark or relating to any right in the registered trade mark or for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff’s trade mark, whether registered or unregistered,
(iii) ground of Section 55 of Copyright Act, 1957 is also taken up by learned counsel for the applicant through which it is provided for seeking civil remedy for infringement of copyright, once there is hardly any case of infringement, Section 55 of Copyright Act does not attract.
(iv) one more ground has been taken up by learned counsel for the applicant that no police officer not below the rank of Deputy Superintendent of Police or equivalent is empowered under Section 115(4) of Trade Marks Act, 1999 to investigate the matter related to Section 114 of Trade Marks Act, 1999. The instant ground taken up by learned counsel for the applicant is little deviated from the plain reading of Section 115(4) of Trade Marks Act, 1999, wherein the officer not below the rank of Deputy Superintendent of Police or equivalent is competent to commit search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence, wherever found, and all the articles so seized shall as soon as practicable, be produced before Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be, while the investigation part is not been defined under Section 115(4) of Trade Marks Act, 1999.
9. In view of the facts and circumstances, there is hardly any case made out for seeking prayer as made through the instant application and no infirmity is available which provides scope for interference in the orders which impugned the instant application.
10. The application u/s 482 lacks merit, hence dismissed.
Order Date :- 4.4.2025
Shaswat
(Saurabh Srivastava,J.)
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