Bhagwati Prasad Kedia and Others vs State of U.P. and Another

G.P. Mathur, J.—This petition u/s 482, Code of Criminal Procedure has been filed for quashing the proceedings of Criminal Case No. 501 of 1983 pending in the Court of Munsif Magistrate 1st Class, Deoria.

Office has submitted a report that notice was sent to Rudmal Gupta-Respondent No. 2. The petition was admitted and further proceedings in the trial were stayed on 8.5.1985. However, neither anyone has put in appearance on behalf of Respondent No. 2 nor any counter-affidavit has been filed. The petition has therefore, to be decided on the footing that the averments made in the petition are correct.

Rudmal Gupta filed a criminal complaint in the Court of Munsif Magistrate 1st Class, Deoria, alleging that he was a salesman of the Century Spinning and Manufacturing Ltd., Bombay (hereinafter referred to as the company). The company carries on business of manufacturing cloth and had three registered trade marks which were bearing Registration No. 263595, 263596 and B. 57132. The trade mark constitutes of a logo showing a man in kneeling position with a globe above his shoulders, on which the word �CENTURY� is written. The company used trade mark �CENTURY� and �man and a globe� on all the textile goods manufactured by it and had spent substantial amount in advertisement of the aforesaid trade marks. The company came to know that the accused were selling poplin cloth of inferior quality which contain the trade mark of �CENTURY� and �man and globe� which is owned by it. The complainant purchased poplin cloth from the shop of the accused on 6.10.1983 and a cash memo bearing No. 4382 was issued by the accused. The poplin cloth sold by the accused had not been manufactured by the company but the word �CENTURY� and the logo �man and globe� had been printed over the same. By the aforesaid act, the accused had committed offence under Sections 78 and 79 of the Trade and Merchandise Marks Act. In the complaint, the following were arrayed as accused :

M/s. Associated Textiles, Malaviya Road, Deoria.

Unknown persons.

The statement of Rudmal Gupta was recorded u/s 200, Code of Criminal Procedure wherein he stated that when he bought poplin cloth from the firm M/s. Associated Textiles, Malaviya Road, Deoria, its salesman Vishwanath was present. He did not mention the name of any other person as accused in his statement.

The learned Magistrate took cognizance of the offence and directed that process be issued against the accused for their prosecution under Sections 78 and 79 of the Trade and Merchandise Marks Act. On 21.11.1983, the complainant filed process fee for summoning only one person as accused, namely, Vishwanath Prasad, Sales Representative of firm M/s. Associated Textiles. On 16.4.1984 the learned Magistrate passed an order directing the complainant to give the names and address of the proprietor of M/s. Associated Textiles. Thereafter on 26.3.1985 the complainant moved an application praying that three accused whose names have been mentioned in the application be summoned by issuing non-bailable warrants against them. In the application, the accused were described as follows :

Bhagwati Prasad Kedia son of Sri Mahabir Prasad Kedia.

Kailash Pati Kedia son of Sri Mahabir Prasad Kedia.

Ratan Kumar Kedia son of Mohan Lal Kedia.

All of firm M/s. Associated Textiles, Malaviya Road, P.S. Kotwali, Deoria.

The learned Magistrate thereafter issued warrants against the aforesaid three accused to face trial along with Vishwanath. It is averred in para 13 of the affidavit that the applicant No. 1 Bhagwati Prasad Kedia is the Director of a company known as Chattish Garh Distilleries (M.P.) and is living in Indore. The applicant No. 2 Ratan Kumar Kedia is carrying on business of molasses under the name and style of �Associated Trading Company� at Calcutta. The applicant No. 3 Kailash Pati Kedia is carrying on business of leather in the name and style of M/s. Mahabir Leather Board at Durg, M.P. It is further averred that all the three persons are not connected with the firm M/s. Associated Textiles, Malaviya Road, Deoria. As stated earlier, no counter-affidavit has been filed by the complainant-Respondent No. 2 to controvert the aforesaid averment made in the affidavit. In the complaint, the names of all three persons have not at all been mentioned. In his statement u/s 200, Code of Criminal Procedure , the complainant mentioned the name of only one person, namely, Vishwanath and stated that he was the salesman of M/s. Associated Textiles which was described as accused No. 1 in the complaint. In view of the aforesaid facts, there is no justification for summoning the applicants to face trial.

There is Anr. aspect of the matter which deserves consideration. Section 88 of the Trade and Merchandise Marks Act provides that if the person committing offence under the Act is a company, the company as well as every person incharge and responsible to the company for the conduct of its business at the time of commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Explanation (a) to this section provides that company means any body corporate and includes a firm or other association of individuals. This section is identical to Section 10 of Essential Commodities Act. In Sham Sunder and Others Vs. State of Haryana, , the Apex Court while considering the scope and ambit of Section 10 of E.C. Act observed as follows :

...The requisite condition is that the partner was responsible for carrying on the business and� was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. Thus, where the documents produced by the prosecution do not indicate even remotely that all the partners were doing the business of the firm and there was no other evidence on record on this aspect, it could not be said that when the offence was committed all the partners were conducting the business of the firm. Therefore, they would not be liable for conviction.

The language of Section 88 of Trade and Merchandise Marks Act is similar to Section 10 of the E.C. Act and, therefore, the same principle would apply. As observed earlier, there is no allegation in the complaint and also in the statement of the complainant u/s 200, Code of Criminal Procedure to the effect that the applicants were incharge and responsible for the conduct of the business of M/s. Associated Textiles, Malaviya Road, Deoria. In absence of any evidence to that effect, the prosecution of the applicants is wholly unjustified.

In view of the discussion made above, the petition succeeds and is hereby allowed. The proceedings of Criminal Case No. 501 of 1983 pending in the Court of Munsif Magistrate 1st Class, Deoria, as against the applicants are quashed.