P. R. S. SRINIVASAN v. S. GANESH KUMAR — 1997 DIGILAW 567 (MAD)

Judgment : ( 1 ) THIS revision by the petitioner P. R. S. Srinivasan, Partner, Srinivasan industries, Kovilpatti, is directed against the order dated 7-8-1995 passed in r. P. NO. 51 of 1994, on the file of the District and Sessions Judge, Kanyakumari district at Nagercoil. ( 2 ) THE facts leading to the presentation of this revision before this Court need narration:- (i) The petitioner is the partner of Srinivasan Industries, which is engaged for the manufacture of Vermicelli and Ada and selling the same from 1974 under the trade mark and artistic work "kuthuvizakku". On 30-7-1994, he came to know that one Srinivasan, the father of 1st respondent, of Sridevi Firms, at Kottar, Nagercoil, used the identical trade mark "kuthuvizakku", in respect of Vermicelli and Ada manufactured by him. (ii) On 4-8-1994, the petitioner, therefore, filed a complaint against the said srinivasan of Sridevi Firms, before learned Judicial Magistrate No. 1, nagercoil, who in turn forwarded the complaint under Section 156 (3)Cr. P. C. to the 3rd respondent -Sub-Inspector of Police, C. C. S. Nagercoil, for investigation. (iii) The 3rd respondent on receipt of the said order, registered the case against the said Srinivasan in Crime No. 186 of 1994, under Sections 486 and 487 of Indian Penal Code and Section 64 of the Indian Copy Right act. During the course of investigation, the 3rd respondent went to the shop of the accused, and seized the infringed articles from his shop and produced the same before the learned Magistrate. (iv) On 22-8-1994, the said Srinivasan, the accused in the above case filed a petition under Section 451, Cr. P. C. before the learned Magistrate, requesting the return of property to him on surety or alternatively to put it in auction and sell the same. (v) After hearing the petitioner as well as the 3rd respondent/police, the learned Judicial Magistrate No. 1, Nagercoil, passed an order to auction the property. In pursuance of the same the properties were auctioned on 29-8-1994. Mr. Ponnuthangam, the 2nd respondent herein is the successful bidder. (vi) On 6-9-1994 the 1st respondent Ganesh Kumar, son of the accused filed a petition in Crl. In pursuance of the same the properties were auctioned on 29-8-1994. Mr. Ponnuthangam, the 2nd respondent herein is the successful bidder. (vi) On 6-9-1994 the 1st respondent Ganesh Kumar, son of the accused filed a petition in Crl. M. P. No. 3093 of 1994 for the return of property, before the Judicial Magistrate No. 1 Nagercoil stating that the seized infringed articles were purchased by him from the petitioner a partner of Srinivasan Industries, on 14-6-1994 and 11-7-1994, on payment of cash, and received the cash bills in respect of the said purchase, and so requested the Court to cancel the auction, and handover the custody of the property to the 1st respondent, being the bona fide purchaser for proper consideration from the complainant, P. R. S. Srinivasan of kovilpatti. (vii) This petition was enquired into by the Judicial Magistrate No. 1, nagercoil, by hearing the parties concerned, and passed an order, dismissing the same on 6-9-1994. (viii) Challenging this order, the 1st respondent Ganesh Kumar, son of the accused has filed a revision before the Court of Sessions in R. P. No. 51 of 1994. Sometime later, he also filed another revision in R. P. No. 72 of 1994, to set aside the order of auction passed by the learned Judicial magistrate earlier, in pursuance of which the auction had already been held on 29-8-1994. (ix) Both these revisions were heard together by the learned Sessions Judge and same were allowed setting aside the orders passed by the learned magistrate. Having felt aggrieved over this order, this revision has been filed before this Court by the petitioner/complainant. ( 3 ) I heard both the Counsel appearing for the petitioner as well as the respondents, and gone through the records. ( 4 ) THE ground on which both the revisions were allowed by the Sessions judge, is this:-"the petitioner Ganesh Kumar produced bills to show that the seized articles were purchased from P. R. S. Srinivsan, though the said P. R. S. Srinivasan (complainant) would claim that he did not sell the same to ganesh Kumar, and never issued cash bills. The said P. R. S. Srinivsan did not raise any objection in handing over the property to Ganesh Kumar. The order of auction could not be valid in law, since no notice was issued to Ganesh Kumar, from whom the articles were seized. The said P. R. S. Srinivsan did not raise any objection in handing over the property to Ganesh Kumar. The order of auction could not be valid in law, since no notice was issued to Ganesh Kumar, from whom the articles were seized. Therefore, the order of auction is set aside. The properties are directed to be handed over to Ganesh Kumar. The auction amount of Rs. 51,450/-is directed to be paid back to the petitioner Ganesh Kumar". ( 5 ) AT the outset I may mention that the finding given by the learned Sessions judge is without any legal basis. To arrive at this conclusion, I may give the following reasons: (i) On the orders of the learned Judicial Magistrate, the 3rd respondent/ police registered the case against one Srinivasan of Sridevi firms, the father of the 1st respondent in Cr. No. 186 of 1994, under Sections 486 and 487 of the Indian Penal Code, and Section 64 of the Indian Copy right Act, on 4-8-1994. On 22-8-1994, the said Srinivasan, the accused in this case, filed a petition before the learned Judicial Magistrate requesting either to return the property which was seized from him or to put it to auction, so that the articles would not get perished. In the said petition he would say that the Sub-Inspector of Police, C. C. S., nagercoil seized the properties from his shop, and that he was prepared to offer security for the money value of the property, on its being returned to him. He never mentioned in that petition dated 22-8-1994, that it was purchased from the complainant (ii) Even in the counter dated 25-8-1994, the 3rd respondent specifically stated that the said Srinivasan, the accused was in illegal possession of 10840 kms. of Ada, which bear the same trade mark of the complainant as "kuthuvizakku", and the accused was neither the agent of the complainant, nor he had purchased any of these articles from the complainant. This was not refuted by the accused Srinivasan, the father of the 1st respondent at that stage. So, on the basis of the request of the father of 1st respondent on 29-8-1994, the Judicial Magistrate passed an order, directing for the auction of the said properties. Accordingly, auction was held and the 2nd respondent who is said to be the agent of the 1st respondent was the successful bidder in the said auction. So, on the basis of the request of the father of 1st respondent on 29-8-1994, the Judicial Magistrate passed an order, directing for the auction of the said properties. Accordingly, auction was held and the 2nd respondent who is said to be the agent of the 1st respondent was the successful bidder in the said auction. (iii) Only on 6-9-1994, the 1st respondent Ganesh Kumar, filed the petition in Crl. M. P. No. 3093 of 1994, before the learned Judicial Magistrate, stating that on 4-8-1994, from his business premises in his presence, the 3rd respondent/police seized the infringed articles, available in his shop, and when he enquired the matter with the police, they replied that the stocks were seized as per the orders passed by the learned magistrate, and that the said articles were purchased by him under the cash bills dated 14-6-1994 and 11-7-1994, from the complainant, the petitioner herein. This new story has been projected by the 1st respondent, only in the said petition filed on 6-9-1994 even though he was allegedly present at the time of seizure of the infringed articles from his shop But this is not the case, when the accused Srinivasan, the father of the 1st respondent filed the application for return of property in Crl. m. P. No. 2406 of 1994 on 22-8-1994. He never whispered that these articles were purchased by his son, the 1st respondent from the complainant herein. As indicated earlier, the averment in the counter filed by the police, was that these seized articles were never purchased from the complainant. This was not denied by the accused persons. This application was rightly dismissed by the learned Judicial magistrate, by observing that the 1st respondent Ganesh Kumar, had not approached the Court, before the disposal of the property through auction, and therefore, his claim could not be sustained under law. ( 6 ) IN the context of the above circumstances, the 1st respondent filed two revisions before the Sessions Court, which in turn allowed both the revisions and the same is subject to the scrutiny by this Court. ( 6 ) IN the context of the above circumstances, the 1st respondent filed two revisions before the Sessions Court, which in turn allowed both the revisions and the same is subject to the scrutiny by this Court. ( 7 ) THE agonizing feature in this case is, the Sessions Court, on the basis of some bills produced by the 1st respondent, though they were said to be forged, according to the complainant/petitioner, directed the return of property, holding that the 1st respondent is the bona fide purchaser of the infringed articles, especially when the question of infringement of the trade mark committed by the 1st respondents father is to be decided by the lower Court, after trial. ( 8 ) IT is also quite amazing to see that the learned Sessions Judge observed in the order, as if the complainant/petitioner seems to have no objection in return of the property to the 1st respondent, when factually it is not so. It is seen from the records that the petitioner raised objection both before the learned Judicial magistrate, as well as before the Sessions Court, stating that the said bills were forged and the properties could not be directed to be handed over to the custody of the 1st respondent. ( 9 ) AS a matter of fact, the infringed articles were seized from the possession of the accused Srinivasan, who is the father of the 1st respondent. On admitting the said fact, the father of the 1st respondent filed an application for return of the property, as early as on 22-8-1994, after the seizure, that was effected on 4-8-1994. Such being the case, it is not understandable, as to how the Sessions judge, would come to the conclusion that the auction was held without notice to the 1st respondent. The learned Sessions Judge would go to the extent of saying that the properties were recovered from the 1st respondent. This is neither the case of the prosecution, nor the case of the accused Srinivasan. ( 10 ) NO doubt it is true that in the petition, the 1st respondent stated that the articles were seized in his presence from his shop on 4-8-1994. If it be true, the father of the 1st respondent would have certainly mentioned the same in the petition filed by him on 22-8-1994. ( 10 ) NO doubt it is true that in the petition, the 1st respondent stated that the articles were seized in his presence from his shop on 4-8-1994. If it be true, the father of the 1st respondent would have certainly mentioned the same in the petition filed by him on 22-8-1994. He would also have mentioned the alleged purchase of the articles from the complainant by his son, as per the cash receipts. Therefore, the belated claim, on the basis of the alleged forged bills, has been taken into consideration by the learned Sessions Judge, resulting in the miscarriage of justice. Therefore, I feel that the order of the Sessions Court is liable to be set aside, and the order of the Judicial Magistrate passed earlier is ordered to be restored. ( 11 ) HOWEVER, it is brought to my notice that in pursuance of the orders of the sessions Court, the 1st respondent took the custody of the property and sold the same after executing a bond for Rs. 50,000/ -. However, since he received the auction amount of Rs. 51,450/- as per the orders of the Sessions Court in R. P. No. 72 of 1994, the 1st respondent is directed to deposit the said amount, before the trial Court within one month from the date of this order. ( 12 ) WITH the above observation, the revision is allowed.