MAHESH MISHRA Vs. MUNISH GUPTA

JUDGEMENT

(1.) The only short question that arises for consideration in the present petition is whether accused person is entitled in law to lead defence evidence in a private complaint case before framing of charge against him. Briefly stated the facts of the case giving rise to the above question are that the petitioner was the complainant before the trial court and he had filed a private complaint under Section 200 of Code of Criminal Procedure for offence under Section 103 of Trade Marks Act, 1999 and had alleged infringement of his registered trade mark "G-5" in relation to educational institution run by him and it was alleged that respondents No. 1 to 5 by using the trade mark "G-5 Gwalior" in relation to educational institution run by them have committed an offence punishable under Section 103 of Trade Marks Act, 1999. After pre-summoning evidence was produced by the petitioner being the complainant, cognizance was taken' by the trial court against respondents No. 1 to 5 and they were summoned for offence under Section 103 of Trade Marks Act, 1999. There is a controversy between the complainant on one hand and respondents No. l to 5 on the other hand regarding infringement of trade mark in question. The use of trade marks "G-5" by the petitioner and "G-5 Gwalior" by respondents No. 1 to 5 is not in dispute. After respondents No. 1 to 5 were summoned by the trial court after taking cognizance against them, the witnesses examined by the petitioner/complainant in pre-summoning evidence were cross-examined on their behalf. However, respondents No. 1 to 5 were aggrieved by their summoning by the trial court and had filed a petition under Section 482 of Cr.P.C. for quashing of criminal proceedings on the private complaint instituted by the petitioner against them and the said petition filed by respondents No. 1 to 5 was finally disposed of by this court vide its order dated 11th May 2010 with the directions to the trial court to consider the following points before framing of charge:

(2.) The need for the petitioner to file the present petition arose because respondents No. 1 to 5 intend to lead evidence in their defence to establish that they have not infringed the trade mark of the petitioner/complainant as alleged by him in his complaint. Respondents No. 1 to 5 have been permitted by the trial court vide order impugned in the present petition to lead their evidence in defence on the aforementioned points, which were ordered to be considered by this court vide its order dated 11th May 2010 in M.Cr.C.No. 2914/10. The said order of the trial court permitting respondents No. 1 to 5/accused persons to lead their evidence in defence before framing of charge has also been affirmed by the sessions court in exercise of its revisional jurisdiction. It appears that respondents No. 1 to 5 have been permitted to lead their defence evidence before framing of charge under some misconception misconstruing the earlier order of the High Court as if the trial court has been directed by this court to take evidence on the points formulated in its earlier order dated 11th May 2010 extracted herein above.

(3.) Shri Atul Gupta, learned counsel appearing on behalf of respondents No. 1 to 5/accused persons has referred to para 21 and 22 of the judgment of the Hon'ble Supreme Court in Rukmini Narvekar Vs. Vijaya Satardekar and others, 2008 14 SCC 1 and has contended that in terms of the judgment of the said court, it is open to the trial court to take defence evidence before framing of charge. This argument advanced on behalf of respondents No. 1 to 5 is misplaced and is not borne out from the judgment on which reliance is placed on their behalf. What is held by the Hon'ble Supreme Court in the aforementioned judgment is that in very rare cases the defence material can be looked into by the trial court at the time of framing of charge or taking cognizance. Firstly, the Supreme Court has said that the defence material can be looked into by the trial court at the time of framing of charge or at the time of taking cognizance only in very rare cases and not as a matter of routine. Secondly, the observation of the Hon'ble Supreme Court that the trial court can look into defence material in very rare cases does not mean that the trial court as a matter of course has to give an opportunity to the accused persons to lead their evidence in defence before charge is framed against them. Giving an opportunity to the accused persons to produce documents in their possession which they may seek to rely in their defence before framing of charge is altogether different from permitting them to examine their witnesses and thereby lead evidence in their defence before charge is framed against them. The accused persons can have an opportunity to lead their evidence in defence only in the event charge is framed against them and after the complainant would close his evidence.