TMI Blog1983 (9) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint is utterly unsustainable and must be quashed and set aside. Appeal allowed. - 516 OF 1983 - - - Dated:- 30-9-1983 - D.A. DESAI AND AMARENDRA NATH SEN, JJ. For the Appellant : V.M. Tarkunde, P.H. Parekh and Ms. Pinki Mishra For the Respondent : Harbans Lal and N.D. Garg JUDGMENT Appellant Shri Vishwa Mitter, a dealer in beedies and cigarettes as also the constituted attorney of M/s. Mangalore Ganesh Beedies Works, Mysore filed a complaint in the Court of Sub Divisional Magistrate, Ist Class, Pathankot on December 6, 1977 complaining of commission of offences by the four respondents impleaded as accused under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 ( Act for short) and Sec. 420 IPC. It was alleged in the complaint that the principals of the complainant M/s. Mangalore Ganesh Beedies Works, Mysore are the registered owners of four trade marks in respect of beedies manufactured by them. The name under which beedies manufactured by the principals of the complainant are sold in the market is Mangalore Ganesh Beedies having a registered trade mark in the wrapper being pink colour wrapper containing the motif of Lord Ganesha and the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck to the learned Magistrate, he after hearing the parties held that no case was made out for issuing the process and proceeded to dismiss the complaint. The reasons which impelled the learned Magistrate to reach the aforementioned conclusion may better be extracted in his own words: "That complainant who has filed the present complaint is not the Holder of the Trade Marks which is said to have been impugned by the accused, in collaboration with each other. He is only a sub-dealer of M/s Mangalore Ganesh Beedies Works, Vinoba Road Mysore, and there must be hundred and thousand dealers of this firm, like him. It is only M/s Mangalore Ganesh Beedies Works, who are holders of the Trade Mark and it is only they who are competent to file the complaint against the accused. The complainant has got no any cause of action, because the trade mark which is impugned by the accused does not belong to him, but belongs to M/s Ganesh Beedies Works, Mysore, Karnataka State. As no trade mark of the complainant has been violated by the accused as he is only a sub-dealer and not holding any trade mark. I find no reason absolutely to issue the process and the complaint is hereby dismissed." The com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure which prescribes an offence and simultaneously specifies the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, the provisions of the Code of Criminal Procedure shall apply in respect of such offences and they shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure. One such provision in the Code of Criminal Procedure in Sec. 190 which empowers any Magistrate of the class specified therein to take cognizance of any offence upon receiving a complaint of facts which constitutes such offence. If after taking cognizance of an offence it is permissible under Sec. 192, such Magistrate may make over the case to other Magistrate therein specified. Therefore, from a combined reading of Sec. 4(2) with Sec. 190 of the Code of Criminal Procedure, it transpires that upon a complaint filed by a person setting-out facts therein which constitutes the offence before a Magistrate specified in Sec. 190 the Magistrate will be competent to take cognizance of the offence irrespective of the qualifications or eligibility of the complainant to file the complaint. It must, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory provision prescribes any special qualification or eligibility criteria for putting the criminal law in motion, no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. Sec. 190 of the Code of Criminal Procedure clearly indicates that the qualification of the complainant to file a complaint is not relevant. But where any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. Even with regard to offences under the Indian Penal Code, ordinarily, anyone can set the criminal law in motion but the various provisions in Chapter XIV prescribe the qualification of the complainant which would enable him or her to file a complaint in respect of specified offences and no Court can take cognizance of such offence unless the complainant satisfies the eligibility criterion, but in the absence of any such specification, no Court can throw-out the complaint or decline to take the cognizance on the sole ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
