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of Sections 63 and 64 of Copy Right Act, 1957 and Sections 78 and 79 of Trade and Merchandise Marks Act, 1958 which was repealed under Section 159 of the Trade Mark Amendment Act, 1999 and therefore, the petitioners are not liable for prosecution.=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It is true that Sections 78 and 79 of the Trade and Merchandise Act were repealed under Section 159 of the Trade Marks Amendment Act, 1999.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 |
|
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
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