PICHAIMUTHU Vs. WINNER KNITTING CO

JUDGEMENT

(1.) THIS appeal is directed by the complainant Pichaimuthu Manager. Messrs. Champion Knitting Company, Tiruppur, against the order of acquittal of the respondent-accused. Winner Knitting Company, of an offence under Section 78 (b) of the Trade and Merchandise Marks Act (43 Central Act of 1958 ). The respondent was convicted by the Sub Divisional Magistrate. Erode, for an offence under Section 78 (b) of the said Act and sentenced to pay a fine of Rs. 200/ -.

(2.) THE learned Counsel for the appellant contended that when the Criminal Appeal No. 212/68 was heard by the Court of Session there was no notice to the appellant, particularly when he was the complainant, principally interested in the matter. His argument is that during the stage of the hearing of the appeal, he ought to have been given notice of the appeal before the Court of Session by the accused-respondent. Such a notice has been lacking in this case and, therefore, the appellant, offices of the public prosecutor, who appeared in the appeal as the opposite party (Sic ).

(3.) THE learned Counsel for the appellant relied on the rationale found in the authorities for the position advanced before this Court. The ruling in In re Venkatavarada Ayyangar v. Vengaiservai 1938 Mad WN 729 refers to the case of the conviction of the accused with an award of compensation to the complainant. On appeal the accused was acquitted without giving notice to the complainant. The result was. the fine was set aside with-out notice to the complainant. Burn. J. held that the procedure was grossly unfair to the complainant and the judgment cannot be supported and the omission to Hive notice is not an illegality but it is clearly a gross irregularity and contrary to all sense of fairness. In Emperor v. Chunilal Bhaewanii AIR 1942 Bom 205 (1) Beaumont. C. J. and Sen, J. held that where a person, whether the complainant or some one else, has been awarded compensation under Section 545, Criminal Procedure Code he ought to be served with notice of an appeal or revision application which may result in the order of compensation being set aside. If he appears, it will be in the discretion of the court to hear his advocate or to decline to do so. But if he is served with notice, he can at any rate, see that his view is placed before the court by the advocate appearing for the Government.