ANIL KUMAR SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under Sections 397 and 401 of the Code of Criminal Procedure filed by die petitioner who is the informant of a criminal case bearing Patna city Chowk Police Station Case No. 135/90 for setting aside the order passed by the Additional Chief Judicial Magistrate, Patna city dated 10.9.1993.

(2.) FOR proper appreciation the case of the petitioner in short is that he is manufacturing the buckets in the name of M/s Bihar Galvanising Works, Simili, Patna city with figure of Elephant and this was duly registered under the Copyright act bearing Registration No. A 131718/83. It was found that the Opposite Parties Nos. 2 and 3 who are running hardware shop, namely M/s Kamal Enterprises Hardware were found selling the buckets of Elephant brand which was manufactured by New Calcutta Industry, Kanpur and F.I.R. was lodged on 7.8.1980 under the Copyright Act and Trade Mark Merchandise Act and also under the Indian Penal Code. The main allegation is mat the accused persons had no right to manufacture or sell the buckets or elephant brand for which Copyright was obtained earlier by the informant petitioner. The police instituted the case bearing No. Patna city Chowk P.S. Case No. 135/90 and after searching some buckets were seized from the premises of the accused person but after completing the investigation the police in collusion with the accused persons and the proprietor of New Calcutta Bucket Industries, Kanpur submitted final report alleging therein that it is a case of mistake and no case is made out. It is also alleged that prior to the submission of the final report the informant petitioner suspected that the police in collusion with the accused persons filed a protest cum complaint petition which was kept on the record and the learned Additional Chief Judicial Magistrate, Patna city vide order dated 10.9.1993 without properly considering the materials on the record rejected the protect cum complaint petition and accepted the final report.

(3.) OPPOSITE party Nos. 2 and 3 were admittedly accused in the aforesaid police case instituted by the petitioner entered appearance and filed a counter affidavit and virtually admitted that they were selling the buckets of elephant brand but actually these bucket were manufactured by M/s New Calcutta Bucket Industries, Kanpur after obtaining proper copyright and this firm also obtained order of Injunction in O.S. Case No 1154/90 by a Civil Court of Kanpur declaring that the trade mark of this firm is valid and this firm has right to use the trade mark. It was also submitted that in view of this injunction order of Civil Court, Kanpur no offence is made out as alleged by this petitioner informant and the earlier criminal case instituted in the year 1989 in which the cognizance of the offence was also taken is also pending before this Hon'ble Court in revision matter where the further proceeding is stayed. Accordingly it is the case of the Opposite party Nos. 2 and 3 and this revision application is frivolous and liable to be rejected.