Copy right Act 1957 and Trade and Merchandise Act 1958 = repealing of Secs. 78,79 Under sec. 159 of Amended Act 1999 = quoting replead sections in charge sheet= not confirm any right on accused for quashing the proceedings = selling the duplicate/spurious bearings with the trade mark ‘SKF’ and have been making profit by illegal and deceitful means is an offence under old Act and Amended Act 1999- under sec.102 selling is an offence and under sec.103 penalty was mentioned - merely replead sections were quoated in the charge sheet does not wipe the offence committed - Magistrate directed to frame charges under appropriate sections as per law = Gummidi Rajesh and another …Petitioners/Accused And The State of A.P. rep. by Public Prosecutor, High Court of A.P., Hyderabad and another ….Respondents = published in http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRLP&mno=1640&year=2013

Copy right Act 1957 and Trade and Merchandise Act 1958 = repealing of Secs. 78,79 Under sec. 159 of Amended Act 1999 = quoting replead sections in charge sheet= not confirm any right on accused for quashing the proceedings = 
selling the duplicate/spurious bearings with the trade mark ‘SKF’ and have been making profit by illegal and deceitful means is an offence under old Act and Amended Act 1999- under sec.102 selling is an offence and under sec.103 penalty was mentioned - merely replead sections were quoated in the charge sheet does not wipe the offence committed - Magistrate directed to frame charges under appropriate sections as per law = 
charge sheeted by the Inspector of Police, II Town Police Station, Visakhapatnam for the offences under Sections 63 and 64 of Copy Right Act, 1957 and under Sections 78 and 79 of Trade and Merchandise Marks Act, 1958.  =
 the offences alleged would attract the provisions of Sections 63 and 64 of Copy Right Act, 1957 and Sections 78 and 79 of Trade and Merchandise Marks Act, 1958 which was repealed under Section 159 of the Trade Mark Amendment Act, 1999 and therefore, the petitioners are not liable for prosecution.=
Merely because the investigating officer mentioned the wrong penal provision, the petitioners cannot escape prosecution so long as the act committed by them amounts to criminal offence.  
It is true that Sections 78 and 79 of the Trade and Merchandise Act were repealed under Section 159 of the Trade Marks Amendment Act, 1999. 
But, falsifying and falsely applying trade marks is an offence under 1958 Act ad also 1999 Act.  
Section 102 of the Trade Marks Act, 1999 deals with falsifying and falsely applying trade marks and penalty for the said offence is provided under Section 103 of the Trade Marks Act, 1999. 
Therefore, it is no longer open for the petitioners to contend that the act committed by them is not an offence relating to falsifying and falsely applying trade marks.  
The learned Magistrate who has to try the offence has to consider 
whether the act complained of is an offence under the Penal Code or any of the Special Enactments.  
The learned Magistrate is not precluded from framing the appropriate charges and proceed with the trial of the offence alleged against the petitioners.  
The criminal prosecution launched against the petitioners, cannot therefore be quashed on technical grounds as the allegations levelled in the charge sheet would constitute the specific offence.
CRLP 1640 / 2013
CRLPSR 5446 / 2013
PETITIONERRESPONDENT
GUMMIDI RAJESH, & ANOTHER,  VSTHE STATE OF AP REP BY ITS PP HYD., & ANOTHER,
PET.ADV. : PANI KUMARRESP.ADV. : PUBLIC PROSECUTOR
SUBJECT: U/s.482 Cr.p.c Other offences not covered(Misc.)DISTRICT:  VISAKHAPATNAM
THE HON’BLE MR JUSTICE R. KANTHA RAO

Crl.P.No.1640 of 2013

Date:08.04.2013

Between:

Gummidi Rajesh and another


                                                 …Petitioners/Accused

                             And

The State of A.P. rep. by Public Prosecutor,
High Court of A.P., Hyderabad and another
                                                ….Respondents


HON’BLE SRI JUSTICE R. KANTHA RAO
Criminal Petition No.1640 of2013
ORDER:

        This criminal petition is filed under Section 482 of Cr.P.C. to quash the proceedings in C.C.No.350 of 2009 on the file of the II Additional Chief Metropolitan Magistrate, Visakhapatnam.
        I have heard the learned counsel appearing for the petitioners-accused and the learned Additional Public Prosecutor representing the State.
        The petitioners were charge sheeted by the Inspector of Police, II Town Police Station, Visakhapatnam for the offences under Sections 63 and 64 of Copy Right Act, 1957 and under Sections 78 and 79 of Trade and Merchandise Marks Act, 1958.  
After registering a case in Crime No.40 of 2009, on the strength of the report lodged by LW-1, the Field Officer in Firewall Investigation, SKF India Limited who is the de facto complainant alleging that the petitioners were selling the different sizes of duplicate bearings in the name of ‘SKF’ and were making money in a fraudulent way, the Inspector of Police conducted thorough investigation into the case and on being satisfied that the petitioners were selling the duplicate ‘SKF’ bearings deceitfully in their Vijaya Sri Bearings Shop, Dolphin Junction, Visakhapatnam filed the charge sheet.
        It is contended by the leaned counsel appearing for the petitioners 
that the offences alleged would attract the provisions of Sections 63 and 64 of Copy Right Act, 1957 and Sections 78 and 79 of Trade and Merchandise Marks Act, 1958 which was repealed under Section 159 of the Trade Mark Amendment Act, 1999 and therefore, the petitioners are not liable for prosecution.
        The allegation against the petitioners which is specifically made in the charge sheet is that they were selling the duplicate/spurious bearings with the trade mark ‘SKF’ and have been making profit by illegal and deceitful means. 
 In the course of the raid conducted by the investigating officer in the presence of the Field Officer of Fire Wall Investigation Force, SKF India Limited who is the de facto complainant, seized 99 spurious bearings with the trade mark ‘SKF’ from the shop of the petitioners. 
Therefore, the allegation mentioned in the charge sheet certainly amounts to criminal offence.  
The alleged criminal offence may be under the special enactment or may be under any of the provisions of the Penal Code.  
Merely because the investigating officer mentioned the wrong penal provision, the petitioners cannot escape prosecution so long as the act committed by them amounts to criminal offence.  
It is true that Sections 78 and 79 of the Trade and Merchandise Act were repealed under Section 159 of the Trade Marks Amendment Act, 1999. 
But, falsifying and falsely applying trade marks is an offence under 1958 Act ad also 1999 Act.  
Section 102 of the Trade Marks Act, 1999 deals with falsifying and falsely applying trade marks and penalty for the said offence is provided under Section 103 of the Trade Marks Act, 1999. 
Therefore, it is no longer open for the petitioners to contend that the act committed by them is not an offence relating to falsifying and falsely applying trade marks.  
The learned Magistrate who has to try the offence has to consider 
whether the act complained of is an offence under the Penal Code or any of the Special Enactments.  
The learned Magistrate is not precluded from framing the appropriate charges and proceed with the trial of the offence alleged against the petitioners.  
The criminal prosecution launched against the petitioners, cannot therefore be quashed on technical grounds as the allegations levelled in the charge sheet would constitute the specific offence.
        For the foregoing reasons, the criminal petition is dismissed.

_______________
R.KANTHA RAO,J
Date:08.04.2013
ccm











THE HON’BLE MR JUSTICE R. KANTHA RAO

































Crl.P.No.1640 of 2013

Date:08.04.2013


Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

cancellation of the sale deeds = Under the Registration Act, 1908 and the Rules framed thereunder, which provide that registration/cancellation of document is only with reference to the executant and the claimant under a document, which is already registered. Petitioner, being a third party, is, therefore, not entitled to approach the registering authority and seek cancellation of the documents executed by third party in favour of any other party. Petitioner’s reliance upon Rule 26 of the Rules framed under the Registration Act is also misconceived inasmuch as Rule 26(k)(i) of the Rules specifically refer to the duty of the registering authority to ensure that the deed of cancellation is executed by all the executants and the claimants, who are parties to previously registered document and only on mutual consent a deed of cancellation can be registered. Since petitioner is not a party to the impugned sale transactions between two different individuals, he is not entitled to seek cancellation thereof and in any case, the petitioner does not satisfy even the requirement of Rule 26, referred to above.