BRUNDABAN SAHU Vs. B RAJENDRA SUBUDHI

JUDGEMENT

(1.) The petitioner has invoked the inherent jurisdiction of this Court to quash the cognisance taken by the learned Chief Judicial Magistrate, Phulbani in I.C.C. No.48 of 84 against the petitioner for the offence under S.63 of the Copyright Act, 1957 and under Ss.78 and 79 of the Trade and Merchandise Marks Act, 1958. The opposite party filed a complaint alleging that the petitioner is trading in 'Khara Masala' using similar wrapper as that of the complainant and thereby has committed the offence for which cognisance has been taken. On receipt of the said complaint and on examining the complainant, the learned Magistrate came to the conclusion that a prima facie case under S.63 of the Copyright Act and under Ss.78 and 79 of the Trade and Merchandise Marks Act has been established and, therefore, took cognisance summoning the accused to appear before him by 17th July, 1984.

(2.) Mr. Das, the learned counsel for the petitioner submits that the averments made in the complaint petition as well as the initial statement of the complainant taken in entirety do not make out the offence for which the cognisance has been taken and, therefore, this Court should quash the cognisance in exercise of the inherent jurisdiction. Mr. Patra, the learned counsel for the opposite party on the other hand submits that the allegations do not make out an offence and it would be a matter of evidence and, therefore, the proceedings should not be quashed at this stage.

(3.) I would first examine the contention regarding the Copyright Act. Under S.63 of the said Act, infringement or abetting the infringement of the copyright in a work or any other right conferred by the said Act is punishable. S.51 of the said Act reads : -