AI Structured Summary
Not yet generated for this judgment
Judgment
Sengottuvelan, J.—This is an application filed by Amrutanjan Limited the Plaintiff in the suit. C.S. No. 296 of 1977 trader Sections 340 and
195, and Sections 196, 199 and 200 of I.P.C.
The facts of the case are briefly as follows: - Amrutanjan Limited, the applicant herein, has a registered trade mark for the sale of pain balm for
the past several years. The said Amrutanjan Limited as Plaintiff has filed the above suit against the Respondents herein for infringement of its trade
mark and praying for permanent injunction, rendition of accounts, damages, etc. The suit has been pending since 1977. In the written statement
filed on 31st December, 1977 the Respondents have stated that they have applied for the registration of their impugned trader mark ''Amrutanjan''
before the Registrar of Trade Marks, Bombay. The relevant para 10 of the written statement may be usefully extracted hereunder:
The Defendant on 15th May, 1963 applied to the Registrar of Trade Marks for the registration of the trade mark Amruthananthan with this device
of Lord Vishnu and the Defendants application has since been accepted for advertisement in the Trade Marks Journal, dated 7th June, 1969 in
respect of Ayurvedic Medical Ointment for external use in the State of Gujarat. The Plaintiff was also intimated of the same by the Registrar of
Trade marks on the same date,i.e. 7th Jane 1969. The Defendants state that as they have been using the name Amrutnathan from 1964. they are
entitled to have their mark registered under the provisions of Section 12 (3) of the Act. The Defendant''s application for registration on the basis of
their honest and concurrent user is pending at the time of institution of the suit. Since the Defendants'' application for registration u/s 12(3) of the
Act is pending, the Defendants state that the trial of the above suit should be stayed pending adjudication of their application for concurrent user
trader Section 12 (3) of the Act.
It is the further contention of the applicant that the application made by the Defendants before the Registrar of Trade Marks in respect of
Amruthanathan is Application No. 319750 and the application was opposed by the applicant under Rule 51 of the Trade and Merchandise Marks
Rules, 1959, in Opposition No. Bombay 3401. The application of the Respondents is still pending hearing and decision under Rule 59. The
Respondents have been taking adjournments from time to time to file their evidence under Rule 54 in support of their application since 30th May,
1979. Finally on 23rd February, 1980 the Trade Mark Registry, Bombay informed the Defendants with information to the Plaintiff''s attorney that
an extension of time upto 22nd March, 1980 has been granted for filing evidence and that no further time will be granted. The Respondents have
not filed their evidence and the matter had to be posted for further hearing.
The applicant further averred that on or about 11th April, 1980, the Respondent (sic) filed application for amending the written (sic) and for stay
of further proceedings in the suit in Application Nos. 1930 and 1943 of 1480, respectively. In the affidavits sworn to in support of the said
application the following statement appears-
In order to safeguard their rights the applicants herein have applied for the registration at their aforesaid trade mark with the Registrar of Trade
Marks under No. 319750 on 27th October. 1976. The said application has been accepted by the Registrar of Trade Marks and the same was
published in Trade Marks Journal No. 688, dated 1st February ,1918 at page 789. After the completion of the statutory period prescribed under
the Act the aforesaid trade mark has been duly registered by the Trade Mark Registry in the name of applicants herein and the said registration is
in force.
The contention of the applicant is that the above statement sworn to by the deponent is untrue and false to the knowledge of the deponent, one of
the partners of the first Respondent''s firm. The contention of the applicant is that the deponent had committed offences u/s 196 (using evidence
known to be false), Section 199 (false statement made in declaration before the court)., and Section 200, I.P.C. (using as true such declaration.
The above offences are covered by Section 195 (i) (b), Code of Criminal Procedure referred to in Section 340 of Code of Criminal Procedure.
It is further averred by the applicant that throughout the proceedings before the Registrar of Trade Marks, Bombay, it is deponent, the second
Defendant and the other five Defendants who have been instructing their Attorney M/s. Mirchandani of Bombay for the declaration. The deponent
knows that the case before the Registrar has not gone through the different stages set out in Rules 54 to 59 and that he has not yet even filed
evidence in support of the application for which he has been taking time from 30th May, 1979. The conduct of the deponent clearly indicates that
he is aware the is swearing a falsehood in the affidavits mentioned above. Hence the applicant prayed for an enquiry u/s 340, Code of Criminal
Procedure and for institution of criminal proceedings against the deponent for offences under Sections 196, 199 and 200, I.P.C.
In the counter affidavit filed by one of the partners of the first Respondent/firm the following averments are made: Application No. 1930 of 1980
in CS No. 296 of 1977 was filed for amending the written statement stating that subsequent to the filing of the suit the Defendants'' trade mark
Amruthananthan was registered under No. 319750. The said application came up for hearing on 21st April, 1980. It is averred that on meeting the
Solicitors of the Respondent it was ascertained that the statement that the trade mark was already registered was factually incorrect and that the
said mark is still under apposition and has not yet been registered. Immediately the counsel at Madras was contacted over phone and was asked
to withdraw the application. Accordingly the said application was withdrawn on 21st April, 1980. Thereupon the adjournment of the suit was
refused and the counsel for the Respondents reported no instructions. The suit was decreed ex parte and the Respondents have also filed an
application to set aside the ex parte decree.
The statement in Application No. 1930 of 1980 was made bona fide without any intention to suppress any facts. The deponent was under the
bona fide impression that the said trade Mark has been registered subsequently just like the associated mark which has been registered under No.
285693 as both the marks appeared in the Trade Marks Journal. It is a bona fide mistake and as already stated, as soon as the deponent was
informed about the mistake steps were taken to withdraw the application for amendment. Registration is a matter which can be easily verified and
no one will make false statement intentionally in this regard. The Respondents did not commit any offence under any of the provisions of the Indian
Penal Code. The statement made was as a result of the bona fide mistake without any intention to deceive anyone.
The deponent also tendered unconditional apology on behalf of himself and on behalf of the other partners of the Defendant firm. The
Respondents therefore prayed for the dismissal of the application.
The point for determination in this application is whether it is expedient in the interest of justice that an enquiry should be made into the matter
and a complaint instituted under the provisions referred to above.
The facts and the circumstances leading to the filing of the above application are relevant for coming to a conclusion whether this is a fit case
where this Court should direct the institution of criminal proceedings as prayed for.
The applicant M/s. Amrutanjan Limited had filed the above suit complaining about the infringement of its trade mark and asking for necessary
reliefs. In the written statement the Respondents/Defendants contended that on 13th May, 1968 they applied to the Registrar of Trade Marks for
the registration of the trade mark Amruthananthan with the device of Lord Vishnu and the Respondent''s application had been accepted for
advertisement in the Trade Marks Journal, dated 7th June, 1969 in respect of Ayurvedic Medicinal Ointment for external use in the Stale of
Gujarat. They have also stated that they have been using the name Amruthanthanjan from 1964 and that they are entitled to have that trade mark
u/s 12 (3) of the Trade and Merchandise Marks Act, 1958. Since that application for registration of trade mark on the basis of their honest and
concurrent user is pending at the time of institution of the suit the Respondents prayed for the stay of the suit. Subsequent to the filing of the written
statement the Respondents came forward with an Application No. 1930 of 1980 alleging that the trade mark Amruthanthanjan has been
subsequently registered and for amending the written statement to that effect and praying for the stay of the suit. The relevant averment in support
of the said application which had given rise to these proceedings are as follows:
In order to safeguard their rights the applicants herein have applied for the registration of their aforesaid trade mark with the Registrar of Trade
mark under No. 519750 on 27th October. 1976. The said application has been accepted by the Registrar of Trade Marks and the same was
published in the Trade Marks Journal No 688, dated 1st February. 1978 at page 789. After the completion of the statutory period prescribed
under the Act the aforesaid trade mark has been duly registered by the Trade Marks Registrar in the name of the Applicants herein and the said
registration is in force.
Late in the same affidavit it is averred that in view of this the Plaintiff is not entitled to claim any of the reliefs since one registered proprietor cannot
sue another registered proprietor in law. The application to amend the written statement was called along with the suit on 21st April, 1980. The
application for amendment of the written statement was not pressed. On 30th April, 1980 the Respondents''/Defendants'' counsel reported no
instruction and the suit was decreed ex parte.
Subsequently an application to set aside the ex parte decree was filed and the ex parte decree was set aside and the further proceedings are being
continued. In the affidavit in support of the above application it is stated on behalf of the applicant that the averment in the affidavit was made
falsely and that there was no such registration of trade mark and that the proceedings were only pending and the said averment was made with a
view to mislead the court and secure the dismissal of the suit. The case of the applicant is that the Respondents have committed offences we fifer
Sections 196, 199 and 200, I.P.C., covered by Section 195 (1) and 195 (1) (b), Code of Criminal Procedure, referred in Section 340, Code of
Criminal Procedure.
Having understood the facts we will have to examine the provisions of law enabling this Court to institute proceedings for making false
averments in the affidavit filed before the Court. Section 340, Code of Criminal Procedure, refers to the procedure to be adopted for cases
mentioned in Section 195 Code of Criminal Procedure, It enjoins on the court to conduct a preliminary enquiry and record a finding and direct the
making of a complaint before the Magistrate having jurisdiction. Section 195, Code of Criminal Procedure provides for the laying of a complaint in
a criminal court having jurisdiction by the court before which an offence punishable under Sections 193 to 196, 199, 200, 205, to 211 and 228,
I.P.C., has been committed The offences in the Indian Penal Code enumerated u/s 195, Code of Criminal Procedure are detailed below:
SectionContent of the offence
in
I.P.C.
193 Intentionally giving false
evidence or fabricating
false evidence for use in
a judicial proceeding.
194 Giving or fabricating
false evidence with
intent to procure
conviction of capital
offence.
195 Giving or fabricating
false evidence with
intent to procure
conviction of offence
punishable with
imprisonment for life or
imprisonment for a term
of seven years, or
upwards.
196 Using evidence known
to be false.
199 False statement made,
in declaration which is
by law receivable as
evidence.
200 Using as true such
declaration knowing it
to be false.
We are not concerned with Sections 205 to 211 and 228, I.P.C., since the same are not concerned with the matter in question. The applicant
herein tries to bring this case under Sections 196, and 200, I.P.C. In the case reported in Baban Singh and Another Vs. Jagdish Singh and Others,
, the Supreme Court held that filing of an affidavit in the High Court denying the receipt of money by way of compromise in the first appeal after
actually receiving the money is an offence falling under Sections 191 and 192, I.P.C., and punishable u/s 193, I.P.C., rather than u/s 199, I.P.C.
The contention of Mr. U.N.R. Rao, learned Counsel appearing for the applicant is that even though Sections 196,199 and 200 are mentioned
in the application yet this application can be construed as one falling u/s 192, I.P.C., punishable u/s 195, I.P.C., as observed by the Supreme
Court in the above decision and dealt with accordingly. Since under inherent powers this Court can apply the correct section in spite of a mistake
by oversight made in the application there can be no objection in considering this application as if one tiled u/s 192, I.P.C., punishable u/s 193,
I.P.C.
There are two sets of provisions in the Criminal Procedure Code:-one for dealing with the false evidence given on oath before court in a
proceeding and another for fabricating false evidence for the purpose of producing into court. Section 344 of the new Code of Criminal
Procedure, which corresponds to Section 479-A of the Old Code of Criminal Procedure, provides for a summary procedure (sic) against any
person who has intentionally given false evidence at any stage of a judicial proceeding or has intentionally fabricated false evidence for the purpose
of use at any stage of the proceedings by directing the institution of a complaint at the time of delivery of judgment. This section is intended to
punish the offenders for actually giving false evidence before court, in which case the court can make up its mind even during the delivery of
judgment and direct the institution of a complaint. But Section 344, (31) Code of Criminal Procedure, provides that if the court does not choose to
proceed u/s 344, Code of Criminal Procedure, it can proceed u/s 349, Code of Criminal Procedure also.
Section 340, Code of Criminal Procedure, relates to an offence committed in respect of a document produced or given in evidence in a
proceeding in a court. The procedure laid down in this section is that the court is to make a preliminary enquiry and then record a finding to that
effect and direct the institution of a complaint. As per the case cited above the present case will come u/s 340, Code of Criminal Procedure since
the offence is one relating to Section 192 punishable u/s 193, I.P.C.
We will have to consider whether the facts in this case justify the issue of a direction for the institution of a complaint u/s 340, Code of Criminal
Procedure A preliminary objection is taken by the learned Counsel for the Respondents on the ground that only an affidavit in support of the
application was filed and such an affidavit will not amount to evidence in the case and hence Section 340, Code of Criminal Procedure is not
attracted in this case. In support of his contention a case reported in Mithailal Gupta Vs. Inland Auto Finance and Others, is relied upon. In the
said case in a suit for accounts in respect of the hire purchase agreement the Defendant prayed for the stay of the suit on account of the existence
of an arbitration agreement by means of an application. The Division Bench of the Madhya Pradesh High Court held that the trial court is bound to
either record oral evidence or order the particular fact to be proved by affidavit and in the absence of such order an affidavit in support of an
application is not evidence. In other words as per the view expressed in the above decision an affidavit filed in a proceeding cannot be considered
to be the evidence unless it is directed to be filed by the court to prove any fact in issue by means of an affidavit. The principle laid down in the
above case cannot be applied to the facts of the present case since u/s 192, I.P.C., any person who makes any document containing a false
statement, intending that such false statement may appear in evidence in a judicial proceeding is punishable. For the same proposition the learned
Counsel for the Respondent relied upon another case reported in Parekh Brothers Vs. Kartick Chandra Saha and Others, , where a Division
Bench of the Calcutta High Court expressed the view that an affidavit per se does not become evidence in the suit, but it can become evidence
only by consent of the parties or if it is specially authorised by a particular provision of law. This is because by virtue of Section 1 of the Evidence
Act, the Act applies to judicial proceedings in or before any court ""but not affidavit presented to any court ox officer."" Affidavits are not even,
included in the definition of evidence in Section 4. Consequently affidavits cannot be used as evidence under any of the provisions of the Evidence
Act. They can be used, as evidence only under Order 19 of Code of Civil Procedure. This case also cannot help the Respondents since the
impugned document need not even be used as evidence to attract the provisions of Section 192, I.P.C. In the case reported in Ramalingam, In re,
ILR 1964 Mad. 845: 78 L.W. 244 a Division Bench of this Court has held that filing of a false affidavit is liable to be proceeded against under old
Section 476 corresponding to Section 340 of the new Code of Criminal Procedure. Hence the preliminary objection raised by the Respondents
that action u/s 340 Code of Criminal Procedure, cannot be taken in respect of an affidavit filed before the court will have to be overruled.
We will have to see whether the institution of a criminal complaint as contemplated in Section 340, Code of Criminal Procedure, is called for in
this case. As per Section 340, Code of Criminal Procedure, if the court is of the opinion that it is expedient in the interest of justice that enquiry
should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, I.P.C., which appears to have been committed in or
in relation to a proceeding in that court or in respect of a document produced or given in evidence in a proceeding in that court, the court may after
making preliminary inquiry record is finding to that effect and direct the institution of a complaint. In order to proceed u/s 340, Code of Criminal
Procedure., it should be expedient in the interest of justice.
In order to consider whether it is expedient in the interest of justice the court must consider whether an offence u/s 192, I.P.C., is prima facie made
out and even if it is made out whether it is a just case for the institution of a proceeding u/s 340, Code of Criminal Procedure.
Section 192, I.P.C. reads as follows:
Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement,
intending that such circumstance, false, entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law
before a public servant as such, or be fore an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence may
cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to
the result of such proceeding, is said to fabricate false evidence.
In order to attract Section 192, I.P.C., the person concerned must have intended that the false document made by him should appear in evidence
in a judicial proceeding. The intention has to be inferred from the several circumstances that appear in this case. The Respondents no doubt filed an
affidavit in support of the Application Nos. 1930 and 1940 of 1980 alleging that the trade mark had been registered. But subsequently before that
affidavit was considered by this Court for the reliefs prayed for, viz., amendment of the written statement ,he had made an endorsement that he
may be permitted to withdraw the application. In the counter he states that by bona fides mistake he mentioned that his trade mark had been
registered and on coming to know that such a trade mark bad not been registered be had not pressed the application. Taking into consideration the
conduct of the Respondents and the circumstances in the case it cannot be said that the Respondent had acted with mens rea which should be
present to warrant an action u/s 340, Code of Criminal Procedure. In the case reported in Jotish Chandra Chaudhury Vs. State of Bihar, , the
Supreme Court observed as follows:
One of the ingredients of an offence u/s 200, I.P.C., is that the declaration should be used or attempted to be used corruptly. It has not been
explained to us how the declaration was used ''''corruptly"". Considering that the date of birth was obtained from the school records and that the
Appellant stood to gain no advantage by giving a wrong date, the learned Judge should not, in our view, have directed lodging of complaint u/s 199
or 200, I.P.C. From the observation of the Supreme Court it is seen that the question whether the affidavit is used to achieve the result
contemplated is also a criterion in coming to the conclusion whether a direction for prosecution u/s 340, Code of Criminal Procedure, will have to
be issued. In this case though there is a filing of the affidavit in support of the application, long before the same can be considered and acted upon
the Respondents bad withdrawn the said application. This is also one of the elements to be considered in coming to the conclusion whether a
direction for prosecution is warranted.
In the case reported in K. Karunakaran Vs. T.V. Eachara Warrier and Another, the Supreme Court observed that two pre-conditions are
necessary for laying a complaint u/s 340, Code of Criminal Procedure. The two conditions being (1) that the materials produced before the High
Court make out a prima facie case for a complaint, and (2) it is expedient in the interest of justice to permit prosecution u/s 193, I.P.C. In the
course of the judgment the Supreme Court observed that the making of a mere false statement is not enough and it has to be made intentionally
.On the facts of the present case taking into consideration the conduct of the Respondents in withdrawing the application even before the matter
was taken up for consideration it cannot be said that he had acted intentionally in making the impugned statement in the affidavit. There is no other
incriminating circumstance to show that the Respondents had acted intentionally in making the statement. The applicant had not shown any
circumstance to disbelieve the version of the Respondents that the statement was made as a result of the bona fide mistake and that they had
corrected it as soon as they came to know the mistake. To show that the mistake is bona fide the Respondents had filed two documents in
Application No. 1426 of 1983 and the same ate directed to be marked as Exs. R1 and R2. Ex. Rl is the certificate of registration relating to the
trade mark of Amruthananthan, dated 31st January, 1973. Ex.R2 is the certificate issued by the Registrar of Trade Marks to show that the trade
mark ""Atmamahanthan"" had been Registered under the Trade and Merchandies Marks Act, 1958. These documents also support the version of
the Respondents that the averments in the impugned affidavit were made mistakenly referring to the registration of ""Amruthananthan"". This again
goes to show that the averments in the affidavit cannot be said to be made intentionally.
The entire circumstances judged in that light of the observations of the Supreme Court in the decision cited above, show this is not a fit case
where it is expedient in the interest of justice to issue a direction for making a complaint u/s 340 , Code of Criminal Procedure. There are no merits
in this application and the same is dismissed. However there will be no order as to costs.