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CR.MA/3105/2002 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3105 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SUN
TEXTILE ENGINEERS & 2 - Applicant(s)
Versus
STATE
OF GUAJRAT & 1 - Respondent(s)
=========================================================
Appearance
:
Ms
RUSHVI N SHAH WITH GHATA DAVE FOR DR RAJESH H ACHARYA for
Applicant(s) : 1 - 3.MR BHARAT D SHUKLA for Applicant(s) : 1 - 3.
MR
KARTIK PANDYA, APP for Respondent(s) : 1,
NANAVATI ASSOCIATES for
Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 20/10/2010
ORAL
JUDGMENT
Petitioners
are the original accused. They seek quashing of complaint bearing
inquiry case No.3 of 2002 pending before JMFC, Surat on the ground
that the complaint does not disclose any of the offences mentioned
in the complaint.
In
the impugned complaint, offences mentioned against the petitioners
are those punishable under section 101 to 104 of the Trade Marks Act,
1999 (hereinafter to be referred to as “the Act of 1999”),
under section 63 of the Copyright Act, 1957 and under section 420 of
the Indian Penal Code. The complainant has alleged, inter alia, that
the complainant company is manufacturer of bulk transporters with air
slide discharge system with trade name “ACC – ShimMaywa”
and sells such products throughout India. Such bulk transporters are
specially designed for transporting large quantities of powdery
material such as cement, fly-ash, etc. and delivering such
materials in a short time with the aid of compressed air. Such
machines ensure that the material is transported in closed
container protected against weather conditions. The
complainant-Company is the owner and proprietor of the said trade
mark ACC – ShinMaywa Bulk Transporter with the above features.
The customers and purchasers of such machines associate the product
with such trade mark.
It
is further alleged that the accused in order to deceive and defraud
the customers of the complainant Company copied such trade mark and
trade description deceptively and are using the trade mark and trade
description. They have copied the same and essential features
printed in the catalogue of the Company’s product. On the above
grounds, it is alleged that the petitioners committed offence
punishable under section 101 to 104 of the Act of 1999. They also
committed offence under section 63 of the Copyright Act and section
420 of the Indian Penal Code.
I
have heard the learned counsel for the petitioners. No one appeared
for the original complainant though the matter was heard for a span
of two days.
Counsel
for the petitioners submitted that the complaint was lodged in the
year 2002 for the alleged offence punishable under the Act of
1999 which was actually brought into effect from 15th
September 2003. She further submitted that there is no infringement
of the Copyright Act since copyright can be claimed only for limited
things. She further submitted that the product of the petitioners is
called Sun Bulk Transporter. Trade Mark ACC ShinMaywa is in no way
copied. She submitted that the purchasers and customers are educated
persons engaged in construction or other related business.
Therefore, no case for cheating is made out.
I
have also heard the learned APP for the State.
Having
heard the learned advocates and having perused the documents on
record, it clearly emerges that the impugned complaint filed in the
year 2002, offences alleged are under the Act of 1999 which has been
brought into force with effect from 15th September 2003.
Obviously, there cannot be retrospective operation of criminal
provisions. No case for proceeding further under section 101 to 104
of the Act 1999 is therefore made out.
With
respect to the allegations of offence under section 63 of the
Copyright Act, it is clear from section 13 of the said Act that
copyright can be claimed only for the works of (a) original
literary, dramatic, musical and artistic works; (b) cinematograph
films and (c) sound recording.
Admittedly,
the present case does not fall in any of the above categories.
With
respect to section 420 of the Indian Penal Code, no clear averments
are made in the complaint how the customers are cheated. I have
perused the brochure of the complainant Company for selling the said
machine as well as that of the petitioner Company. There is no
apparent similarity by which the educated customers could be misled.
Therefore, no case for cheating is also made out.
In
the result, the impugned complaint being Inquiry Case No.3 of 2002
of the court of JMFC, Surat is quashed. Rule is made absolute
accordingly.
(Akil
Kureshi, J.)
(vjn)
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