LexVISHWA MITTER versus O. P. PODDAR AND OTHERS
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A c D E F H 176 ·VISHWA MITTER v. o: P. PODDAR AND OTHERS September 30, 1983 [D. A. DESAI AND AMARENDRA NATH SEN, JJ.]- Trade and Merchandise Marks Act, 1958-0jfences under ss. 78 Qnd 79- Jndian Penal Code-Offence under s. 420-Code of Criminal Procedure 1973- Sub-ss. (I) _and (2) of s. 4 r~ad with s. 190-Court cannot decline td take cogni· zance of complaint on. the sole gtound that complainant was not competent to file the complaint. The appellant, in his capacity as a dealer. of beedies and as the consti~ tuted attorney of the firm_ manufa~turing a particular brand of beedies, filed a con1plaint alleging comrnissio~ of offences by the respondents under ss. 78 and 79 of the Trade and Merchandise Marks Act, 1958 and s. 420, I.P.C. The Magistrate, after a preliminary inquiry, directed issue of process to the respon· dents but the s_an1e was quashed in revision by· the High Court on a technical ground and the Magistrate was directed to consider the question of issue of process afresh. The Magistrate re-heard the matter and dismissed the com- . plaint on the ground that the appellant was not competent to file the coinplaint against the respondents as he was not the fegistered owner of the trade-mark in question. The ·appellant approached this Court after the revision petition filed "by hi1n was dismissed in limine by the High Court .. Allowing the appeal, HELD : A~yone can set the criminal ·law in motion by filing a com- plaint of facts constituting an offence before a Magistrate entitled to take cogniz:iince tinders. 190 of the Co~e of Criminal Procedure, 1973 and unless any statutory provision prescribes <iny special qualification or eligibility criteria -for putting the criminal law in motion, no court can decline to take cognizance on the !'iole ground that tho complainant was not competent to file the com- plaint.· Sectf-;,n 190 of the Code cl~a~Jy indicates _that the qualification of the complainant to file a complaint ~s not relevant. (181 H; 182 A-BJ (b) Section 4, Cr. P.C. provides for trial of offences under the Penal Code and other laws. Sub-s. (1) of s. 4 deals with offences under the Penal -. Code. Sub-s. (2) of s. 4 provides that hll offences· under any other law shall be investigated, inquired into, tried a.nd otherwise dealt with according to the same pfovisions, but subject to any enactment for the t_ime being in force regulatirig the manner or place of investigating, inquiring illto, trying or other- wise dealing with such offences. From a combined reading of s. 4(2) withs. 190~ it transpires that upon a complaint. bein~ filed by a person, settin~-ou~ .. I .~· ... - , VJSHWA MITTER v. o.P. PODDAR (Desai, J.) 177 facts therein which constitute the offence, before a Magistrate specified ins. 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. [179 H; 180 A-B; H; 181 Al (c) Section 89 of the Trade and Merchandise Marks Act, 1958 pro\!ides that no court shall take cognizance of an offence under s .. 81, 82 or 83 eX.cept . on a complaint in writing made by the Registrar or any officer authorised by him in writing. This provision manifests the legislative intention that in respect of the three specified offences punishable under ss. 81, 82 and 83, the Registrar alone is competent to file the coinplaint. This would show that in respect of other offences under the Aci the provision contained in s. 190, Cr. P.C. read with sub-s. (2) of s. 4 thereof would permit anyone to file the complaint. Thi indication to the contrary as envisaged by sub-s. (2) of s. 4 is to be found in s. 89 of the Act and that section does not prescribe any particular eligibility criterion or qualification for filing a complaint for contravention of ss. 78 and 79 of the Act. [182 E·Gl (d) Even otherwise, in the absence of a specific qualification, if the person complaining has a subsisting interest in the protection of the registered. trademark, his complaint cannot be rejected on the ground that he had ,n,o cause of action or sufficient subsisting interest to file the complaint. In the instant case the appellant who was the complainant was not only a dealer in the beedies manufactured and sold by the registered owner of the trade-mark but also its constituted attorney. [182 H; 183 A-BJ (e) Even with regard to offences under the Penal Code, ordinarily, anyone
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