Misappropriation

Case BriefsHigh Courts

Patna High Court: Rajeev Ranjan Prasad, J., denied bail to the advocate booked for allegedly misappropriating his client’s money and committing breach of trust being an attorney. The Bench stated,

“Despite repeated caution made to learned counsel for the appellant that the appellant being an Advocate must come out with a fair stand even at this stage, there is no change of stand.”

The appellant was seeking to set aside the order of the Trial Court with regard to the offence under Sections 406, 420 of the Penal Code, 1860 and Sections 467, 468, 471, 120(B) of the Indian Penal Code and Section 3(r)(s) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, by which the prayer of the appellant for his release on bail had been rejected.

The appellant, who was an Advocate, had filed a case in the Railway Claims Tribunal on behalf of one Lalan Pasi for compensation under Section 125 and Section 16 of the Railway Act. The Tribunal allowed claim and directed the State to grant Rs. 8 Lakhs with interest at the rate of 9% to the claimant. Accordingly, a sum of Rs. 4 Lakhs was to be transferred in the account of Smt. Sanjhariya Devi (mother of the deceased). Accordingly, a joint account was opened and a sum of Rs. 10,52,000/- was transferred to the said account.

The case of the prosecution was that the appellant, taking advantage of his position as an Advocate of the victims/claimants withdrew the whole amount from the joint account of Lalan Pasi which was awarded as compensation to Lalan Pasi and Sanjhariya Devi on account of the death of their only son Gorakh Pasi.

Contesting the bail appeal, the State submitted that the act of the appellant robbing his client, being an Advocate was highly condemnable and the allegation against him were serious in nature when considered from the point of view of the professional ethics of an Advocate and the duty cast upon him towards his client.

Observing that, despite repeated caution to return the entire amount to the claimant, the appellant was reluctant to do so and was only willing to return a sum of Rs. 5 lakhs, the Bench stated that the appellant being an Advocate must come out with a fair stand.

In the light of the above, the Bench held that since the appellant being an Advocate had allegedly committed a breach of trust and had misappropriated his client’s money and was not ready to return the money which belonged to his clients, his case was not fit for bail.[Santosh Kumar Mishra v. State of Bihar, Cr. Appeal (Sj) No.3564 of 2021, decided on 27-10-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance:
For the Appellant/s: Mr.Ajit Kumar, Advocate
For the Respondent/s: Ms. Usha Kumari – 1, Special P.P.

Case BriefsHigh Courts

Delhi High Court: Rajiv Sahai Endlaw, J., while dismissing the present suit wherein plaintiff was found with no rights asserting which suit was filed, held that

“Rights of the applicant for registration as a plant variety are inchoate and not crystallized till grant of registration.”

Plaintiff pleaded that it is in business of research, production, processing, marketing and sale of high quality hybrids and varietal seeds. Defendant 1 and 2 are ex-employees plaintiff who have joined employment and of are currently employed with defendant 3 which a competitor of plaintiff.

Further it has been pleaded by the plaintiff that

  • to protect sensitive and confidential information relating to the product and product development know-how, varieties, hybrids, parent-lines, breeding strategies and associated know-how and trade secrets developed by the plaintiff, requires its employees to enter into an employment agreement and undertake not to disclose any such sensitive and confidential information to any third party during the course of employment and at any time thereafter.
  • plaintiff mandates its employees to execute a Deed of Assignment of all rights, title and interest to any and all intellectual property developed by the employee or in the development of which the employee has contributed, during the term of the employment with the plaintiff, to the plaintiff
  • defendants 1 & 2 had access to the plaintiff’s intellectual property including trade secrets such as the parent lines of the plaintiff’s hybrids and seeds used for cultivation of the parent lines of the plaintiff’s hybrids, breeding strategies etc.
  • One of the hybrid varieties developed by the plaintiff is the Cauliflower Hybrid no.SCFH-130 sold in the market under the name ‘Katreena’

Plaintiff came across packets of hybrid cauliflower seeds in the market which carried the photographs of the plaintiff’s hybrid cauliflower SCFH-130, being marketed under the name ‘Riya’ and claiming almost identical characteristic features, which later through tests were proved to be of 100% identical characteristics features.

Plaintiff alleged that defendant 3 knowingly misappropriated the trade secret parent lines of plaintiff and also acquired confidential information relating to breeding strategies, soil conditions for breeding impugned hybrid from defendant 1 and 2.

Defendant 3 has indulged in unfair competition by wrongfully exploiting the plaintiff’s valuable confidential information, trade secrets, copyright and other intellectual property rights.

Thus, plaintiff claimed permanent injunction restraining defendant 1 and 2 from disclosing or using any confidential information plaintiff including parental materials, etc., defendant 3 from disclosing or using the same.

Sole ground for rejection sought of the plaint being bar of the jurisdiction of this Court, contained in Protection of Plant Varieties and Farmers’ Rights Act, 2001.

Court in view of the above, examined the provisions in context of the present issue and stated that rights conferred by the PPVFR Act, on the breeder of a plant variety, are thus a facet of intellectual property and fall in the same domain as trade marks, copyright, patents and design.

Bench while analysing the issue also stated that,

I wonder, how a breeder of a new plant variety, which in accordance with law has already been placed in public domain by marketing thereof, can be left remediless against the person who, taking advantage of the fact that registration takes time, violates the rights of the breeder.

During the hearing, it was felt that the relief seeking which the suit had been filed was within the domain of Registrar of Plant Varieties in exercise of powers under Section 24(5) of the PPVFR Act and the jurisdiction of this Court thus was barred under Section 89 thereof.

It was thus felt that the suit was not entertainable and plaint liable to be rejected.

Court also observed that the commercial exploitation of a plant variety by a person who is not the breeder thereof but who may have come across such variety, before the breeder thereof has obtained registration of the same under the PPVFR Act and breeder being remediless till then, but on further consideration find that it is not as if the breeder would be remediless.

Breeder, once has been granted registration, in an action for infringement can always claim profits earned by such infringer for the pre-registration period as well.

Confidentiality and Secrecy obligations can only be with respect to a right which the person is entitled to protect. What the plaintiff did not have any right in, the plaintiff could not have protected by entering into agreements with the defendants 1 and 2.

Plaintiff, prior to obtaining registration under the PPVFR Act, cannot maintain a suit to restrain the defendants from infringing the rights which are yet to be conferred on the plaintiff on grant of registration.

Thus, the Court referring to the decision of Prabhat Agri Biotech Ltd. v. Registrar of Plant Varieties, 2016 SCC OnLine Del 6236 held that,

Rights of the applicant for registration as a plant variety are inchoate and not crystallized till grant of registration and the Registrar of Plant Varieties is not entitled to, pending registration, restrain another from commercially exploiting the plant variety, registration of which is sought, so will this Court as the Civil Court be not entitled to protect the claimed rights till crystallized by way of registration. [Sungro Seeds Ltd. v. Dr S.K. Tripathi, 2020 SCC OnLine Del 591 , decided on 15-05-2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A full bench of Priyantha Jayawardena, PC, Murdu N.B. Fernando, PC, and S. Thurairaja, PC, JJ., dismissed an appeal filed against an order of the High Court of Colombo, through his Power of Attorney holder, Wanigasuriyaarachige Don Sharan Mary Dolita to the Supreme Court.

The Accused-Appellant was employed as a General Cashier (Chief Cashier) at the Hilton Hotel, Colombo. Passengers who were departing through the Bandaranaike International Airport were supposed to pay an Embarkation Tax. The Hilton hotel pre-purchased the Embarkation Tax Tickets and provided them to their customers. The routine accounts verification found that, the cashier had not accounted for the said money of Rs 600,000 and when they investigated, it was found that the cashier had not reimbursed Rs 600,000   which was used to purchase the Embarkation Tax Tickets. The Hotel held an independent enquiry and found the Accused-Appellant guilty. The matter was referred to the Colombo Fraud Investigations Bureau; a case was filed against the Accused-Appellant, at the Colombo-Fort Magistrate’s Court on two counts under Section 391 of the Penal Code and two alternate counts under Section 386 of the Penal Code. The magistrate found him guilty on the first and third counts and sentenced him to one year imprisonment, aggrieved by which the Accused-Appellant had filed an appeal in the High Court and the High Court had affirmed the order of the Magistrate. Dissatisfied by which the instant appeal was made and the Supreme Court had asked to frame the grounds of appeal.

The Court while dismissing the appeal explained that the misappropriation of the Accused-Appellant has been proved beyond reasonable doubt and they do not find any in consideration of the grounds of appeal, hence there are no merits in the grounds of appeal. [Warnakulasuriya Michael Angelo Fernando v. Officer-in-Charge, SC Appeal 85 of 2014, decided on 13-11-2019]