VINOD K.SHARMA,J. - (1.) THIS is a petition under Section 482 of the Code of Criminal Procedure for quashing of FIR No. 100 dated 1.12.2004 registered under sections 101/102/103/104 of the Trade Marks Act, 1999 at Police Station Division No. 3, Ludhiana. FIR registered against the petitioner reads as under :- " The Senior Superintendent of Police, Ludhiana. Sub : Application for obtaining Legal opinion from some senior Law Officer in the matter. Respectfully Showeth :- That the petitioner is partner of M/s Ambika Pharmacy 5265 Anand Nagar, Haibowal Kalan, Ludhiana which is registered proprietor of SURMI Tone. That as Kanwal Kishore Jain and others were misusing the product of the complainant by claiming that their the product is also registered with Registrar of trade Mark which in fact was not so. The petitioner filed the application before your honors which was entrusted to the SHO Div. No. 3 who conducted the enquiry in detail, submitted the report (copy of complaint is attached herewith). That Sh. Mohan Lal DSP verified that report at length and agreed to it. During the investigation of documentary evidence for get notice of Trade mark which proves that the product of the accused which they alleged to be registered were submitted before the SHO and DSP and from the oral evidence and as well as from the documentary evidence a clear case u/s 420, 467, 468, 471 read with section 120-B IPC and u/s 78/79 of Trade and Merchandise Act was made out to this effect. Sh. Mohan Lal DSP City-I made a detailed that prima facie criminal was made out against the accused. He also sought that the legal opinion from DA. (L) Ludhiana that D.A. Legal without going through the oral evidence and documentary evidence has made a report that the matter is for civil matter and no case is made out which is altogether wrong and misconception of fact and law. That if your honour go through the facts of the case oral evidence and documentary evidence your honour will find that a clear cut criminal case is made out against the accused. So it is requested that opinion of senior law officers may kindly be obtained and the complaint be decided accordingly. Sd/- petitioner Sandeep Kumar Partner of M/s Ambika Pharmacy, 2565 Anand Nagar, Haibowal Kalan Ludhiana Date October 15, 2004."
(2.) MR . H.S. Gill, learned senior counsel appearing on behalf of the petitioner has sought quashing of the FIR and subsequent proceedings on the plea that registration of the FIR and subsequent proceedings are nothing but misuse of the process of the court. Petitioner Kamal Kishore Jain is the partner of M/s Surma Kanwal Nain Pharmacy, Shish Mahal, Hoshiarpur. The firm is established and reputed manufacturer and trader of Ayurvedic medicinal preparations comprising of products of 'SURMA', 'SURMI' 'KAJAL' AND 'EYE DROPS" for treatment of eyes disease and as eyes salves since 1937-38 under the name and style of M/s SURMA Kanwal Nain Pharmacy. This firm was established for more than 65 years ago by Shri Shanti Lal Jain, father of the petitioner.
(3.) IT is further claimed that ever since that period i.e. 65 years, the petitioner's firm has been makings extensive sale of its products. It has been widely accepted in the public and its clients for its high quality and superior Ayurvedic medicinal effects. The-products being manufactured and sold by the petitioner's firm have been in the shape of SURMA, SURMI, and eye drops in respect of the eyes disease and eyes salve. The said words SURMA, SURMI, and eye drops are descriptive words used, to describe the nature of the product. The petitioner's firm has also been selling other products comprising of Balm, Churran and Manjan etc. as Ayurvedic preparations. It is contended that petitioner's firm has been selling its products by adoption and use of the trade Marks Kanwal and Kanwal Nain with and without the use of the word SURMA, and/or SURMI as suffix and prefix. Inasmuch as that the products being manufactured and sold by the firm of the petitioner are Kanwal Nain, SURMI, Kanwal Nain SURMA, Kanwal Nain Eyes drops, Kanwal Nain Hajma Churan, Kanwal Nain Manjal, Kanwal Dard Nashik Bam, Kanwal Gulab Jal and the products of the firm of the petitioner are being sold extensively under the aforesaid Trade Marks, in which the Trade Mark Kanwal and/or Kanwal Nain is prominently used and displayed, whereas the other words as suffix/prefix thereof are the words of descriptive nature.;