Sunil Kumar Roy vs Samana Steel Ltd.

R.L. Anand, J.

Shri Sunil Kumar Roy, Senior Research Executive, M/s Surya Roshni Ltd., Padma TowerI, 5Rajindra Place, New Delhi and Shri B.D. Aggarwal, Managing Director, M/s Surya Roshni Ltd., Padma TowerI, 5Rajindra Place, New Delhi, petitioners have filed the present petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India, seeking the quashment of the complaint Annexure P.1 and the summoning order dated 1.7.1995 alongwith the proceedings pending before the court of SubDivisional Judicial Magistrate, Samana, District Patiala under Sections 499, 500 and 107 IPC arising out of the publication dated 25.6.94 in Punjab Kesari on the basis of the interim orders dated 13.6.94 passed by the Hon''ble High Court of Delhi in Civil Suit No. 1315 of 1994 titled ''M/s Surya Roshni Ltd. v. Samana Steel Pvt. Ltd. and others''.

Before I meet with the submissions raised by the learned counsel for the parties during the course of arguments, let me summarise the facts.

M/s Surya Roshni Ltd. filed a suit under the Trade and Merchandise Marks Act, 1958 against M/s Samana Steel Pvt. Ltd. and others. When this suit came up for hearing before the Delhi High Court, the following order was passed :

"Notice for 25.07.94.

Defendants, their servants, agents, and representatives are restrained from selling, offering for sale or dealing with PVC Pipes and Tubes with the offending Mark ''Prakash Surya'' or ''Surya Prakash'' identical or deceptively similar to the trade marks of the plaintiff till further order.

Mr. Manoj Verma, Advocate accepts notice on behalf of the defendants.

Sd/ V.B. Bansal,

13th June, 1994 Vocational Judge"

On the basis of this order passed by the Hon''ble High Court, the present petitioners i.e. the plaintiffs of that suit gave a warning notice which can be translated as follows :

"Warning Notice

Our clients M/s Surya Roshni Ltd. at Padma TowerI, 5Rajindra Place, New Delhi8 are the exclusive owners and proprietors of the Trade Mark "Surya Prakash" in respect of steel pipes, tubes and P.V.C. pipes and tubes and parts thereof under the provisions of the Trade & Merchandise Marks Act, 1958.

Recently our clients have taken action for the infringements of Copyright, Trade Mark, Passing off and rendition of accounts against M/s Samana Steel Ltd. at Patiala Road, Samana and M/s Dewan Chand and Brothers, Cinema Road, Barnala (Pb.) and obtained an injunction order from the Hon''ble Delhi High Court at New Delhi in Suit No. 1315 of 1994 restraining the defendants, their servants, employees or agents and the same are restrained from selling the infringing goods under the trade mark "Surya Prakash".

Public and the traders are hereby warned not to use the trade mark "Surya Prakash" in fraudulent manner; otherwise, we have got specific instructions to take legal action, civil/criminal including police raids as permissible under the law.

(K.L. Aggarwal), (R.K. Aggarwal) and (S.K. Aggarwal), Advocates.

Indian Trade Marks Co., 91Crockery Market, Sadar Bazar, Delhi6."

Thereafter, respondents No. 1 and 2 made an application under JUDGMENT 1 Rule 10 CPC for striking off their name, Annexure P.3, and in this regard it will be useful for me to make a reference of para No. 8 of the said application, where these respondents moved the Delhi High Court that plaintiff (petitioner) had been giving ''Caution Notice in various Newspapers in Panjabi. English translation of one such Caution Notice given in Punjab Kesri; a newspaper edited from Jullundhar was attached therewith as Annexure C. This fact came to the knowledge of the defendant recently (then). Finally it was prayed by respondent No. 1 that his name may be struck off from the list of defendants in which it had been intentionally and improperly added. It may be mentioned here at this stage that while making an application under JUDGMENT 1 Rule 10 CPC respondent No. 1 had nowhere stated that the warning notice issued at the instance of the plaintiff of that suit was harming and defamatory in character.

However, in para No. 9 of the said application an averment was made by respondent No. 1 that plaintiff had issued misleading and deceptive warnings to the buyers of galvanized steel pipes and tubes manufactured by defendant No. 1 and that plaintiff had already adversely affected business of defendant No. 1 by giving much publicity to the injunction order granted by the learned Single Judge vide order dated 13.6.93. On the basis of this application, the Hon''ble Judge of Delhi High Court passed the following orders :

"By this I.A. Defendant No. 1 prays that he be deleted from the array of defendants as Defendant No. 1 as it has been averred in the written statement by this defendant that it is neither capable of manufacturing or marketing any type of PVC pipes, their fittings. In the suit whatever plaintiff has been alleging is that defendant has been using the mark ''PRAKASH SURYA'' and ''SURYA PRAKASH'', identical or deceptively similar to the trade mark of the plaintiff, who has been dealing in the manufacturing and sale of PVC pipes and tubes. Mr. Aggarwal, counsel for the plaintiff, does not object to the IA being granted and Defendant No. 1 being deleted from the array of defendants in view of the averments made in written statement and also para No. 4. of this IA. Since the defendant has stated in clear terms that it is not capable of manufacturing or marketing any kind of PVC Pipes, Tubes and fittings.

In view of the above, Defendant No. 1 is deleted from the array of defendants as the cause against this defendant does not survive. I.A. stands disposed of".

Thereafter respondents Nos. 1 and 2 felt that the last portion of the warning notice, in fact, has been given by the plaintiffpetitioners with a calculated mind in order to harm and injure the reputation of respondents Nos. 1 and 2 and these are defamatory in character and they filed criminal complaint under Sections 499, 500 and 107 IPC in the Court of Ilaqa Magistrate Samana and examined some witnesses by way of preliminary evidence and vide impugned order Annexure P.2, the learned Magistrate summoned the present petitioners under Section 500 IPC to face the trial.

Aggrieved by the said complaint and the summoning order, the present petition which I am disposing of with the assistance rendered by Shri R.S. Cheema, Sr. Advocate assisted by Shri K.L. Aggarwal, Advocate and Shri H.S. Sahwney, Sr. Advocate assisted by Ms. Jasleen Bedi, who gave appearance on behalf of respondents No. 1 and 2.

This Court is well aware of the dictum of Hon''ble Supreme Court in 1992 Crl.L.J. 3779 (Supreme Court) K.M. Mathew v. State of Kerala and another, wherein the following guidelines were issued by the Hon''ble Supreme Court:

"It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused".

But at the same time, the Hon''ble Judges of the Apex Court also laid down that there is no bar to drop proceedings against any of the accused persons, if complaint does not prima facie disclose any offence against him. And in this regard I would like to be supplemented with the observations of the Hon''ble Supreme Court in the celebrated case reported in AIR 1992 Supreme Court 604 : 1991(1) Recent Criminal Reports 383, The State of Haryana and others v. Ch. Bhajan Lal and others, where the following guidelines were given :

"1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of extraordinary powers or inherent powers, quashing of FIR was not justified".

If both the judgments are interpreted and if I am not wrong, there is no contradiction. The order passed by the Magistrate summoning any person as an accused no doubt is a conviction in nature and it is for the accused to convince the Magistrate that the said order can be recalled and that the complaint was nothing but an abuse of the process of law. But if on the face of the allegations of the complaint, this court comes to the conclusion that if nothing is added or subtracted from the allegations of the complaint no offence is made out then as per the dictum laid down by the Hon''ble Supreme Court in AIR 1992 Supreme Court 604, The State of Haryana and others v. Ch. Bhajan Lal and others, the provisions under Section 482 Cr.PC can be certainly invoked.

Now in this context I will have to prima facie see that without entering into the defence whether any offence has been made out under Section 499 or 500 IPC so as to justify the summoning order. Further I have also to see what was the motive behind for the respondent in order to initiate the complaint. I cannot lose sight of the fact that it was the petitioner who pursued the proceedings from the trial Court to the High Court and respondent No. 1 was one of the defendants in the suit filed in the Delhi High Court. So much so the counsel for defendant No. 1 appeared before his Lordship at Delhi High Court and accepted the notice. Keeping in view that background, respondents Nos. 1 and 2 thought proper to file a criminal complaint against the petitioner at Samana so as to drag them from Delhi to Samana.

To proceed further whether ingredients of Section 499 IPC are made out so as to punish an offender under Section 500 IPC, I would like to refer to the provisions of Section 499 IPC as such :

"499. Defamation:

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 1 It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of the person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2 It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3 An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4 No imputation is said to harm a person''s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful".

In order to attract prima facie the provisions of Section 499 Cr.PC, the complainant has to show that either by words either spoken or intended to be read, or by signs or by visible representations, the accused have made or furnished any imputations concerning any person intending to harm or knowing or having reasons to believe that such imputations will harm the reputation of such person.

Reverting to the Warning Notice if I read and interpret correctly the alleged offending portion as contained in para No. 3 which at the cost of repetition I would like to again requote as follows :

"Public and the traders are hereby warned not to use the trade mark "Surya Prakash" in fraudulent manner, otherwise, we have got specific instructions to take legal action, civil/criminal including police raids as permissible under the law".

The above would show that the contents of this notice especially of para No. 3 were general in nature. It was never intended to harm the reputation of respondent No. 2. They were issuing warning in general to all the traders which ultimately might affect respondents Nos. 1 and 2 that they should not use the trade mark of the petitioners in fraudulent manner but it cannot be said that the petitioners have labelled the respondents that they were selling the goods in a fraudulent manner. Assuming for the sake of argument it is taken that the word ''fradulent'' has been used by the petitioners in the said notice, it can still be said that they had a genuine apprehension against those traders who wanted to use the trade name of the petitioner in a deceptive manner. Nevertheless the ingredients of Section 499 IPC will be attracted in the present case.

The learned counsel for the respondents has tried to convince this Court by taking the support from a contempt application moved before the High Court of Delhi submitted before me that on the said application a notice has already been issued to the plaintiffs. Since that matter is before the Hon''ble High Court, this Court cannot and should not comment upon that application because it will be seen by the Delhi High Court itself whether the petitioners have contravened the order dated 13.6.94. This Court is only concerned to a limited question whether the contents of the complaint which have been filed at the instance of respondents Nos. 1 and 2 are such that if they are taken on their face value then the offence under Section 500 IPC as defined under Section 499 IPC is made out or not ? I have already answered this proposition above that prima facie no offence is made out.

In these circumstances, this Court is of the opinion that the complaint Annexure P.1 is an abuse of process of law and has been filed with a vindictive intention in order to harass the petitioners and this Court should certainly invoke the powers under Section 482 Cr.PC.

Resultantly this Court is of the considered opinion that the complaint Annexure P.1 and the summoning order 1.7.1995 cannot sustain in the eyes of law.

In view of above, the petition is allowed. The complaint Annexure P.1 and the summoning order dated 1.7.1995 are hereby quashed and directions are given to the learned Magistrate not to proceed against the petitioners on the basis of the said complaint.