Churiaram Aggarwal And Another vs Aggarwal Sweet Corner And Another
1990 Latest Caselaw 184 Del

ORDER

1. This petition has been brought under Section 401 read with Section 482, Code of Criminal Procedure seeking setting aside of the order dated January 21, 1989 passed by Shri M. P. Kaushik, Metropolitan Magistrate directing issuance of general search warrants under Section 93 of the Code of Criminal Procedure. It is pleaded by the petitioner that on the basis of the said search warrants the shop of the petitioner was sought to be searched.

2. Facts leading to the filing of the present petition in brief, are that respondent M/s. Aggarwal Sweet Corner, a duly registered partnership firm under the Indian Partnership Act, filed the complaint through one of its partners, namely, Vinod Kumar Aggarwal under Sections 78 and 79 of the Trade and Merchandise Act, 1958 pleading that the complainant is engaged in the business of manufacturing sweets and "nankeens" for the last about four years and complainant is the proprietor of the Trade Mark "Aggarwal" in respect of aforesaid goods and this particular trade mark was adopted and this particular trade mark was adopted with effect from June 1, 1984 and has been continuously used by the complainant and the business of the complainant firm is very extensive one and the goods bearing the said trade mark have been practically distributed in the whole of Union Territory of Delhi and the adjoining States and the complainant's trade mark 'Aggarwal' and its trade name "Aggarwal Sweet Corner" have become distinctive and associated with the aforesaid goods on account of its long continuously extensive and exclusive use thereof and goods bearing the said trade mark are highly in demand in the markets on account of standard quality. The complainant is stated to have already made an application for getting the trade mark and the trade name registered under the said Act and the proceedings are pending in that respect in the office of the Trade Mark Registrar. It was pleaded that the complainant has advertised the aforesaid trade mark and the trade name by displaying the same on its Display Boards, Calendars, Carton Boxes and carry bags and substantial amount of money has been spent on publicity in this regard. It was mentioned that the complainant had acquired reputation in the trade on the basis of the said trade mark and the trade on the basis of the said trade mark and the trade name and its sale proceeds have jumped from rupees on lac or so in 1984-85 to rupees five lac or so in the following year and rupees nine lac or so in the year 1986-87 and Rs. 11,40,627/- in the year 1987-88. It was pleaded in the complaint that there are other unscrupulous manufacturers of the sweets and the nankeens who have adopted fanciful trade name with prefix as 'Aggarwal' as part of their trade name whose names and addresses are not known to the complainant and have flooded the various markets of Delhi with their goods and are selling those goods under the trade mark of the complainant, namely, "Aggarwal". It was pleaded that such unscrupulous traders and dealers have adopted this trade mark out of greed with a view to take advantage of the reputation of the complainant acquired under the aforesaid trade mark and unwary purchasers are being deceived in purchasing the goods of the persons believing that they are being manufactured by the complainant. So, it was urged that the said unknown persons have committed and continue to commit an offence punishable under Sections 78 and 79 of the Act.

3. In para 11 of the complaint it was mentioned that a suit for injunction was filed against such unscrupulous manufacturer namely M/s. Aggarwal Sweet Corner, W-9, West Patel Nagar, New Delhi in the Court of Shri R. K. Tiwari, Subordinate Judge. The learned Magistrate after recording the statement of Vinod Aggarwal, the partner of the complainant directed that the inquiry be made into the complaint by the police and he also directed for issuance of search warrants. On the basis of the search warrants the shop of the petitioner was sought to be raided for seizing the display boards and packing material and the goods being sold at his shop.

4. I have heard arguments for disposing of this petition finally. The counsel for the petitioner has urged that petitioner is carrying on business has urged that petitioner is carrying on business of sweet meat seller under the name and style of M/s. Aggarwal Sweet India at Shop No. 1, House No. 24, West Patel Nagar, New Delhi since 1986 and that no trade mark could have been acquired by the complainant in the very common Sir Name 'Aggarwal'. He has also urged that complainant was well aware of the identity of the petitioner and the fact that petitioner is carrying on the said business under the name and style mentioned above, still the complainant, for reasons best known, had concealed this fact and had obtained general search warrants with a view to harass the petitioner. He has also argued that no complaint could have been instituted in the name of partnership firm. It has been also contended by him that no reasons have been given by the learned Magistrate for issuing the general search warrants. The order of the Magistrate on that score alone is invalid and without jurisdiction. He has also argued that for collecting some evidence in support of the complaint it was not necessary to carry out any search of the business premises of the petitioner in as much as the petitioner is carrying on his business openly and not in any clandestine manner and any evidence the complainant wished to lead in support of his complaint or the police wanted to collect in support of the complaint, could be done without resort to any search of the premises of the petitioner.

5. The learned counsel for the respondent, on the other hand contended that the present petition is not maintainable in view of the fact that the impugned order is interlocutory in nature. On merits, counsel for the respondent has pleaded that the complaint in the name of the partnership firm is maintainable in law and even if no reasons have been given in the impugned order by the learned Magistrate but if the facts mentioned in the complaint and the attending circumstances appearing on the file can justify the passing of the impugned order, the impugned order must be maintained. He has argued that there is no legal bar in complainant acquiring proprietorship in the trade mark 'Aggarwal'. The learned counsel for the respondent has further contended that the case is only at the stage of inquiry and no summons having been issued to the petitioner, the petitioner has no right to file the present petition challenging the impugned order. He had also urged that the power of the police to effect seizure of the incriminating articles in pursuance to the investigation being done cannot be curtailed by this Court.

6. The first question to be seen is whether the petition is maintainable for challenging the impugned order. The learned counsel for the respondent has argued that as the impugned order is interlocutory in nature, no revision or petition under Section 401 or 482 of the Code of Criminal Procedure is maintainable. He has placed reliance on Amar Nath v. State of Haryana, in which it has been laid down that Section 482 contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed and the harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court then to such a case the provisions of Section 482 would not apply. In my opinion the impugned order directing issuance of general search warrants which adversely affects any particular party, cannot be treated as an interlocutory order. On the basis of such a search warrants if a particular party is being harassed in his business the said party, in my opinion, can challenge such an order by filing the revision petition. At any rate, it has been laid down by the Division Bench of the Orissa High Court in Kashinath Biswal v. Hina Bhoi; 1987 Cri LJ 350 that inherent powers under Section 482 of the Code can be exercised even where revisional powers are not exercisable. The observations made by the High Court in the case of Amar Nath (supra) have been analysed and interpreted in the light of the observations made by the Supreme Court in Madhu Limaye v. State of Maharashtra; which are to the following effect :

"The point which falls for determination in this appeal is squarely covered by a decision of this Court, to which one of us (Untwalia, J.) was a party in Amar Nath v. State of Haryana, Criminal Appeal No. 124 of 1977 decided on the 29th July, 1977 : . But on a careful consideration of the matter and on hearing learned counsel for the parties in this appeal we thought it advisable to enunciate and reiterate the view taken by two learned Judges of this Court in Amarnath's Case.

Thereafter the Supreme Court had analysed the law and laid down as under :

"As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2) in Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court." But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in sub section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code, for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could not be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit of affect the exercise of the inherent power by the High Court."

7. So, examining from any angle, the present petition is maintainable.

8. The next contention raised is that the complaint on behalf of partnership firm is not competent. Counsel for the petitioner has cited Commr. of Income-tax, West Bengal v. A. W. Figgis & Co., wherein the Supreme Court has laid down that under the law, partnership business has no legal existence apart from its partners and it is merely a compendious name to describe its partners but it is also equally true that under that law there is no dissolution of the firm by the mere incoming or outgoing of partners. I do not think how anything said in this judgment supports the contention of the learned counsel for the petitioner. Section 2(y) of the Code of Criminal Procedure lays down that the words and expressions used in this Code and not defined at defined in the Indian Penal Code have the meanings respectively assigned to them in that Code. Under Section 190 of the Code of Criminal Procedure the Magistrate can take cognizance of any offence upon receiving a complaint or facts which constitute such offence. Section 2(d) of the Code gives meaning to the complaint as any allegation made in oral or in writing to a Magistrate, with a view to his taking action under this Code that some person whether known or unknown, has committed an offence. Section 11 of the Indian Penal Code describes the word 'person' to include any company or Association or body of persons, whether incorporated or not. The registered partnership firm, obviously is covered by the definition of the provisions. The complaint made in the name of the said partnership firm which suits with the requirements of the "complaint" defined in the Code is maintainable. The counsel for the petitioner has also cited Dulichand Laxminarayan v. Commr., of Income-tax, Nagpur, in which the Supreme Court observed that to import the definition of the word "person" occurring in Section 3(42), General Clauses Act, 1897, into Section 4, Partnership Act, will be totally repugnant to the subject of partnership law. The word "persons" in Section 4, Partnership Act contemplates only natural or artificial i.e. legal persons and a firm is not a "person" and as such is not entitled to enter into a partnership with another firm or Hindu Undivided Family or individual. The Supreme Court was not examining the provisions of Indian Penal Code or the Criminal Procedure Code in order to determine whether a partnership firm could be termed as a "person" for the purpose of Indian Penal Code. Hence, nothing said in this judgment is of any help in deciding whether a partnership firm can or cannot institute a criminal complaint under Section 190 of the Code of Criminal Procedure. Lastly, learned counsel for the petitioner made reference to L. V. Veeri Chettiar v. Sales Tax Officer, Bombay; . The Division Bench of the Madras High Court were examining the provisions of Bombay Sales Tax Act and while referring to Section 19(3) of the said Act, it held that it is not a charging section. It only declares the liabilities of members of an erstwhile association of persons but does not show that such association can be assessed and an association of persons, a legal entity like a partnership firm, cannot be proceeded against after dissolution of its pre-dissolution transactions. Nothing said in this judgment is of any assistance in interpreting the provisions of Code of Criminal Procedure read with Indian Penal Code.

9. In Raghubans Dubey v. State of Bihar; , it was laid down by the Supreme Court that once the cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders. Once he takes the cognizance of an offence, it is his duty to find out who are real offenders and once he comes to the conclusion that apart from the persons sent up by the police, some other persons are involved, it is his duty to proceed against those persons. In State v. Ishwar Saran, the single Bench of the High Court has held that the word "complainant" has to be incorporated in the light of the definition given to the word "complainant" in Section 4(1)(h) of the old Code and it is obvious that the complainant is he who moves the machinery of the Magisterial Court by making certain allegations before it for taking action against the person who has infringed the law.

10. In Misrilal Mangilal Maternity & Child Welfare Centre Construction Co. Hyderabad v. Rajmallu 1978 Cri LJ 1360 (Andh Pra) a contention was raised that unregistered association being not a legal entity could not institute any complaint through its Chairman was negatived and it was held that once the Magistrate took the cognizance of an offence, he should proceed with the matter and his dismissal of the complaint on the ground that the affected association being not registered was not a legal entity and therefore its Chairman has no locus standi to initiate the complaint was illegal. Referring to the definition of the word "person" as given in Section 11 of the Indian Penal Code and Section 3(42) of the General Clauses Act, it was held that a 'person' includes body of persons incorporated or not. In the present case the partnership firm which has brought the complaint is a registered one and thus is covered by the definition of the 'person' and a complaint in the name of the partnership is well maintainable.

11. Coming to the next point urged in this matter whether the complaint could be filed against unknown persons or not, the learned counsel for the respondent has brought to my notice a judgment of the single Bench of this Court given in Criminal Misc. (M) 734 of 1980 and Cri. M(M) 735 of 1980 and Cri. Misc. (M) 76 of 1981 decided on March 27, 1981 in Laxminarayan Mehta v. M/s. Polydoor Company of India & Anr. wherein it has been held that a compliant for the offences under the aforesaid Act was maintainable against unknown person. It is no doubt true that Magistrate takes cognizance of an offence and not of the offenders but where the offenders are known, the complaint must be filed against known offenders. In the case of Laxminarayan (supra) the musical records being prepared by M/s. P. D. Company were being pirated clandestinely by large number of unknown persons. They were making tapes and cassettes from the popular records of the said company and thus a complaint was brought and general search warrant was issued under Section 93 of the Code of Criminal Procedure and it was held by this Court that under Section 93 of the Code where the Court considers that the purpose of enquiry trial or other proceedings under the Code would be served by a general search or inspection, it may issue a search warrant and that issuance of a search warrant is a serious matter and being in the discretion of the court, it would be reasonable to expect the Court to give reasons which swayed its discretion in favor of granting there request. Keeping in view the peculiar facts of the said case the Court held that investigation in offences like those under Sections 78 and 79 of the Trade and Merchandise Marks Act could not be effectively carried out without the assistance of the police force and Magistrate has got to take into account the nature and character of the offences alleged to have been committed and to see as to whether without police assistance he can enquire into such offences and enable the complainant to bring the offenders to book. The Court also observed that the cases of wide range infringement of copyrights, trade marks and cheating are continuing acts and repeated searches are called for and indeed they may even prove some sort of a deterrent. It was held that no doubt some genuine dealers may suffer on account of an unnecessary search of their premises but such a contingency cannot be avoided by them altogether if they deal in such articles and if the State has to prevent breach of copyrights and widespread cheating. I do not think that anything said in this judgment can be taken advantage of by the complainant in the present case. It was not a case of any clandestine trade being carried out by the petitioner that a search warrant was required to be issued. The petitioner is selling his wares openly and in case the petitioner is infringing any trade mark of the complainant, the complainant can collect the necessary evidence without obtaining any search warrant. As already held in the aforesaid judgment that issuance of a search warrant is a very serious matter and should not be dealt with in a light manner in order to give advantage to particular complainant for harassing the rival in trade. Arguments have been advanced before me that no trade mark can be acquired in the common Surname like 'Aggarwal' and counsel for the petitioner has referred to certain case law an certain well known books on this subject and on the other hand counsel for the respondent has also referred to certain cases where even the trade mark has been held to be acquired in respect of a very common name. It is not a stage for expressing any views on the particular question of fact in law as any observation made on this aspect of the case would prejudice the merits of the appeal which is yet to be decided by the Magistrate.

12. It must be kept in view that petitioner is running his trade in a different name from the trade name of the complainant. The counsel for the respondent could not controvert the contention of the learned counsel for the petitioner that complainant was well aware of the business being run by the petitioner in the said trade name and if that is so, it is not understood why the complainant did not name the petitioner as one of the offenders in his complaint. Be it as it may, in my view in the light of the facts mentioned in the complaint itself it was not a fit case for issuance of a general search warrant. After all the sweets are being sold in shops having business Boards displayed on them and this business of selling sweets is not allegedly being done in any clandestine manner so as to require any issuance of search warrant against unknown persons.

13. I may refer to V. S. Kuttan Pillai v. Ramakrishnan, wherein provisions of Section 93(1)(c) of the Criminal Procedure Code were considered and it was observed that the said provision comprehends a situation where a search warrant can be issued as the Court is unaware of not only the person but even the place where the documents may be found and the general search is necessary and it was also held that issuance of a search warrant is a serious matter and it would be advisable not to dispose of an application for search warrant in a mechanical way by a laconic order. It was emphasised that issue of search warrant being in the discretion of the Magistrate, it would be reasonable to expect of the Magistrate to give reasons which swayed his discretion in favor of granting the request and a clear application of mind by the learned Magistrate must be discernible in the order granting the search warrant. In the present case the order of the Magistrate is completely laconic and appears to have made in a mechanical way. The Magistrate has not kept in view the peculiar facts of the case from which an inference can be drawn that there cannot be any possible clandestine dealing with the sale of sweetmeat may be under the trade mark "Aggarwal" and the names of so-called offenders of such trade mark could be easily ascertained by the complainant and disclosed to the Magistrate and the provisions of Section 93(1)(c) could be invoked.

14. In Shiv Dayal v. Sohan Lal : (1970 Cri LJ 1517), a single Judge of that Court had clearly laid down that where the documents and things are known to be in possession of the accused and their location and place of storage are also known, the warrant would not be a general warrant for search and inspection and would be covered by the first part of Section 96(1) (of the old Code) and not the third part. In the present case also it was quite clear from the facts that the premises of the petitioners where petitioners were carrying on their trade of selling sweetmeats under the particular trade name were very well known to the complainant and there could be no question of general search warrant being issued and sought to be executed against the petitioners. The order of the learned Magistrate in my view suffers from grave illegality and is liable to be quashed.

15. I hence allow this petition and quash the impugned order regarding issuance of general search warrants.

16. Petition allowed.