KULWINDER SINGH Vs. STATE

JUDGEMENT

(1.) Vide the present petition, petitioners seek direction thereby to set aside impugned judgment and orders dated 23.11.2016 passed by learned CMM-02, Central District, Delhi in case No.294814/16 and discharge the petitioners in case FIR No.394/2005 registered at Police Station Kotwali.

(2.) The brief facts of the case are that the respondent no.2 on 01.07.2005, filed a complaint against unknown persons, despite the fact that earlier Respondent no.2 had obtained interim injunction dated 12.02.2002 against Petitioner no. 1 before this Court in Civil suit no. 1256/2002 and even they had lodged an FIR on same and similar cause of action dated 08.01.2004, being FIR No.3 against Petitioner no. 1 and Ors. under Section 420/486 IPC and under sections 78/79 of The Trade Marks Act and under sections 63/64/68-A of The Copyright Act, registered at Police Station Division no. 6, Ludhiana. In pursuance of the said complaint dated 01.07.2005, process of search and seizure was issued against the Petitioners, and the goods of petitioners were seized. Thereafter, cancellation was filed by the prosecution /respondent no.1 on 26.09.2006 and not being satisfied with the same, the director of respondent no.2 M/s B M Metal Works Pvt. Ltd filed a protest petition against the petitioners. The petitioners have been contesting the said complaint and proceedings therein primarily on the ground that the complaint was actuated with malafide and malicious intent and was replete with abuse of process of court for various reasons such as that no criminal prosecution of the petitioners could take place in the first instance under The Trademarks Act and The Copyright Act, as the wrappers and goods of the petitioners were duly registered and were separate and distinct than the goods of the complainant. Further, the complaint filed on 01.07.2005 was time barred, as the maximum punishment in these offences was three years, whereas the limitation for invoking the process of court was also three years. In this case, the complainant having filed a Civil Suit in February 2002 and was well aware of the wrappers of the petitioners, yet, he chose to file the instant complaint against unknown persons only on 01.07.2005. Moreover, the complaint was maliciously filed against some unknown persons allegedly 'fly by night operators', yet, allegations were made only against the petitioners and only the goods of the petitioners were recovered with malicious intent. Not only this, the complainant had already lodged another FIR against the petitioner no.1 and others in Ludhiana, in which the petitioner no.1 had already undergone trial. The trial court had acquitted the petitioner no.1 and Ors., but the sessions court erroneously remanded the case back, against which the High Court of Punjab and Haryana, at Chandigarh has granted stay of the order. Thus, present complaint was clearly an abuse of process of court and the proceedings against the petitioners could not continue.

(3.) Learned counsel appearing on behalf of the petitioners submits that the complainant had falsely implicated on the infringement of his alleged copyright pertaining to 'Ball Head Racer and Screw Racer Packaging', whereby the complainant had otherwise wrongly and falsely claimed that the petitioners has indulged in passing off his trade mark and copyrights, which were registered by the complainant.