- (1.) G. P. Mathur, J. This petition under Section 482, Cr. P. C. has been filed for quashing the proceedings of criminal case No. 501 of 1983 pending in the Court of Munsif Magistrate, 1st class, Deoria.
(2.) OFFICE has submitted a report that notice was sent to Rudmal Gupta-respon dent No. 2. The petition was admitted and further proceedings in the trial were stayed on 8-5-85. However neither anyone has put in appearance on behalf of respondent "no. 2 nor any counter affidavit has been filed. The petition has, therefore, to be decided on the footing that the averments made in the petition are correct. Rudmal Gupta filed a criminal complaint in the Court of Munsif Magistrate 1st class, Deoria alleging that he was a Salesman of the Century Spinning and Manufacturing. Ltd. Bombay (here in after referred to as the company ). The company carries on business of manufacturing cloth and had three registered trade marks which were bearing registration No. 263595, 263596 and B-57132. The trade mark constitutes of a logo showing a man in kneeling position with a globe above his shoulders on which the word "century" is written. The company used trade mark "century" and man and a globe on all the textile goods manufactured by it and had spent substantial amount in advertisement of the aforesaid trade marks. The company came to know that the accused were selling poplin cloth of inferior quality which con tain the trade mark of "century" and 'man and globe' which is owned by it. The complainant purchased poplin cloth from the shop of the accused on 6-10-83 and a cash memo bearing No. 4382 was issued by the accused. The poplin cloth sold by the accused had not been manufactured by the company but the word "century" and the logo 'man and globe' had been printed over the same. By the aforesaid act, the accused had committed offence under Sec tions 78 and 79 of the Trade and Merchan dise Marks Act. In the complaint, the fol lowing were arrayed as accused: 1. M/s. Associated Textiles, Malaviya Road, Deoria. 2. Unknown persons. The statement of Rudmal Gupta was recorded under Section 200 Cr. P. C. wherein he stated that when he bought poplin cloth from the firm M/s. Associated Textiles, Malaviya Road, Deoria, its sales man Vishwanath was present. He did not mention the name of any other person as accused in his statement. The learned Magistrate took cog nizance of the offence and directed that process be issued against the accused for their prosecution under Sections 78 and 79 of the Trade and Merchandise Marks Act. On 21-11-83 the complainant filed process fee for summoning only one per son as accused namely Vishwanath Prasad, Sales Representative of firm M/s. As sociated Textiles. On 16-4-84 the learned Magistrate passed an order directing the complainant to give the names and ad dress of the proprietor of M/s. Associated Textiles There after on 26-3-85 the com plainant moved and application praying that three accused whose names have been mentioned in the application be sum moned by issuing nonbailable warrants against them. In the application the ac cused were described as follows: 1. Bhagwati Prasad Kedia son of Sri Mahabir Prasad Kedia. 2. Kailash Pati Kedia son of Sri Mahabir Prasad Kedia. 3. Ratan Kumar Kedia son of Mohan Lal Kedia. All of firm M/s. Associated Textiles, Malaviya Road, P. S. Kotwali, Deoria.
(3.) THE learned Magistrate thereafter issued warrants at against the aforesaid three accused to face trial alongwith Vish wanath. It is averred in para 13 of the affidavit that the applicant No. 1 Bhagwati Prasad Kedia is the Director of a company known as Chattish Garh Distilleries (M. P.) and is living in Indore. THE ap plicant No. 2 Ratan Kumar Kedia is carry ing on business of molasses under the name and style of "associated Trading Company" at Calcutta. THE applicant No. 3 Kailash Pati Kedia is carrying on busi ness of leather in the name and style of M/s. Mahabir Leather Board at Durg, M. P. It is further averred that all the three per sons are not connected with the firm M/s. Associated Textiles, Malaviya Road, Deoria. As stated earlier no counter af fidavit has been filed by the complainant-respondent No. 2 to controvert the aforesaid averment made in the affidavit. In the complaint the names of all three persons have not at all been mentioned. In his statement under Section 200, Cr. P. C. the complainant mentioned the name of only one person namely Vishwanath and stated that he was the salesman of M/s Associated Textiles which was described as accused No. 1 in the complaint. In view of the aforesaid facts, there is no justification for summoning the applicants to face trial. There is another aspect of the mat ter which deserves consideration. Section 88 of the Trade and Merchandise Marks Act provides that if the person committing offence under the Act is a company, the company as well as every person in charge and responsible to the company for the conduct of its business at the time of com mission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished ac cordingly. Explanation (a) to this section provides that company means any body corporate and includes a firm or other association of individuals. This section is identical to Section 10 of Essential Com modities Act. In Shayam Sundar and others v. State of Haryana, 1989 (26) ACC 548 (SC), The Apex Court while consider ing the scope and ambit of Section 10 of E. G. Act observed as follows: "the requisite condition is that the partner was responsible for carrying on the busi ness and was during the relevant time in charge of the business. In the absence of any such proof, no partner cold be convicted. Thus where the documents produced by the prosecution do not indicate even remotely that all the partners were doing the business of the firm and there was no other evidence on record on this aspect, it could not be said that when the offence was committed all the partners were conducting the business of the firm. Therefore, they would not be liable for conviction. " The language of Section 88 of Trade and Merchandise Marks Act is similar to Section 10 of the E. C. Act and therefore, the same principle would apply. As ob served earlier, there is no allegation in the complaint and also in the statement of the complainant under Section 200, Cr. P. C. to the effect that the applicants were in-charge and responsible for the conduct of the business of M/s. Associated Textiles, Malaviya Road, Deoria. In absence of any evidence to that effect the prosecution of the applicants is wholly unjustified.;