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Supreme Court of India
Rajkumar Sabu vs M/S Sabu Trade Private Limited on 7 May, 2021Author: Aniruddha Bose
Bench: Aniruddha Bose, Krishna Murari
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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
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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
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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
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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
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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
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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
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& 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
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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
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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
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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
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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
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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)
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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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