Rajkumar Sabu vs M/S Sabu Trade Private Limited on 7 May, 2021


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Supreme Court of India

Rajkumar Sabu vs M/S Sabu Trade Private Limited on 7 May, 2021

Author: Aniruddha Bose

Bench: Aniruddha Bose, Krishna Murari

                                                1


                                                                  REPORTABLE


                             IN THE SUPREME COURT OF INDIA
                             CRIMINAL ORIGINAL JURISDICTION


              TRANSFER PETITION (CRIMINAL) NO. 17 OF 2021


         RAJKUMAR SABU                                        ..PETITIONER


                                               VERSUS


         M/S SABU TRADE PRIVATE LIMITED                       ..RESPONDENT




                                           J U D G M E N T

ANIRUDDHA BOSE, J.

The present proceeding arises out of a case

instituted by the respondents, Sabu Trade

Private Limited invoking jurisdiction of the

Court of Judicial Magistrate No. IV, Salem (the
Signature Not Verified

Digitally signed by
NEETU KHAJURIA

Salem Court) under Section 156 (3) of the Code
Date: 2021.05.10
16:04:44 IST
Reason:

of Criminal Procedure, 1973. By filing the
2

present application under Section 406 of the

1973 Code, the petitioner wants the case to be

transferred to the Court of the Chief Judicial

Magistrate, Patiala House Court, New Delhi. The

allegation of the respondents in the said case

is over use of the trade mark SACHAMOTI in

respect of sago or sabudana by Rajkumar Sabu

(the petitioner). According to the respondents,

such use is illegal and unauthorised. The

Respondents claim proprietary right over the

said trade mark. The complaint was instituted

on 22nd May, 2017. The Judicial Magistrate,

Salem (Salem Court in short), had required the

police authorities to conduct a thorough

enquiry with regard to genuineness of the

private complaint and a report was filed by the

concerned Inspector of Police. The case was

registered as CC No. 82/2018 on 5th April,

2018. The Judicial Magistrate took cognizance
3

of the alleged offences under Sections 420 of

the Indian Penal Code and 103 of the Trade

Marks Act, 1999 and issued summons to the

petitioner. The proceeding before the Court at

Salem was instituted by the respondents

represented by their Managing Director, Gopal

Sabu.

2. Allegations were primarily directed against

the petitioner in the complaint. But another

individual, Shiv Narayan Sabu was also

implicated in the proceeding before the Salem

Court. The Transfer Petition, however, has been

brought by Raj Kumar Sabu alone. Subsequently,

an application for intervention has been filed

by said Shiv Narayan Sabu. He supports the

petitioner’s case for transfer. In the

intervention application, the grounds on which

transfer is sought by the petitioner has been

broadly repeated. Said Shiv Narayan Sabu has
4

shown sufficient interest to intervene in this

proceeding and I allow his application for

intervention. Hence the intervenor’s cause

shall be dealt simultaneously with the

petitioner’s case. The intervenor has also

alleged that he has been unnecessarily dragged

into the dispute. But in this proceeding, that

grievance of the intervenor cannot be

considered. I am to examine the plea for

transfer of the aforesaid criminal case only.

Before the Salem Court, examination-in-chief of

three prosecution witnesses have been completed

on 2nd March 2019, 5th April 2019 and 27th May

2019 (as has been pleaded in the Transfer

Petition). Next date was fixed by the Salem

Court for appearance of the two accused

persons.

3. Several proceedings have been instituted

over the question of ownership of the trade
5

mark SACHAMOTI, and these litigations bear

features of a family dispute. The petitioner,

intervenor and Gopal Sabu, who appears to be in

effective control of the respondents’ business

are brothers. The businesses of petitioner and

the respondent-company also seems to have had

association or connection in the past. There

was a burst of litigations between the two

parties, Raj Kumar and Gopal in substance, in

the year 2016. The petitioner filed a suit in

the High Court of Delhi on 9th June, 2016

alleging infringement and passing off of the

same trade mark by the respondent. He claims to

have registration of the subject-trade mark in

his favour, on the strength of an assignment

from his late mother, Chandrakanta Sabu. The

said suit was registered as Civil Suit

(Commercial) No. 761 of 2016. Gopal Sabu made

complaints to the police authorities at Salem
6

in the months of July and August 2016 seeking

action against the petitioner on the allegation

of counterfeiting the same brand, referred to

in the complaints, inter-alia, as property

mark. These complaints were founded also on

certain other counts. In the suit instituted in

the Delhi High Court, counter claim was lodged

by the respondents.

4. The respondents had filed a suit for

declaration and injunction to prevent use of

the said trade mark in the Court of District

Judge, Salem, which was registered as OS No.

148 of 2016. Another suit was filed on 19th

August, 2016 in the District Court of Indore,

but this suit had been rejected on 16th

November, 2016. There was also a suit by the

respondents in the High Court at Calcutta,

registered as C.S. No. 195 of 2016. Proceedings

in this suit however was initially stayed in
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view of pendency of the suit in Delhi High

Court and subsequently this Court had directed

the respondents to withdraw this suit. Both the

petitioner and the respondents had filed two

transfer petitions in this Court before the

present one. These two transfer petitions were

registered as being T.P.(C)No. 1320 of 2018

(instituted by the Petitioner) and T.P.(C)No.

1676 of 2017 (that of the respondent) for

transferring the opponent’s suits to the Courts

in which the respective parties had filed their

suits. These transfer petitions were heard

together by this Court and in a common order

passed on 18th July, 2018, a Bench comprising

of three Hon’ble Judges of this Court was

pleased to direct:-

“(i) OS No. 148 of 2016, titled as Sabu
Trade Pvt. Ltd. v. Rajkumar Sabu & Anr
.,
pending before the District Court,
Salem, be transferred to the Delhi High
Court for adjudication along with CS
(COMM) No. 761 of 2016, titled as Mr.
Rajkumar Sabu v. Ms. Kaushalya Devi Sabu
8

& Ors. pending before the Delhi High
Court.

(ii) The injunction granted by the Delhi
High Court vide order dated 10.06.2016,
and confirmed by order dated 22.01.2019,
is hereby set aside. The interim
application for temporary injunction
filed in CS (COMM) No. 761 of 2016
stands revived before the Single Judge
of the Delhi High Court and may be heard
on merits. FAO(OS) (COMM) No. 69/2019,
FAO(OS) (COMM) No. 72/2019 and FAO (OS)
(COMM) No. 73/2019, filed before the
Division Bench of the High Court as
against the order dated 22.01.2019,
stand disposed of.

(iii) The order of the Madras High Court
dated 07.01.2019 in CMA No. 846 of 2018
and CMP No. 6995 of 2018, as also the
order dated 02.02.2018 passed by the
Principal District Court, Salem, are set
aside. The application for injunction
filed in OS No. 148 of 2016 by Sabu
Trade Pvt. Ltd. (through Gopal Sabu)
also stands revived, and is transferred
along with the said suit to the Delhi
High Court to be heard in the
transferred suit along with the
application revived in CS (COMM) No. 761
of 2016 mentioned above.

(iv) The learned Single Judge of the
Delhi High Court is requested to decide
both the abovementioned applications for
injunction in the respective suits
within three months.

(v) In view of the clubbing of OS No.
148 of 2016, titled as Sabu Trade Pvt.
Ltd. v. Rajkumar Sabu & Anr
., pending
before the District Court, Salem, along
with CS (COMM) No. 761 of 2016, titled
as Mr. Rajkumar Sabu v. Ms. Kaushalya
Devi Sabu & Ors
. pending before the
Delhi High Court, and the fact that
C.S.No.195/2016, pending before the
Calcutta High Court, is identical to the
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one transferred above, we think it is
unnecessary for the parties to litigate
and pursue the matter pending before the
Calcutta High Court. Accordingly, we
direct the petitioner to withdraw
C.S.No.195/2016.

(vi) We make it clear that we have not
expressed any opinion on the merits of
the matter and the applications for
injunction shall be decided by the High
Court on their own merit, uninfluenced
by any observations made by either this
Court or any High Court regarding this
matter.”

5. Now the petitioner wants the criminal case

pending in the Salem Court to be transferred to

the Patiala House Court, New Delhi. Two main

grounds have been urged on behalf of the

petitioner in support of his plea, argued by

Mr. S. Guru Krishnakumar, learned Senior

Advocate. One is that the points involved in

the criminal case are similar to the suits

which are being tried and determined by the

Delhi High Court. The other ground taken is

that the proceeding in the Salem Court is being

conducted in Tamil, which the petitioner does
10

not understand. It has also been urged on

behalf of the petitioner that it would be more

convenient for the parties to conduct the

proceeding in New Delhi as the civil suits are

being heard in the Delhi High Court only. The

petitioner also complains about distance of

over 2000 kilometres between Salem and

petitioner’s own place of residence at Indore

and alleges that there is no direct

connectivity between these two places. The

authorities relied upon by the petitioner are

(i) Sri Jayendra Saraswathy Swamigal (II), T.N.

vs. State of Tamil Nadu & Ors. [(2005) 8 SCC

771] and Mrudul M. Damle & Anr. vs. Central

Bureau of Investigation, New Delhi [(2012) 5

SCC 706]. It is also asserted on behalf of the

petitioner that the respondents have influence

in Salem and he has apprehension that he would
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not get impartial enquiry/investigation/trial

at Salem.

6. Mr. Gopal Sankarnarayan, learned Senior

Advocate has highlighted, in course of his

submissions on behalf of the respondent, the

delay in approaching this Court seeking

transfer of the criminal case. As per his

submission, proceeding was registered on 5th

April, 2018 and has made substantial progress.

The complaint has reached the stage of cross

examination of the complainants’ witnesses by

the petitioner. The transfer petition was filed

on 12th January, 2021. He also points out that

personal appearance of the petitioner during

trial stood dispensed with by an order of the

Madras High Court. It is also his submission

that the case pending in the Salem Court has

criminal elements, which ought not to be mixed

up with the civil suit. Relying on a judgment
12

of a Coordinate Bench in the case of Umesh

Kumar Sharma vs. State of Uttarakhand [(2020)

SCC Online SC 845] and an earlier decision of

this Court in the case of Gurcharan Dass Chadha

vs. State of Rajasthan [(1966) 2 SCR 678], he

has argued that to sustain allegation of lack

of neutrality in trial as a ground for

transfer, credible materials will have to be

brought before the Court. His argument is that

there is no such material that would justify

transfer on this ground. Certain decisions have

been referred to on behalf of the respondents

on the point that civil and criminal

proceedings can go on simultaneously in

relation to similar transactions. But I do not

consider it necessary to deal with these

authorities, as that point does not arise in

the present proceeding, which is a Transfer

Petition.

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7. I shall proceed on the basis that the suits

being heard by the Delhi High Court would have

points which could overlap with those involved

in the criminal case pending in the Salem

Court. But that very fact, by itself, in my

view, would not justify transfer of the said

case. Substantial progress has been made in

the said complaint before the Salem Court. So

far as the subject-criminal case is concerned,

the ground of overlapping points in any event

cannot justify the petitioner’s case for

transfer as even if the petition is allowed,

the criminal case shall have to proceed in the

Court of Judicial Magistrate and not in the

High Court where the civil suits are being

heard. Two different judicial fora would be

hearing the civil cases and the criminal case.

Whether the civil cases and the criminal case

would continue together or not is not a
14

question which falls for determination in this

Transfer Petition. Moreover, it does not appear

that earlier any complaint was made about the

proceeding being carried on at Salem. In fact,

the petitioner had applied for quashing the

complaint before the Madras High Court but at

that point of time, no proceeding was taken out

for transferring the criminal complaint.

Moreover, on 8th June 2018, the petitioner had

appeared before the Salem Court and received

copy of the criminal complaint. This has been

stated in the list of dates forming part of the

Transfer Petition. At that point of time, the

two earlier Transfer Petitions were pending.

Those two petitions were disposed of on 18th

July 2018. The petitioner does not appear to

have had expressed their grievances on the

basis of which this petition has been filed at

that point of time. Barring claims being made
15

by the petitioner of the respondents being

influential person in Salem, no material has

been produced to demonstrate that such

perceived influence can impair a neutral trial.

These allegations, inter-alia, appear in an

additional affidavit filed on behalf of the

petitioner affirmed on 26th February, 2021. The

claims of the petitioner do not match the level

of unjust influence exerted on the defence in

the case of Sri Jayendra Saraswathy Swamigal

(supra), on the basis of which the transfer

petition was allowed. In that case, this Court

found the prosecuting authorities were

harassing the defence team of lawyers and there

were materials demonstrated by the petitioner

to show that the State machinery was going out

of its way in preventing the accused from

defending himself. The petitioner’s case of

possible tainted trial is unfounded and does
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not meet the standard laid down in the cases of

Gurucharan Dass Chadha (supra) and Umesh Kumar

Sharma (supra). I cannot come to a conclusion

that justice would be in peril if the case

continues in the Salem Court. I am not

satisfied on the basis of materials available

that the petitioner would not get impartial

trial in the Salem Court.

8. Next, I shall turn to the question of the

problem of language faced by the petitioner.

The respondents seem to be carrying on their

business from Salem. In course of hearing

before me, no question has been raised as

regards territorial jurisdiction of the Salem

Court in proceeding with the case, the transfer

of which is asked for. Now, complaint is being

made that the petitioner not being able to

understand Tamil language, the case ought to be

transferred to a Court in Delhi. Language was
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a factor considered by this Court in the case

of Sri Jayendra Saraswathy Swamigal (supra),

while selecting the Court to which the case was

to be transferred. But language was not the

criteria based on which transfer of the case

was directed. I have briefly discussed earlier

the reason for which transfer of the case was

directed. The language factor weighed with this

Court while deciding the forum to which the

case was to be transferred after decision was

taken to transfer the case for certain other

reasons.

9. Ordinarily, if a Court has jurisdiction to

hear a case, the case ought to proceed in that

Court only. The proceeding in the Salem Court

has not been questioned on the ground of lack

of jurisdiction but on the ground contemplated

in Section 406 of the 1973 Code. Jurisdiction

under the aforesaid provision ought to be
18

sparingly used, as held in the case of Nahar

Singh Yadav & Anr. vs. Union of India & Ors.

[(2011) 1 SCC 307]. Such jurisdiction cannot be

exercised on mere apprehension of one of the

parties that justice would not be done in a

given case. This was broadly the ratio in the

case of Gurcharan Dass Chadha (supra). In my

opinion if a Court hearing a case possesses the

jurisdiction to proceed with the same, solely

based on the fact that one of the parties to

that case is unable to follow the language of

that Court would not warrant exercise of

jurisdiction of this Court under Section 406 of

the 1973 Code. Records reveal that aid of

translator is available in the Salem Court,

which could overcome this difficulty. If

required, the petitioner may take the aid of

interpreter also, as may be available.
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10. The petitioner’s plea for transfer is based

primarily on convenience. But convenience of

one of the parties cannot be a ground for

allowing his application. Transfer of a

criminal case under Section 406 of the 1973

Code can be directed when such transfer would

be “expedient for the ends of justice”. This

expression entails factors beyond mere

convenience of the parties or one of them in

conducting a case before a Court having

jurisdiction to hear the case. The parties are

related, and are essentially fighting

commercial litigations filed in multiple

jurisdictions. While instituting civil suits,

both the parties had chosen fora, some of which

were away from their primary places of

business, or the main places of business of the

defendants. The ratio of the decision of this

Court in the case of Mrudul M. Damle (supra)
20

cannot apply in the factual context of this

case. In that case, a proceeding pending in

the Court of Special Judge, CBI Cases, Rohini

Courts, New Delhi was directed to be

transferred to the Special Judge, CBI cases,

Court of Session, Thane. Out of 92 witnesses

enlisted in the charge sheet, 88 were from

different parts of Maharashtra. That was a case

which this Court found was not “Delhi-centric”.

The accused persons were based in western part

of this Country. It was because of these

reasons, the case was directed to be

transferred. The circumstances surrounding the

case pending in the Salem Court are entirely

different. In the case of Rajesh Talwar vs. CBI

[(2012) 4 SCC 217] it was held:-

“46. Jurisdiction of a court to
conduct criminal prosecution is
based on the provisions of the Code
of Criminal Procedure. Often either
the complainant or the accused have
to travel across an entire State to
attend to criminal proceedings
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before a jurisdictional court. In
some cases to reach the venue of
the trial court, a complainant or
an accused may have to travel
across several States. Likewise,
witnesses too may also have to
travel long distances in order to
depose before the jurisdictional
court. If the plea of inconvenience
for transferring the cases from one
court to another, on the basis of
time taken to travel to the court
conducting the criminal trial is
accepted, the provisions contained
in the Criminal procedure Code
earmarking the courts having
jurisdiction to try cases would be
rendered meaningless. Convenience
or inconvenience are
inconsequential so far as the
mandate of law is concerned. The
instant plea, therefore, deserves
outright rejection.”

11. For these reasons, I dismiss the present

transfer petition. Connected applications, if

any, shall also stand disposed of.

12. There shall be no order as to costs.

……………………………………………J.

(Aniruddha Bose)

New Delhi
Dated: 7th May, 2021



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