SHANKERBHAI MATHURBHAI PATEL Vs. RAMANLAL VRAJLAL PATEL

JUDGEMENT

(1.) This Revision Application is preferred by the petitioneroriginal accused against the order passed by the learned J.M.F.C., Borsad dated 2-5-1983 on application Exh. 16 and 18 in Cri. Case No. 1985 of 1982. A complaint was filed by the respondent against the present petitioner for an offence punishable under Secs. 78 and 79 of the Trade and Merchandise Marks Act, 1958 in the Court of Judicial Magistrate, Borsad. On receiving this complaint, the learned Magistrate ordered to send this complaint for enquiry under Sec. 202 and sought the report from the police. The offence is alleged to have been committed by the petitioner under Secs. 78 and 79 of the Trade and Merchandise Marks Act, 1958 alleging that the petitioner had used a new trade mark "Jaswant Chhap Special Telephone Bidi", which trade mark belonged to the complainant alone and it is registered under the Trade Mark Registry in the name of the complainant. The petitioner is also dealing in bidi business and he being the rival in the bidi business, the filing of this complaint was necessitated. The petitioner-accused submitted an application to the learned Magistrate Exh. 16 contending that the Court has no jurisdiction to send the complaint for enquiry under Sec. 202 without examining the complainant and his witnesses in support of the complaint.

(2.) In the original complaint, the learned Magistrate passed an order on 10- 4-1981 which reads as under :

(3.) Learned Counsel Mrs. Ghosh for the petitioner challenged that said process and contended that the learned Magistrate has violated the mandatory provision of Sec. 202(b) of the Criminal Procedure Code. Secretion 202(b) reads as under :