Desai, J. - (1.) 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, 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 Section 420, I. P. C. 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 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 multicolour seal label containing the numeral '501' it its centre. The owners of the registered trade mark came to know that respondent No. 4-M/s. Shri Ganesh Beedi Works, Chakradharpur, Bihar were guilty of infringing the trade mark by using a wrapper and seat label identical with or deceptively similar to the registered trade mark and the principals of the complainant filed a suit complaining of infringement 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 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 beedies of inferior quality after wrapping them in a wrapper and used 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 complainant 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 thereby infringing the registered trade mark despire the injunction of the Court. It was alleged that respondents Nos. 1 to 3 knowing of the registered trade mark in favour of the Pricipals of the complainant 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 offences under Sections 78 and 79 of the Act and Section 420 of the I. P. C.
(2.) On this complaint being filed after a preliminary enquiry, the learned Magistrate directed process to be issued to the accused. The accused moved revision 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 an the narrow ground that the order issuing the process is not a speaking order and directed the learned Magistrate to consider the question of issuing process afresh. When the matter came back 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, Vinobe 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 say cause at 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 complainant moved the High Court of Punjab and Haryana in Revn. Petn. No. 652 of 1980, which was dismissed in limine. Hence this appeal by special leave.
(3.) 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 in not the registered owner of the trade mark is clearly erroneous.;