Rajesh Bindal, J. - (1.) Prayer in the present petition is for quashing of order dated 14.10.2003 passed by Chief Judicial Magistrate, Chandigarh dismissing the complaint filed by the petitioner under Section 77/78/79 of the Trade Mark and Merchandise Marks Act, 1958 (for short 'the Act') and also the order passed by the learned Additional Sessions Judge, Chandigarh dated 1.6.2004 dismissing the revision filed by the petitioner against the order passed by the learned Chief Judicial Magistrate as not maintainable as well as on merits.
(2.) Briefly the facts are that the petitioner filed a complaint against the respondents under Sections 77, 78 and 79 of the Act. Respondent no.2 -accused was summoned vide order dated 03.11.2001. In view of search warrants issued by the court under Section 93 Cr.P.C. the premises of respondent no.2 were raided where some medicines bearing brand name Alloric which were manufactured by respondent no.2 were recovered. On 14.10.2003 when the case was fixed for evidence, on account of nonappearance of the counsel for the petitioner the same was dismissed in default. In the revision filed against the order, dismissing the complaint in default the learned Additional Sessions Judge dismissed the same as not maintainable and on merits as well.
(3.) Learned counsel for the petitioner submitted that the nonappearance of the counsel for the petitioner on the date fixed before the learned Chief Judicial Magistrate on 14.10.2003 was for the reason that on 13.10.2003 another case of the petitioner company was listed in the court of Sh. Phalit Sharma, Judicial Magistrate Ist Class, Chandigarh which was adjourned to 13.12.2003. The clerk of the counsel for the petitioner/complainant misunderstood that the present case pending for 14.10.2003 had been adjourned to 13.12.2003 and made entry in the diary accordingly. The submission is that the non-appearance of the counsel for the petitioner on the date fixed was not willful, accordingly the impugned order passed by the Chief Judicial Magistrate be set aside and the compliant be restored to its original number. As regards the order passed by the learned Additional Sessions Judge in revision filed by the petitioner is concerned, the submission is that once the Court had opined that the revision was not maintainable, thereafter the court below was not required to pass any order on merits thereof.;