Crl.R.P. No.724/2023: Janmejoy Khan Amila Bazar & others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023/5TH ASWINA, 1945** **CRL.REV.PET NO.724 OF 2023** **AGAINST THE ORDER IN CMP 1063/2021 IN CC 10/2021 OF CHIEF JUDICIAL MAGISTRATE, KOZHIKODE** ## **REVISION PETITIONERS/PETITIONERS/ACCUSED:** - **1 JANMEJOY KHAN AMILA BAZAR, AMILA P.O BURDWAN DISTRICT, WEST BENGAL, PIN - 713423** - **2 DEBDIP KHAN AMILA BAZAR, AMILA P.O BURDWAN DISTRICT, WEST BENGAL, PIN - 713423** - **3 BISWAJITH HAZRA AMILA BAZAR, AMILA P.O BURDWAN DISTRICT, WEST BENGAL, PIN - 713423** - **4 PROSENJITH HAZRA AGED 53 YEARS S/O MRITYNJAYA HAZRA, AMILA BAZAR, AMILA P.O BURDWAN DISTRICT, WEST BENGAL, PIN - 713423** - **5 PATIT PABAN KONAR AGED 69 YEARS S/O DINA BINDHU KONAR, CHAKUNDI NABASTHA P.O, BURDWAN DISTRICT PRESENTLY RESIDING AT NUTAN PALLY, ADI KALI BARI, EAST LANE, BURDWAN DISTRICT, WEST BENGAL, PIN - 713423** - **6 PROTAP CHANDRA KONAR AGED 28 YEARS S/O PATIT PABAN KONAR, CHAKUNDI NABASTHA P.O, BURDWAN DISTRICT PRESENTLY RESIDING AT NUTAN PALLY, ADI KALI BARI, EAST LANE, BURDWAN DISTRICT, WEST BENGAL, PIN – 713423** - **7 MOHABBATH MALIK AMILA BAZAR, AMILA P.O BURDWAN DISTRICT, WEST BENGAL, PIN - 713423** Crl.R.P. No.724/2023 : 2 : **8 NASER ALI AGED 45 YEARS S/O USMAN P.P, CHEMBRA THAZHAM, KULLANGARA PEEDIKA, GURUVAYOORAPPAN COLLEGE P.O KOZHIKODE., PIN – 673014** **BY ADVS. SHARAN SHAHIER RAKHY BABY AGNA JOY EDWIN JOSEPH** ## **RESPONDENTS/RESPONDENTS/STATE AND DE FACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **2 SREEPATHI BHAT, AGED 36, S/O RAMACHANDRA BHAT, MARKETING PROMOTIONAL MANAGER & AUTHORIZED REPRESENTATIVE M/S BARDHAMAN AGRO PRODUCTS (I) LTD. AHALADIPUR, P.O SHYAMSUNDAR, RAINA, BUDRWAN, WEST BENGAL. RESIDING AT GOCHARAN HOUSE, NEAR MALADI I.T COLLEGE, SONANDURU, DAKSHINA KANNADA, KARNATAKA-, PIN – 574224** **BY ADVS. SRI.M.P. PRASANTH, PUBLIC PROSECUTOR SRI.DEVAPRASANTH P.J-R2 SMT.SMINI JOSE(K/262/2015)-R2** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P. No.724/2023 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## Crl.R.P. No.724 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 27[th] day of September, 2023_ ## **O R D E R** ~ ~ ~ ~ ~ ~ The accused in CC No.10/2021 of the Court of the Chief Judicial Magistrate, Kozhikode are in revision aggrieved by the rejection of their application for discharge CMP No.1063/2021 filed under Section 239 Cr.P.C. 2. The prosecution alleged that Bhardhaman Agro Products (I) Private Limited is a corporate firm and its Marketing Promotional Manager is the informant. The Firm is marketing rice in the brand name “Rose Brand”. The accused conspired together and formed a Firm named “Bhardhaman JM Agro Products”. The accused marketed their finished rice products in packets marked as “Three Crl.R.P. No.724/2023 : 4 : Roses”, which is deceptively similar to the trade mark of the informer. The accused marketed their rice as if it is the product of Bhardhaman Agro Products (I) Private Limited. 3. When the Station House Officer submitted Final Report for offences punishable under Sections 465, 467, 468, 420 and 120B read with Section 34 IPC and Section 63 of the Copyright Act, the accused filed CMP No.1063/2021 seeking discharge, invoking Section 239 Cr.P.C. 4. The Chief Judicial Magistrate, after examining the petitioner and hearing the parties, held that affixing a brand name deceptively similar to that of the complainant-company will induce others to purchase it believing that it is the product of the complainant-company. Whether there is any violation of the Trademark Act and whether there is violation of any artistic work inviting penal consequences under the Copyright Act are matters of trial. The Chief Judicial Magistrate held that this is not a fit case to discharge the accused persons at this stage. Consequently, the CMP for discharge was dismissed. Crl.R.P. No.724/2023 : 5 : 5. The counsel for the revision petitioners submitted that the decision of the Chief Judicial Magistrate is not correct. It is contrary to law and materially irregular. The counsel for the petitioners argued that the issue in question would in no way attract provisions of the Copyright Act. Copyright is given to a creator of literary, dramatic, musical and artistic work and a producer of cinematograph film and sound recordings. It will also apply to architectural works and computer program/software. In the case on hand, the applicability of trademark will not be attracted. The 'Three Roses' printed on the sack are not deceptively similar to the trademark of the complainant. 6. The counsel further pointed out that the revision petitioners have never created any false documents and therefore no offence of forgery will be attracted. To attract forgery, there should be creation of a document which is forged. 7. The counsel for the petitioners pointed out that initially a crime was registered under Section 104 of the Crl.R.P. No.724/2023 : 6 : Trade Marks Act and based on it, several offences related to forgery and cheating were included. When the police realised that the search and seizure conducted by them was not in accordance with the provisions of the Trade Marks Act, the police added Section 63 of the Copyright Act in the Final Report. As the foundational facts required for sustaining the alleged offences are conspicuously absent, the petitioners are entitled to discharge, contended the counsel for the petitioners. 8. The counsel for the 2[nd] respondent resisted the revision petition and argued that the requisite foundational facts are available in the Final Report, to sustain charges. The 2[nd] respondent has obtained copyright for artistic work of “Rose Brand”. The Registrar of Copyrights has issued registration number to the artistic work in question. In spite of the allegation of the petitioners that a brand name or picture is not eligible for grant of copyright under the Copyright Act, as long as the competent authority, namely Registrar of Copyrights, has given registration to the art work Crl.R.P. No.724/2023 : 7 : of the 2[nd] respondent, the petitioners are liable to be proceeded against for violation of copyright. 9. The counsel for the 2[nd] respondent urged that a false document in the ordinary meaning is not a requirement for constituting the offence of forgery under Section 463 IPC, in view of the definition of the term “Document” as contained in Section 29 IPC. As foundational facts to sustain prosecution are available, the revision petitioners are not entitled to discharge under Section 239 Cr.P.C. and the revision petitioners have to face the trial. 10. The counsel for the revision petitioners argued that in view of the judgment of the Hon'ble Apex Court in _**Shri Sukhbir Singh Badal v. Balwant Singh Khera and others** [Criminal Appeal No.1116 of 2023],_ the document in question should fall within one of the three categories as declared by the Apex Court. The alleged document is a sack and it cannot be treated as a document falling under the three categories mentioned by the Hon'ble Apex Court. Crl.R.P. No.724/2023 : 8 : 11. I have heard the learned counsel for the petitioners, learned Public Prosecutor representing the 1[st] respondent and the learned counsel appearing for the 2[nd] respondent. 12. The allegation against the petitioners is that they have marketed their rice products affixing “Three Roses” picture in sacks which is deceptively similar to that of the trademark of the complainant. The argument of the revision petitioners is that there cannot be an offence of forgery as the petitioners have not forged any document. As the brand mark of the 2[nd] respondent is not an artistic work, the offence of copyright also cannot be sustained. 13. The petitioners are charged of offences under Sections 465, 467, 468, 420 and 120B read with Section 34 IPC and Section 63 of the Copyright Act. The offences under Sections 465, 467 and 468 IPC relate to forgery. Section 463 IPC states that whoever makes any false document or part of a document with intent to cause damage or injury, to the public or any person, or to support any claim or title, or to Crl.R.P. No.724/2023 : 9 : cause any person to part with property, or to enter into any express or implied contracts, or with intend to commit fraud or that fraud may be committed, commits forgery. 14. Section 29 IPC states that the word “Document” denotes any matter expressed or described upon any substance by means of letters, figures or marks, or more than one of those means, intended to be used, or which may be used, as evidence of that matter. In view of Section 29, if any matter is expressed in a sack/packet, the same can be treated as a document. If that be so, then whether the petitioners have committed forgery, is a matter which can be considered and decided only after trial. 15. The counsel for the petitioners relied on the judgment of the Hon'ble Apex Court in Criminal Appeal No.1116/2023. The Hon'ble Apex Court in the said judgment held that - 14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories: Crl.R.P. No.724/2023 : 10 : 1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. 2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration. In short, a person is said to have made a “false document”, if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses. Crl.R.P. No.724/2023 : 11 : From the said judgment, it is evident that the offence under Section 464 IPC will take in a case where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person. Whether the facts alleged by the prosecution would bring the case in the said category, is also a matter which has to be decided on the basis of evidence adduced. 16. In the afore circumstances, I do not find that the petitioners have made out a case for discharge as far as the offences punishable under Sections 465, 467 and 468 IPC are concerned. 17. As regards the offence under Section 63 of the Copyright Act, the 2[nd] respondent would assert that their Firm has obtained copyright of the specimen of the artistic work and that the Deputy Registrar of Copyrights has issued registration No.A-108134/2013. As a competent authority has issued copyright to the 2[nd] respondent, then the 2[nd] respondent and the prosecution would be justified in making Crl.R.P. No.724/2023 : 12 : out a case of copyright violation. Whether statutory copyright can be granted to a brand name/picture is not a matter, that will arise at the stage of Section 239. In the afore facts and circumstances of the case, I am of the view that the Chief Judicial Magistrate, Kozhikode has rightly dismissed the application for discharge filed by the petitioners. The Criminal Revision Petition is therefore without any merit and it is accordingly dismissed. Sd/- **N. NAGARESH, JUDGE** aks/26.09.2023