NITESH WADHWANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this petition filed under Article 226 of the Constitution of India and under section 482 of the Code of Criminal Procedure (for short, "the Code"), the petitioners have, inter alia, prayed for quashing of the proceedings in MECR No. 16 of 2006 registered by Azad Maidan Police Station, Mumbai, pursuant to an order dated 9/8/2006 passed by the Chief Metropolitan Magistrate, Esplanade, Mumbai in Case No. 33/iandr/06 and stay of the said proceedings pending disposal of the petition.

(2.) RESPONDENT 2 (for convenience, "the complainant") claims that since the year 1961, it is doing the business of supari, gutkha, tobacco, etc. under the trade mark "manikchand". According to respondent 2, the petitioners are selling their products by adopting and using their mark "malikchand" which is deceptively similar to the complainant's trade mark "manikchand". The complainant has, therefore, filed Suit No. 574 of 2004 in this court for an order of injunction restraining the petitioners from using the trade mark "manikchand". The said suit is pending.

(3.) THE petitioners have also filed Civil Suit No. 8-A of 2004 in the District Court of Mandaleshwar, Madhya Pradesh (for convenience "mandaleshwar Court") for a declaration that the complainant does not have any right to sell panmasala, gutkha, tobacco, etc. under the trade mark "manikchand" which is deceptively similar to the mark "malikchand" used by them and for a perpetual injunction restraining the complainant from dealing in and selling the said articles under the said mark "manikchand". Admittedly, on 7/3/2007, the Mandaleshwar Court has partly decreed the said suit. It has declared that the complainant does not have any right to sell its product under the name and trade mark "manikchand". It has restrained the complainant by an order of permanent injunction from selling its products under the trade mark "manikchand". It has returned a finding that the petitioners are doing the business of panmasala, gutkha, tobacco, etc. under the trade mark "malikchand" since 1959-60.