Court No. - 55
Case :- CRIMINAL REVISION No. - 3335 of 2012
Revisionist :- Durgesh Kumar
Opposite Party :- State Of U.P. And Others
Counsel for Revisionist :- Swapnil Kumar,Dileep Kumar
Counsel for Opposite Party :- Govt.Advocate,Rajiv Lochan Shukla
Hon'ble Vivek Kumar Singh,J.
1. Heard Sri Dilip Kumar, Swapnil Kumar and Sri Rajershi Gupta, learned counsel for the revisionist and Sri Rajiv Lochan Shukla, learned counsel for the opposite party nos.2 to 4 and Sri Ravi Singh Parihar, learned A.G.A. and perused the material available on record.
2. Under challenge in this revision is the order dated 9.8.2012 in Complaint Case No.1010 of 2011 passed by the Judicial Magistrate, Kaimganj, District Farrukhabad, whereby the complaint filed by the revisionist has been dismissed.
3. The brief facts of the case are that a firm in the name of "M/s Satish Chandra Prahlad Narian" is registered under the Indian Partership Act on 15.3.1975 having its four partners namely Prahlad Narain Agarwal, Durgesh Kumar, Smt. Kumud Agarwal and Virendra Agarwal minor under the guardianship of his father Ram Kishan; all having equal share i.e. 25% each. The written partnership deed was also executed on 15.3.1975 which was re-executed on 15.12.1976 as minor Virendra Kumar became major. Subsequently, the deed of partnership was re-executed on 2.4.1992 and again on 1.4.1998 in which the clause of salary for partners was included, a copy of partnership deed dated 1.4.1998 is annexed as annexure-1 to this revision. It is further averred that partnership was at will and by partnership deed dated 1.4.1998, the three working partners namely Prahlad Narain, Durgesh Narain and Virendra Kumar were given the remuneration of Rs.8,000/-P.M. Subsequently a partnership deed dated 1.4.1998 were changed and the remuneration/salary of the working partners was increased from Rs.8,000 to 10,000/- per month w.e.f. 1.4.2009 and the partnership at will was made subject to the condition that the business of the firm will not be terminated by any of the partner without consent and writing of all the remaining partners and if any of the partners intends to retire from the partnership, he may withdraw after taking his share in the existing firm and the business of the partnership will continue with remaining partners, this partnership deed dated 1.4.2009 was signed by all the partners and the same was acted upon, a copy of said addenda dated 1.4.2009 is annexed as annexure-2 to this revision.
4. It is further averred that the aforesaid existing partnership firm is basically doing the business of Hucca, Tabacco and Chewing Tobacco in wholesale under Trade Mark 'KAKA' which is a registered Trademark of existing firm. The said firm got its registration under the Trade and Merchandise MarksAct, 1958 in clause 34 in the name of "KAKA CHHAP" having registration no.549005 dated 15.4.1991 filed in the concerned Court below as paper no.7B/12 attested copy as paper no.20A, a copy of which has been annexed as annexure-3 to this revision. The aforesaid existing firm also got its design registered under the Trade Marks Act, 1999 in clause 34 being registration no.613472 filed in the concerned Court below as paper no.7B/13 and attested copy as paper no.19A, a copy of which has been annexed as annexure-4 to this revision. The aforesaid existing firm also got its lable and design registered under the Copy Right Act, 1957 which were filed in the Court below after attestation as paper no.21A/1 - 21A/5, a copy of which has been annexed as annexure-5 to this revision.
5. It is further submitted that the opposite party no.2 with intention to exclude the other partner from the business of the existing firm, in a malafide manner constituted another partnership firm alongwith his two sons in the name and style of M/s Prahlad & Company on 1.5.2010, however, the opposite party no.2 could not have become a partner in the aforesaid new firm in view of Section 16(b) of the Indian Partnership Act, 1932 unless the provisions are complied with as new firm is involved in the same business of the same nature and will be competitor with the existing firm. It is further averred that opposite party no.2 constituted a new firm with intention to use and utilize goodwill and business connection of the existing firm so as to cause financial loss to the other partners of existing firm. This act of the opposite party no.2 clearly shows the intention of the cheating since inception, committed forgery by using the trade mark and design of the existing firm on the part of opposite party no.2 in collusion with opposite party nos.3 & 4. It is next averred that on raising objection by other partners of existing firm, the opposite party no.2 without any authority and any law in his favour sent notice dated 22.10.2010 purporting to dissolve the existing firm with effect from 22.10.2010. A detailed reply to the aforesaid notice was sent on 8.11.2010 by the other partners of existing firm to the opposite party no.2 specifically stating that partnership firm is not the firm at will in view of addenda deed dated 1.4.2009 by which clause 8 of the partnership deed is already substituted w.e.f. 1.4.2009 under which the opposite party no.2 cannot dissolve the firm without the consent of other partners and best he can withdraw himself from existing partnership firm. In fact the existing firm namely M/s Satish Chandra, Prahalad Narain is still continuing and has not been dissolve upto now, but opposite party no.2 and his son tried into running of the business of the existing firm therefore Original Suit No.686 of 2010 (Smt. Kumud Agarwal Vs. Prahlad Narain Agarwal) was filed in the Court of Civil Judge, Farrukhabad for permanent injunction restraining the defendant to interfere in running of business of M/s Satish Chandra, Prahlad Narain. However, subsequently aforesaid suit has been withdrawn/abandon by the plaintiff and suit has been permitted to be withdrawn by the Civil Judge, Farrukhabad vide order dated 17.10.2011. Another Original Suit No.1 of 2010 Smt. Kumud Agarwal and three others Vs. Prahlad Narain Agarwal and three others has been filed before the district Judge Farrukhabad to restrain the defendants not to use 'KAKA' and registered design of pouch and packing material registered in the name of M/s Satish Chandra Vs.Prahlad Narain) the aforesaid suit is still pending and the opposite party no.2 has appeared and filed application under Section 8 of Arbitration and Conciliation Act 1996 for referring the dispute to arbitrator which is now pending. The opposite party no.2 is not permitting the case to proceed. It will be relevant to state that the O.P. Nos. 2, 3 and 4 are fully aware with the fact that they are not entitled to use and utilise the trademark and design registered in the name of M/s Satish Chandra, Prahlad Narain and therefore they themselves applied for getting registration of their trademark as "KAKA CHAP TABACCO WITH DEVICE" on 02.08.2010, reference in this regard has been made to annexure-6 to this revision.
6. In the aforesaid circumstances the revisionist filed criminal complaint case no.900 of 2011 under the provisions of I.P.C. and Partnership Act in which the opposite parties were summoned, a reference in this regard has been made to Annexure 8. Thereafter the revisionist has again filed a complaint no. 1010 of 2011 Durgesh Kumar Vs. Prahlad Narain Agarwal and others before Judicial Magistrate, Kaimganj, District Farrukhabad with request to take action against the opposite parties for violation of the provision of the Trade Mark Act and Copyright Act. In support of the complaint the revisionist himself appeared and his statement under section 200 Cr.P.C. was recorded on 24.11.2011 and he produced Amol Agarwal whose statement was recorded under section 202 Cr.P.C. Learned Magistrate illegally against the law permitted the opposite parties to file objection against the complaint and thereafter considering those documents illegally dismissed the complaint of the revisionist vide order dated 01.02.2012. Feeling aggrieved by the aforesaid order dated 01.02.2012, the revisionist preferred Criminal Revision No. 1470 of 2012 Durgesh Kumar Vs. State of U.P. and others before this Hon'ble Court which was allowed on 07.05.2012 and the order of the Learned Magistrate dated 01.02.2012 was set aside and the Learned Magistrate was further asked to pass appropriate order. Now again the Learned Magistrate on a very hyper technical ground by almost holding a mini trial again illegally have rejected the complaint of the applicant under section 203 Cr.P.C. vide order dated 09.08.2012.
7. Sri Rajiv Lochan Shukla, learned counsel for the opposite party no.2 with great strength has justified the order impugned and submitted that the revisionist had earlier approached this Court by filing Application U/s 482 Cr.P.C. No.1470 of 2012 in which the matter was remanded back to the concerned Court below for fresh consideration, thereafter, after applying the judicial mind the concerned below had passed the order impugned which suffers from no illegality or infirmity. It is further submitted that so far as the argument of counsel for the revisionist regarding alleged hindrance created by opposite party no.2 and his son into the running of the business of the existing firm is concerned for the same Original Suit No.686 of 2010 (Smt. Kumud Agarwal Vs. Prahlad Narain Agarwal) has been filed in the Court of Civil Judge, Farrukhabad. It is therefore, submitted that no criminal liability can be fastened on the opposite parties by way of any complaint.
8. I have given my thoughtful consideration to the pleadings advanced by the learned counsel for the parties and perused the material on record.
9. The submission of the learned counsel for the revisionist is that the act of the opposite party no.2 clearly shows the intention of cheating since inception and had committed forgery by using the trade mark and design of the existing firm on the part of opposite party no.2 in collusion with opposite party nos.3 & 4 and on raising objection by other partners of existing firm, the opposite party no.2 without any authority and any law in his favour sent notice dated 22.10.2010 purporting to dissolve the existing firm with effect from 22.10.2010. A detailed reply to the aforesaid notice was sent on 8.11.2010 by the other partners of existing firm to the opposite party no.2 specifically stating that partnership firm is not the firm at will in view of addenda deed dated 1.4.2009 by which clause 8 of the partnership deed is already substituted w.e.f. 1.4.2009 under which the opposite party no.2 cannot dissolve the firm without the consent of other partners and best he can withdraw himself from existing partnership firm. In fact the existing firm namely M/s Satish Chandra, Prahalad Narain is still continuing and has not been dissolve upto now, but opposite party no.2 and his son tried into running of the business of the existing firm therefore Original Suit No.686 of 2010 (Smt. Kumud Agarwal Vs. Prahlad Narain Agarwal) was filed in the Court of Civil Judge, Farrukhabad for permanent injunction restraining the defendant to interfere in running of business of M/s Satish Chandra, Prahlad Narain. It is thus argued that again the Learned Magistrate on a very hyper technical ground by almost holding a mini trial again illegally rejected the complaint of the revisionist under section 203 Cr.P.C. vide order dated 09.08.2012, which is bad in law.
10. Learned counsel for the revisionist has drawn the attention of this Court towards the dictum of Hon'ble Apex Court in the matter of Arun Bhandari Vs. State of Uttar Pradesh and others reported in (2013) 2 SCC 801 and referred paragraph nos.26, 27 and 28 thereof, which reads as under:-
26. At this stage, we may usefully note that some times a case may apparently look to be of civil nature or may involve a commercial transaction but such civil disputes or commercial disputes in certain circumstances may also contain ingredients of criminal offences and such disputes have to be entertained notwithstanding they are also civil disputes. In this context, we may reproduce a passage from Mohammed Ibrahim and others v. State of Bihar and another: -
"8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G. Sagar Suri v. State of U.P.[14] and Indian Oil Corpn. v. NEPC India Ltd.[15])"
27. In this context we may usefully refer to a paragraph from All Cargo Movers (I) Pvt. Ltd. V. Dhanesh Badarmal Jain & Anr.
[16] "…..Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondence exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior Courts while exercising this power should also strive to serve the ends of justice."
28. In Rajesh Bajaj v. State NCT of Delhi and others, while dealing with a case where the High Court had quashed an F.I.R., this Court opined that the facts narrated in the complaint petition may reveal a commercial transaction or a money transaction, but that is hardly a reason for holding that the offence of cheating would elude from such a transaction. Proceeding further, the Bench observed thus: -
"11. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that the respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that the respondent after receiving the goods had sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities."
11. After hearing the learned counsel for the revisionist, learned counsel for the opposite party no.2 and learned A.G.A., and after perusing the order impugned as well as averments made in the present revision, this Court is of the opinion, that the arguments as raised by learned counsel for the revisionist has substance.
12. Accordingly, the order dated order dated 9.8.2012 passed by the Judicial Magistrate, Kaimganj, District Farrukhabad is hereby set aside with the liberty to the revisionist to file an appropriate application before the concerned Court below and if such an application is filed, the same shall be considered and disposed of as expeditiously as possible, in accordance with law, preferably within a period of two months thereafter.
13. With the aforesaid directions, this application is finally disposed off.
Order Date :- 24.8.2018 Dev & Krishna/-