In one of its first orders referring to the new criminal law that came into effect on July 1, the Delhi High Court this week referred to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), in a trademark infringement case also involving issues of forgery and fabrication of documents.

The plaintiff KG Marketing India, a manufacturer of electrical appliances, filed a trademark infringement suit against two individuals seeking an injunction against the use of the mark ‘SURYA’. It claimed to be one of the largest market leaders in electrical appliances with a pan-India presence over the last six years. The plaintiff also claimed that its projects have been advertised in various newspapers. Subsequently, an interim order was passed in its favor in January last year.

Later, the defendants filed a plea for vacation of the interim order, claiming that they are copyright owners of various labels under ‘SURYA GOLD’ mark and alleged that the documents filed by KG Marketing – the newspaper advertisements, invoices etc. – were “fabricated”.

While considering whether such fabrication by the proprietor of KG Marketing called for action by the court under Section 340 of Criminal Procedure Code (CrPC), a single-judge bench of Justice Prathiba Singh in its July 2 order said, “In these proceedings, since the application was pending when the new statutes Bharatiya Nyaya Sanhita, 2023 (BNS) and Bharatiya Nagarik Suraksha Sanhita2023 (BNSS) were enacted, the matter would continue under the erstwhile Code itself.”

The high court said that this is also clear from Section 531 of BNSS which states that if immediately before the date on which the Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then the same shall be “ disposed of, continued, held or made” as per the provisions of the Code of Criminal Procedure, 1973, “as in force immediately before such commencement, as if the Sanhita had not come into force”.

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The high court then said that the earlier codes, ie the Indian Penal Code (IPC) and the CrPC, would be the applicable laws in this case.

While the plaintiff’s suit was pending, the defendants filed another suit seeking to injunct KG Marketing from infringing its design rights and from using the mark ‘SURYA GOLD’. The defendants filed the original newspapers to establish that the newspapers relied upon by KG Marketing in its suit were fabricated.

Thereafter, two affidavits were filed wherein an apology was tendered by the proprietor of KG Marketing for “having filed the fabricated newspapers”.

Observing that forgery is a serious matter, Justice Singh said, “…although the alleged fabrication of the newspaper might have been done earlier, the affidavit filed before the Court makes a categorical assertion that the document is true and there is no false statement or concealment. of any document. The authenticity of these documents has been initially vouched for by the Deponent (proprietor of KG Marketing) who has now admitted that the documents are fabricated. Therefore, the offense has taken place once the suit was filed before this court and the document was relied upon for obtaining relief.”

The high court also said that until the defendants pointed out the original newspaper, KG Marketing did not admit to forgery or fabrication of the newspapers; it had, in fact, relied and filed the newspapers in its lawsuit as if they were “authentic newspapers”.

“The affidavit sworn was clearly false and contrary to the recently sworn affidavit, which admitted the forgery and fabrication. This, in the opinion of this court, discloses an offense of forgery, fabrication, and filing of a false affidavit, which clearly calls for the lodging of a complaint under Section 340 CrPC,” the high court said.

Observing that “reliance on a forged and fabricated document cannot go unpunished”, Justice Singh directed the high court’s registrar general to lodge a complaint within four weeks with the concerned judicial magistrate.

The high court further dismissed KG Marketing’s lawsuit with Rs 5 lakh costs and restrained it from using the mark ‘SURYA GOLD’.