LAXMIKANT VYANKATESH PANDE Vs. GOKULDAS POPATLAL SINDHI

JUDGEMENT

(1.) THE applicant complainant has filed this revision application challenging the order confirming the dismissal passed by the Additional Sessions Judge, Akola, in Criminal Revision Application No. 32 of 1973 arising out of an order dated 14-8-1973 passed by the Judicial Magistrate First Class, Akola in Criminal Case No. 2440/73 dismissing the complaint of the complainant.

(2.) THE facts in brief are as under--The complainant is the Controller of Akola area of Brooke Bond India Limited, a Company incorporated under the Indian Companies Act having its registered office at Calcutta. The Company has got branches all over India. The Company is selling one brand which is known as "special Hotel Blend. " The said tea is wrapped in a packet with a floral design with a rose flower with green leaves and a stem underneath. The details about this wrapper is to be found in paragraph No. 3 of the complaint. The complainant further recited in the complaint that the necessary trade mark of the said wrapper has been duly obtained by the Brooke-Bond India Limited in their own name and accordingly the same is used by them for selling their products stated above. The complainant further asserted that another tea is being sold in wrappers containing identical packets with the only difference in the name, namely, Flower Brand Tea but the wrappers, the floral designs are very much identical to the one which has been got registered by Brooke Bond India Limit- ed. The design used by those sellers also shows a floral design identical to the one used by the complainant's company and on these allegations filed a complaint under Section 79 of Trade and Merchandise Marks Act, 1958 and under Section 420 of the Indian Penal Code against some unknown persons within the jurisdiction of the Judicial Magistrate First Class Akola. Along with the complaint an application was given under Section 96 of the Criminal P. C. for seizing the packets of the tea wrapped in imitative brand. On receipt of the complaint, the Judicial Magistrate First Class ordered the police to search for whether anybody was selling tea packets as stated in the complaint and has also sent the complaint for enquiry to the police station of Akola. This complaint was filed on 4-5-1973. On the very day or on 5-5-1973 the police seized 72 boxes in the premises of a firm known as "gemandas Popatlal and Company. " The non-applicant No. 1 in this revision application is one Gokuldas who is the partner of this Company. On 53-1973 Shri Gokuldas made an application that these boxes were taken possession from his firm. He was selling them as an Agent of some firm from Indore and they should be returned in his custody on passing an order of Supratnama. Accordingly 67 boxes were returned to him and 5. boxes were retained in Court,

(3.) WHEN the enquiry was in progress before the police, it appears that on 11-5-1973 Gokuldas made an application under Section 203 of the Criminal P. C. for dismissing the complaint. In this application Gokuldas stated that he was the agent for Gold Brand Tea Manufacturer, a partnership firm of Indore for Akola District, He further stated that complainant that is the Controller of Brooke 'bond India Limited was fully aware of this fact that this brand of tea was manufactured by the firm of Indore. He has stated that Brooke Bond India Limited had given a notice to Gokuldas in the year 1962 that the Indore firm had violated provisions of Sections 105 and 106 of the Indian Trade Merchandise Marks Act, 1958. The Indore firm gave a reply and in the year 1967 the Brooke Bond India Limited filed a civil suit in the Court of the District Judge, Indore, for permanent injunction and other necessary reliefs. In that suit a prayer was made by filing an application that temporary injunction be granted against the firm of Indore. That application was not pressed for temporary injunction on certain terms and conditions. It is unnecessary for the disposal of this revision application to enumerate the terms and conditions but it was contended on behalf of Gokuldas that the complainant failed to obtain necessary injunction. Complainant suppressed this fact and filed the complaint one at Akola and the other at Aurangabad against unknown persons. It is further contended that the complainant cannot be allowed to say that the goods which were seized could not be sold in market. There was no sufficient ground for proceeding against anybody including Gokuldas or his firm and the complaint should be therefore, dismissed. Along with this application an application and some documents were produced, namely, the certified copy of the plaint filed by Brooke Bond India Limited as well as the order passed on an application for temporary injunction by Brooke Bond India Limited by the Destrict Judge, Indore.