Holding

Any person may file a criminal complaint under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958, and the magistrate cannot dismiss it solely because the complainant is not the registered trademark owner, absent a specific statutory qualification.

Summary

Vishwa Mitter, a dealer and constituted attorney of the owners of a registered trademark for beedies, filed a criminal complaint before a Sub‑Divisional Magistrate alleging offences under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 and Section 420 of the IPC against several respondents. The magistrate initially ordered process, but on rehearing dismissed the complaint on the ground that Mitter was not the registered owner of the trademark and therefore not competent to complain. The High Court upheld the dismissal. The Supreme Court held that under Section 190 of the Code of Criminal Procedure any person may set criminal law in motion by filing a complaint of facts constituting an offence, unless a specific statute prescribes a qualification for the complainant. Section 89 of the Trade and Merchandise Marks Act only restricts complaints for offences under Sections 81‑83, not for Sections 78 and 79, so Mitter’s complaint was maintainable. The Court set aside the magistrate’s order and the High Court’s dismissal and remanded the matter for further proceedings.

Issues considered

Whether a person who is not the registered owner of a trademark but has a subsisting interest can file a criminal complaint under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958.
Whether the magistrate can reject a criminal complaint on the sole ground that the complainant is not competent to file it.
Interpretation of Section 190 of the Code of Criminal Procedure and Section 4(2) in relation to offences under statutes other than the IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 190, s. 192, s. 195, s. 198, s. 199, s. 4
Indian Penal Code, 1860s. 420
Trade and Merchandise Marks Act, 1958s. 78, s. 79, s. 89

Subjects

criminal proceduretrade mark infringementcompetence to file complaintSection 190 CrPCTrade and Merchandise Marks Actmagistrate jurisdictionoffence under IPC

Judgment

176

·VISHWA MITTER
A
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·
c 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
D 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
.
I

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
E 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-
F 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
H 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~
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 A
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 B
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
c
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 n·
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 can set the criffiinal law in motion but the various provisions in
Chapter XIV, Cr. P.C. prescribes the qualification of the complainant which E

- 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 cognizance on the sole
ground that the complainant was not competent to file the Complaint.
[182 C-Dl
F
,
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 516
of 1983.

Appeal by Special leave from the iJudgment and Order dated ·
the 'Ith November, 1980 of the Punjab and Haryana High Court in G
Criminal Revision No. 652 of 1980.

V.M. Tarkunde, P.H. Parekh a11d Ms. Pinki Mishra for the
Appellant.

Harbans Lal and N.D. Garg for the Respondent.
B

The Judgment of the <;:011r\ was 4elivered by
·178 SUPRBMI! COURT REPORTS (1984] 1 s.c.11..
DESAI, J. : Appellant Shri Vishwa Mitter, a dealer in beedies
and .cigarettes as also the constituted attorney of M/s., Mangalore
Ga~esh Beedies Works, Mysore filed a complaint i.n the Court of
Sub Divisional Magistrate, 1st 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.
B 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 princi-
pals of the complainant are sold in the market is 'Mangalore Ganesh
G .lleedies' having a registered trade mark in the wrapper being pink
'Colour wrapper coutaining the motif of Lord G anesha and the
numeral '501'. One additional registered trade mark used by the
manufacturers· of the beedies is the 'Ganesh Beedies' wrapped in a
'wrapper ·as mentioned above and bearing a multy-colour seal label
D containing the . numeral '501' at its centre. The owners ·of the
registered. trade mark came to know that respondent.No. 4-M/s
. S.hri Ganesh Beedi Works, Chakradhapur, Bihar were guilty of
infringing the trade mark by using a wrapper and seal label identical
with or deceptively similar to the registered trade mark and the
·principals of the complainant filed a suit complaining of infringment
.E and passing off against the 4th respondent. There was a prayer for
perpetual injunction in the suit. The suit ended in a decree in favour
of the owners of the registered trade mark. Somewhere in August

F
1977, the complainant who is a dealer in the beedies manufactured
by the owners of the registered trade mark came to know that the
4th respondent was selling be.edies of infenor quality -after ·wrapping
·them in a wrapper and using the trade mark deceptively similar to
--
that of the registered trade mark. A complaint thereupon. was filed
which led to the seizure of some goods. Subsequently, the com-
plainant came to know that the 4th respondent in league with the ·
2nd and 3rd respondents were storing for sale and selling beedies of
inferior quality wrapped in deceptively similar wrapper and were
G
thereby infringing the registered trade mark despite. the injunction
of the Court. It was alleged that respondents Nos. l to 3. knowing
of the registered trade mark in favour of the principals of the com-
plainant were storing for sale and selling beedies · of inferior quality
manufactured by the 4th respondent and wrapped in wrappers
falsifying the registered trade mark and thereby it was alleged ".that.
respondents committed ofJences under Sections 78 and 79 of the· Act
and S~c. 420 of the l.P.C,
VISHWA MITTER v. O.P. PODDAR (Desai, J.) 179

a
On this co.mplaint being filed after preliminary enquiry, the
learned Magistrate directed process to be issued to the accused. The .
accused moved r·evision petition in the High Court of Punjab and
Haryana at Chandigarh with a request to quash the proceedings.
The learned Single Judge of the High Court accepted 'the revision
petition on the narrow ground that the order issuing the process is
not a speaking order and directej the learned Magistrate to consider
the question of issuing process afresh, When the matter came back B
to the learned Magistrate, he after hearing the parties held that no
case was made out for issuing the process and proceeded to dismiss
tlie complaint. The reasons which impelled the learned Magistrate
to reach the aforementioned conclusion may better be extracted in
his own words : · ' c
"That complainant who has filed the present com-
plaint is not the holder of the Trade Marks which is said
to have been impugned by the accused, in coJiaboration
with each other. He,is only a sub-dealer of M/s Manga-
lore Ganesh Beedies Works, Vinoba Road Mysore, and D
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, J!l

- 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 F
. and the complaint is hereby dismissed."

The complainant moved the High Court of Punjab and .Haryana in
Revision Petition No. 652 of 1980, which was dismissed in limine.
Hence this appeal by special leave. G

The reasons which appealed to the learned Magistrate to come
to the ·conclusion that the complaint filed by the complainant cannot
be entertained because he is not registered owner of the trade mark
is clearly erroneous. H
Sec. 4 of the Code of Criminal Procedure, · 1973 · provides for
trial of offences under t)Je lnc\i~n :Penal Co\le and other Jaws. Sub•
I
181) SUPREME COURT REPORTS [1984) 1 s.c.1\.
Sec. (!) of Sec. 4 deals with offences under the Indian Penal Code.
A Sub-sec. (2) of Sec. 4 provides that all offences under any other law
(other than offences under the Indian Penal Code) shall be investi-
gated, inquired into, tried and otherwise dealt with according to
the same provisions, but subject to any enactment for the time being
· in force regulating the manner or place of investigating, inquiring
B into, trying or otherwise dealing with such offences. Fasciculus of
aections included in Chapter XIV of the Criminal Procedure Code
aet out conditions requisite ·for initiation of proceedings. Sec. 190
provides for cognizance of offences by Magistrates which inter a/ia
provides that subject to the provisions of Chapter XIV, an Magis-
trate of the first class, and any Magistrate of the second class
c apecially empowered in this behalf under sub-section (2), may take
cognizance of any offence-(a) upon receiving a complaint of facts
which constitute such offence; ... Sec. 190 thus confers power on any
Magistrate to'take cognizance of any offence upon receivi'?g a com-
plaint of facts which constitute such offence. It does not speak of
D any particular qualification for the complainant. Generally. speak-
ing, anyone can put the criminal law in motion unless there is a
specific provision to the contrary. This is specifically indicated by
the provision of sub-sec. (2) of Sec. 4 which provides that all offences
under any other law-meaning thereby/ Jaw other than the Indian
Penal Code-'-shall be investigated, inquired into, tried, and otherwise
E dealt with according to the provisions in the Code of Criminal Pro-
cedure, but subject to any enactment for the time being in force
regulating the manner or place of investigating, inquiring into, trying
or otherwise .dealing with such offences. It would follow as 11
necessary corollary that unless in any. statute other than the Code of
. Criminal Procedure which prescribes an offence and simultaneously
specifies the manner or place of. ·investigating, inquiring into, trying
or otherwise dealing with sue!(. 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.
G One such provision in the Code of Criminal Procedure in Sec. 190 ·
which empowers any Magistrate of the. class specied therein to take
cognizance of any offence upon receiving a comp lain! 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
H case to other Magistrate therein specified. Therefore, from a com-
1,iried:r~adin(l of Se~. 4(2) with Si;c. !90 9f the Cod~ of Criminal
VISliWA Ml'rl'Ell v. 6.P. PODDAR (Desai, J.) 181
Procedure, it transpires that upon a complaint filed by a person
setting-out facts therein which constitutes the offence •before a Magis·
trate specified in Sec. 190, the Magistrate will be competent to take
cognizance of the offence irrespective of the qualifications or eligibi·
Iity of the complainant to file the complaint. It must, however, be
conceded that where a provision to the contrary is made in any
statute, which may indicate the qualification or eligibility of a com·
B
plainant to file the complaint, the Magistrate before taking cogni·
zance is entitled and has power to inquire whether the complainant
satisfies the eligibility criteria. One .illustration would indicate what
can be a provision to the contrary as contemplated by sub-sec. (2)

* of Sec. 4 of the Code of Criminal Procedure. Sec. 195(1) provides
that no Court shall take cognizance of any offence set out therein
except on the complaint in writing of the public servant concerned
c
or of some other public servant to whom he is administratively sub·
ordinate. Similarly sub-sec. (2) of Sec. 1.95 provides that no Court
shall take cognizance of any of the offences specified therein except
on the complaint in writing to that Court, or to some other Court ·
D
to which that Court is subordinate. Sec. 198 provides that no Court
shall take cognizance of an offence punishable under Chapter XX
of the Indian Penal Code, except upon a complaint made by some
person aggrieved by the offence. Sec. 199 provides that no Court
shall take cognizance of an offence punishable under Chapter XXI
of the Indian Penal Code, except u.pon a complaint made by some E
person aggrieved by the offence. Sec. 20 of the Prevention of Food

. Adulteration Act, 1954 provides that no prosecution for an offence
under the Act, not being an offence under Section 14 or Section
14-A, shall be instituted except by, or with the written consent of
the Central Government or the State Government or a person autho·
rised in this behalf, by general or special order, by the Central F
Government or the State Government. Section 621 of the Com-
panies Act, 1956 provides that no Court shall take cognizance of
any offence against the Act (other than an offence with respect to
which proceedings are instituted under section 545), which is alleged
to have been
.
committed by any company or any .officer thereof
except on the complaint in writing of the Registrar, or o'r a share-
. G
holder of the company, or of a person authorised by the Central
Government in that behalf.· It is not necessary to multiply the
illustration. •
B
It is thus crystal clear that anyone can set the criminal law in
motion by filing a complaint of facts constituting an offence before
SUPREME COURT RBPORTs i19$4) i S.C.R.
a Magistrate entitled to take cognizance under Sec. -190 and unless
A any statutory provision prescribes any special qualification or eligibi-
lity 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
B ~pecial statute prescribes offences and makes any special provision
for. taking cognizance of such offences under the statute, the com-
plainant 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,
c anyone can set the .criminal law in motion but the various provisions
in Chapter XIV prescrib_e 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 cogni,ance 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
complainant was not competent to file the complaint.

Section 89 of the Act provides that no Court shall take cogni-
E zance of an offence under Section 81, Section 82 or Section 83
except on a complaint in writing inade ·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 Sections 81, 82 and 83, the Registrar alone is
competent to file the complaint. This would simultaneously show •
' that in respect of o,ther offences under the Act, the provision con-
tained in Sec. 190 of the Code of Criminal Procedure read with sub·
sec. (2) of Sec. 4 would permit anyone to file the complaint. The
indication to the contrary as envisaged ·by sub-sec.-- 2 of Sec. 4 of
the Code of Criminal Procedure is to be_ found in Sec. 89 and that
section does not prescribe any particular eligibility criterion or
qualification for filing a complaint for contravention of Sections 78
.and 79 of the Act. Therefore, the learned Magistrate was in error'
'·in. rejecting the complaint on the _sole ground that the complainant
was not entitled to file the complaint.
•
B Even otherwise in the absence of a specific qualification, if
the person complaining has a subsisting interest in the protection of
the ergistered trade mar)<, his .complaint cannot be rejected on the
VISIIWA MITTER v. 0 P. PODDAR (l>esai, J.) . 1$3

ground that he had no cause of action nor sufficient subsisting
interest to file the complaint. M/s Mangalore Ganesh Beedies A
Works, a partnership firm is the registered owner of trade marks,
falsification and infringment of which is complained by the present
complainant, who is not only a dealer in these beedies manufactured
and sold by the registered owner of the trade marks, but he is also
· the constituted attorney of the .owners of the registered trade mark. B
To say that the owner of the registered trade mark can alone file
the complaint is contrary to the provisions of the statute and
commonsense and reasdn. Therefore, the order of the learned
, Magistrate dismissing the complaint at the threshold on the ground
that the present appellant has ·no cause of action to file the com-
plaint is utterly unsustainable and inust be quashed· and set aside. c
Surprisingly, the High Court dismissed the revision petition of the
complainant in /imine which order is equally unsustainable and must
be set aside .

.This appeal is accordingly allowed and order of the learned
Magistrate dismissing the complaint and refusing to iss:.ie' process
D
dated February 20, 1980 and the order of the High Court rejecting
the revision petition· in limine dated November 4, 1980 are set aside
and the matter is remanded to the learned Magistrate to proceed
further according to law in the light of the observations made in
t_his judgment. E
H.L.C. \ Appeal allowed.

.'