Criminal Application No. 2692 of 2022 · High Court · 2025

1cri.appln-2692-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL APPLICATION NO. 2692 OF 2022Mr. Naman S/o Ramsunder Jain,Age:-22 Occu: Business,R/o: C/o Viraj Collection, Tilak Road,Nandurbar, Dist: Nandurbar ...PETITIONER-VERSUS-1.The State of MaharashtraThrough Police Inspector,City Police Station, Nandurbard,Dist: Nandurbar.2.Abhay S/o Avinash Pisolkar,Age:-39 yrs, Occ: ServiceArea Sales ManagerR/o. B-302, Vastupuram Society,Sai Satyam Park, Wagholi, Nagar Road, Pune..RESPONDENTS...Mr. B. R. Waramaa, Advocate for the Applicant.Mrs. R. P. Gour, APP for Respondent/State.Mr. A. D. Sonkawade, Advocate for Respondent No.2.…CORAM :SMT. VIBHA KANKANWADI ANDROHIT W. JOSHI, JJ.DATED : 6 JANUARY, 2025, 2024.JUDGMENT (PER ROHIT W. JOSHI, J.) :1.The applicant in the present matter is arrayed as accused No.1 in 2cri.appln-2692-2022.odtFIR No.0231 of 2022 registered on 21/04/2022 with Nandurbar CityPolice Station, District Nandurbar on complaint lodged by RespondentNo.2 for the offence under Sections 63 and 64 of the Copyright Act,1957 (for short ‘the Copyright Act’). 2.The informant respondent No.2 claims to be authorisedrepresentative and signatory of a company named Mohan ClothingCompany Private Limited which according to him proprietor oftrademark and copyright of a brand of readymade garments named‘Blackberrys’. The informant has stated in the FIR that he gotknowledge about readymade garments being sold in Nandurbar underfake label of ‘Blackberrys’ and therefore, he lodged complaint in thisregard with respondent No.1-Police Station. It is mentioned in thecomplaint that the said company is proprietor of trademark andcopyright named ‘Blackberrys’ for its clothing products since the year1991. On the basis of the complaint dated 21.04.2022 aforesaid FIRcame to be registered against the present applicant. Respondent No.1has conducted a search in the shop of the present applicant which isbeing run under the name and style of Viraj Collections at Tilak Road,Nandurbar. 61 shirts having the label ‘Blackberrys’ have been seizedduring the said search from the business premises of the applicant. 3cri.appln-2692-2022.odt3.The applicant has during the course of inquiry made with himstated that he has purchased garments bearing label ‘Blackberrys’ fromone Rohit Multanchand Bothra. Respondent No.1 has recordedstatement of said Rohit Bothra under Section 164 of the Code ofCriminal Procedure, 1973 (for short ‘the Cr.P.C’) wherein, he has statedthat he had purchased the said garments from Ananya Enterprises andsold the same to Viraj Collections, Nandurbar, business undertaking ofthe present applicant. Respondent No.1 has issued notices underSection 41(1)(a) of Cr.P.C. to proprietor of Ananya Enterprises who hasnot responded to the said notices. After completion of the investigationrespondent No.1 has filed final report under Section 173 of the Cr.P.C.on 07.01.2023 vide final report/charge sheet No.02/2022 pursuant towhich R.C.C. No.22 of 2023 (wrongly typed as S.T.C. No.22 of 2023 inthe application) is registered against the present applicant, RohitBothra and Amit Modi.4.We have hear Mr. B. K. Waramaa, learned Counsel for theapplicant who contends that the applicant is a bonafide businessmanwho has purchased the subject articles in due course of business fromaccused No.2-Rohit Bothra under a regular tax invoice by makingpayment of GST. He submits that the transaction is a documented andaccounted transaction. The submission is that the products were 4cri.appln-2692-2022.odtpurchased under a bonafide impression that the same were genuineproducts and the applicant had no knowledge that the productspurchased by him were not original ‘Blackberrys’ products.5.Mr. A. D. Sonkawade, the learned Counsel for respondent No.2argues that whether the transaction between accused Nos.1 and 2 is abonafide transaction without having knowledge of the products beingfake or genuine cannot be decided at this stage and that it felt be amatter of trial. He therefore submits that the present application shouldbe rejected. 6.Mrs. Gour, the learned APP has also advanced submissions onsimilar lines.7.We had posed a query to the learned Counsel for respondentNo.2 with respect to applicability of the provisions of Copyright Act,1957 and definitions of different works for which copyright can beclaimed. Learned Counsel for respondent No.2 initially contended thatthe ‘Blackberrys’ is infact a copyrighted trademark of the said company.He submits that the word ‘Blackberrys’ and image of flying bird answersthe description of ‘artistic works’ as defined under Section 2(b) of theCopyright Act. He therefore submits that the trademark ‘Blackberrys’ isa copyrighted trademark of the said company. Having replied the query 5cri.appln-2692-2022.odtas aforesaid, he turned to his main contention that offence ought tohave been registered under the Trade Marks Act, 1999. He submits thatthe authorized representative of the company/respondent No.1 made acomplaint regarding offence under Sections 103 and 104 of the TradeMarks Act, 1999 and Sections 63 and 64 of the Copyright Act, however,Respondent No.1 has erroneously registered the offence only under theprovisions of the Copyright Act ignoring the provisions of Trade MarksAct although the same are also not attracted in the facts of the presentcase. The alternate submission regarding applicability of Trade MarksAct is infact the main contention raised by respondent No.2 which waspressed with vehemence.8.We have perused label of the ‘Blackberrys’ photographs whereofare a part of the chargesheet. We find that the word is written in simpleregular font in capital letters. The work ‘Blackberrys’ as it appears in thelabels cannot by any stretch of imagination fall within the definition ofthe term ‘artistic work’ as defined under Section 2(c) of the CopyrightAct, 1957. Same is the case of image of a flying bird which forms a partof logo. The said label does not possess any artistic quality or artisticcraftsmanship and it is obviously not a work of architecture. It isobvious that the label does not answer the requirements of a artisticwork as defined under Section 2(c) and therefore provisions of 6cri.appln-2692-2022.odtCopyright Act, 1957 will not be attracted. Offence under Section 63 ofthe Copyright Act is therefore not made out. Respondent No.2 was alsonot very serious about offence under Copyrights Act. Section 64 of theCopyright Act is power of police to seize infringing copies. It is not anoffence defined under the Act.9.We are however of the considered opinion that the ‘Blackberrys’is a trademark and as such the provisions of the Trademarks Act oughtto have been invoked by respondent No.1. Respondent No.2 hasreferred to Sections 103 and 104 of the Trademarks Act. Section 103provides for penalty for applying false trade mark and Section 104provides for penalty for selling goods to which false trade mark isapplied. The allegation against the applicant is that he was selling‘Blackberrys’ products with fake label which is an offence under Section104 of the Trademarks Act.10.In the present case, respondent No.2 had initially carried outsearch and seizure operation in the shop of the present applicant. Theapplicant produced tax invoice disclosing the source of purchase of thegoods. The said source of purchase is verified by respondent No.1during the course of investigation and the source disclosed is found tobe correct. Accordingly, Respondent No.1 could lay hands on Rohit 7cri.appln-2692-2022.odtBothra who is arrayed as accused No.2. The said Rohit Bothra has givena statement under Section 164 of the Cr.P.C on 14.06.2022 before thelearned Judicial Magistrate First Class confirming the fact that he hassold the subject goods to the present applicant. 11.In this factual backdrop we referred to Section 104 of theTrademarks Act which provides penalty for seeling goods to which falsetrademark is applied. Section 104 of the Trademark provides that aperson who sells or exposes for sale or has goods in possession for saleto which false trademark is applied would be liable for punishmentunder the said provision unless (a) he proves that he had taken allreasonable precautions against committing offence under this Sectionand had no reason to suspect the genuineness of the trademark or (b)on demand on behalf of the prosecutor gives all information that hepossess regarding name and other details of person from whom he hasobtained such goods or (c) proves that he had acted innocentlyotherwise.12.In the present case it is clear beyond any doubt that the case ofthe applicant falls within Section 104(b) of the Trade Marks Act. He hasdisclosed genuine source of purchase which is confirmed by prosecutionduring the course of investigation as is apparent from 164 statement of 8cri.appln-2692-2022.odtaccused No.2 dated 14.06.2022. Since the case of applicant falls withinexception (b) of Section 104 he cannot be prosecuted for punished foroffence of selling goods to which false trade marks is applied.13.The applicant has not manufactured the garments on which fakelabel of ‘Blackberrys’ was affixed. Therefore, it can not be said that hehas falsely applied the trade mark ‘Blackberrys’ on the garments or hasfalsified the said trade mark. Therefore, clause (a) and (b) of Section103 read with Sections 101 and 102 of the Trade Marks Act will not beapplicable. The other clauses are not relevant having regard to theallegations. The offence under Section 103(a) and/or (b) can beattributed only to manufacturer or a seller, who is aware about thetrade mark being fake or false. Such are not the allegations against theapplicant. Offence under Section 103 is therefore not made out againstthe applicant. 14.We are therefore in the opinion of that the continuation ofprosecution against the applicant will amount to abuse of the legalprocess as much as provisions of Section 63 of Copyright Act andSections 103 and 104 of Trade Marks Act are not attracted. Hence wepass the following order:- 9cri.appln-2692-2022.odtORDER(i) The application is allowed.(ii) FIR No.0231/2022 registered with Nandurbar City PoliceStation, District Nandurbar and R.C.C, No.22/2023 registeredpursuant to the said FIR are quashed against theapplicant/accused No.1-Naman Ramsunder Jain[ROHIT W. JOSHI] [SMT. VIBHA KANKANWADI] JUDGE JUDGEA.G.Narwade