ZAHIR AHMED Vs. AZAM KHAN
HIGH COURT OF CALCUTTA
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(1.)By this Revisional Application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as Code) the Petitioner Accused, Zahir Ahmed, has prayed the Court for quashing of the relevant Proceedings/investigation in G.R. Case No. 1000 of 1994, arising out of Section "K" Calcutta Case No. 255 dated 22-4-1994, for the reasons stated and on the grounds made out therein.
(2.)The Opposite Party No. 1-complainant-Azam Khan (hereinafter referred to as complainant) had filed the relevant petition of complaint before the Additional Chief Metropolitan Magistrate at Calcutta (hereinafter referred to as learned Magistrate) on 22-4-1994 on the allegations made therein against the accused for the alleged offences punishable under Ss. 78 and 79 of the Trade and Merchandise Marks Act, 1958 and S. 63 of the Copyright Act, 1957, read with Sec. 420 of the Indian Penal Code, and had prayed before him (learned Magistrate) for directing the Deputy Commissioner of Police, Enforcement Branch, Calcutta, to investigate the case in terms of S. 156(3) of the Code by treating the petition of complaint to be the F.I.R. of the case. From the Annexure-B to the Revisional Application, being the xerox copy of the certified copy of the aforesaid petition of the complaint, it would also appear that the learned Magistrate on the same very day (22-4-1994) had directed the O/C., Enforcement Branch, to investigate the case under S. 156(3), Cr. P.C. and treat the petition of complaint as F.I.R.
(3.)The allegations made by the complainant in the petition of complaint (hereinafter referred to as F.I.R.) may shortly be stated as follows :
The complainant's company is well-known manufacturer, blender and dealer in Hooka Tobacco Paste, which is commonly known as 'Jurak' in Saudi Arabia. One of the Trade Marks under which he markets such goods is the Trade Mark Six Sheesh (six hooka). the said Trade Mark with Six Sheesh (six hooka) container and get-up are well-known in Saudi Arabia. He is using the said Trade name/brand/design and also the get-up of the containers since 1992 and the entire production is earmarked for and sold and exported to Saudi Arabia. It was found on 21-4-1994, and subsequently ascertained that the accused had imitated the tin container which was being used by the complainant and were proposing to export their goods in such tin containers which were manifestly colourable imitation of his (complainant's) tin containers. Further enquiries had revealed that the accused and his servants/agents/employees were determined to use the similar tin containers using the same/similar and/or deceptively similar trade name, design and pictorial impression in order to pass such goods as if those were manufactured by the complainant's company. One consignment consisting of a container load valued at Rs. 5.00 lacs approximately was proposed to be exported from Saudi Arabia by the accused, which could cause irreparable loss,. prejudice and detriment to him (complainant). By asking for Six Sheesh brand customers at Saudi Arabia obviously refer to Six Sheesh (six hooka) Trade Mark owned by the complainant's company. The accused, with full notice and knowledge of the aforesaid circumstances, have purported to imitate the complainant's brand name/trade name/design by using Six Sheesh (six hooka), and the buyers of Jurak in Saudi Arabia would not be able to distinguish between the said trade name/design of the complainant's company and the colourable imitation thereof containing inferior quality of 'Jurak' of the accused.
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