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SUPREME COURT OF INDIA
P. JAGANMOHAN REDDY AND D.G. PALEKAR, JJ.
The State of U.P., Appellant
Versus
Ram Nath, Respondent.
Criminal Appeal No. 41 of 1969, D/- 24-11-1971.
Mr. O. P. Rana, Advocate, for Appellant; M/s. Nur-ud-din Ahmed and P. N. Bhardwaj, Advocates, for Respondent.
Trade and Mercandise Marks Act 43 of 1958 - Sections 78 and 79, 46, 28, 561-A, 2 (1)(v), 81, 89 (2), 82, 83 and 173 - Criminal Procedure Code, 1973 - Section 155 and 251-A - Trade Mark - Producing Similar Coins And Pieces of Gold - Whether mark had been registered as a trade mark in their name - Whether proceedings for prosecution for offences under Sections 78 and 79 of Act were not valid - Whether with or without any indication of identity of that person, and includes a certification trade mark registered as such under provisions of Chapter VIII - Whether it is registered or unregistered - Whether it is current or has been removed from register, or has been abandoned - Whether Habib Bank Ltd., being a foreign Bank is not a citizen and whether it has any right in trade mark is therefore irrelevant and does not affect validity of proceedings or of charges framed against accused – Held, It is apparent from this definition that for purposes of Chapter X of Act which deals with criminal offences, a trade mark includes a registered as well as unregistered trade mark - An offence under section 78 or 79 therefore relates to a trade mark - Offences under Section 78 and 79 consist in deception and application of a trade mark which is in use and which signifies a particular type of goods containing that mark - There is therefore, no validity in contention that infringement of trade mark of Habib Bank Ltd., merely gives rise to civil action, in respect of which no prosecution will lie - Provisions contained in Chapter IV in which is contained Sec.28 relate to effect of registration and have no bearing on question before Court - It was nextly urged that Trade Marks Inspector had no right to make a complaint under Sections 78 and 79 and therefore prosecution was invalid - This contention also in Court view is misconceived - A perusal of sub-section (2) of Sec. 89 would show that no Court inferior to that of a Sessions Judge, Presidency Magistrate or Magistrate of 1st Class shall try an offence under this Act; while sub-sec. (1) provides that no court shall take cognizance of an offence under Sec.81, Section 82 or Sec.83 except on complaint in writing made by Registrar or any officer authorised by him in writing - Merely because sub-section (1) of Sec.89 refers to manner of taking cognizance in respect of offence under Section specified therein, it does not preclude cognizance of other offences specified in Chapter X from being taken under procedure prescribed by Criminal Procedure Code - It is apparent that offences under Sections 78 and 79 are punishable with imprisonment of two years or with three years if they fall under respective provisos to said Sections - This being legal position in this case Magistrate in Court view has followed correct procedure - Information in respect of commission of an offence under Section 78 and 79 of Act was brought to notice of Magistrate by a letter from Trade Marks Inspector - Magistrate directed police to register a case and investigate it - Police accordingly complied with it and made a report thereon - On receipt of report Magistrate satisfied himself that respondents had received documents referred to in Sec. 173 - After a consideration of those documents he examined accused and after giving an opportunity to both prosecution and accused framed a charge on being satisfied that there was a prima facie case - Procedure followed therefore is unexceptional - Appeal allowed.
Judgment
P. JAGANMOHAN REDDY, J.:- This Appeal is by Certificate against the order of the High Court of Allahabad quashing the charge framed by the Additional City Magistrate, Kanpur against the accused Respondent for offences under Sections 78 and 79 of the Trade and Mercandise Marks Act 43 of 1958 (hereinafter referred to as the ACt ). Respondent 1 to Respondent 4 are the partners of the firm M/s. Pannalal Durga Prasad of Nayaganj, Kanpur which is a firm of bullion merchants who have also been minting gold coins with a trade mark said to be similar to the one which is the registered trade mark of M/s. Habib Bank Ltd., Bombay and which was in force on the day when the alleged offence is said to have been committed.
2. On 24th October 1962 the Inspector of Trade Marks on behalf of the Director of Industries wrote a letter to the Additional City Magistrate I, Kanpur that M/s. Habib Bank Ltd., Bombay which is one of the foremost refiners of gold has been producing coins and pieces of gold of various shapes and sizes for sale commonly known as Habib Ka Sona and Sher Chap Pansa under a distinct trade mark, the most striking feature of which has always been a device of a lion holding a sword with his forearm against the back ground of a rising sun. This device of lion is with the word Habib Bank Ltd above it and Shuddha Sona below it in Gujarati script with a dotted circle along the border on the face of the device of a coin and a wreath along the border on the other face with the words Habib Bank Ltd contained in the upper half and Pure Gold in the lower half of the space within it in English script with the description of weight and quality. This trade mark it was stated had acquired a distinctiveness in respect of gold coins and pieces produced by them on account of long and extensive use, that the people in that part of the country particularly the people in the rural areas have always had a great fancy for the gold pieces and coins of Habib Bank Ltd., on account of their fineness for use in preparing ornaments as also as the safest investment of their savings by purchasing and retaining these coins and pieces, and consequently such gold coins continued to be highly popular among the people in the rural areas as well as in the bullion trade, and are distinguished on account of the above noted features and trade mark.
3. It was alleged that M/s. Panna Lal Durga Prasad, Kanpur are producing similar coins and pieces of gold and to them they apply a trade mark which is deceptively similar to the above registered trade mark of M/s. Habib Bank Ltd., the only difference between the two was that instead of Habib Bank Ltd., in Gujarati script on one face and English script on the other face, the words Habib quality are used and the words pure gold in English script is preceded by the letters P & D. It was averred that this trade mark adopted by M/s. Panna Lal Durga Prasad is bound to deceive not only the buyers who are ignorant of English and Gujarati scripts but even unwary purchasers from urban areas are likely to be deceived. Though by a registered letter the Trade mark office had drawn the attention of the firm regarding the use of the mark by them and had requested them to indicate the period for which they had been using it and whether the mark had been registered as a trade mark in their name, they had not chosen to reply even though they received the letter. It was further stated that a goldsmith Shri Pyarelal in Nayaganj market is also falsely applying the registered trade mark of M/s. Habib Bank Ltd., and has in his possession dies and other imstruments for being used for falsifying the trade mark.
4. On these allegations the Magistrate was requested to take necessary action under the law against those mentioned in the letter in respect of offences under Sections 78 and 79 of the Act, by directing the Police to investigate the case. On receipt of this letter on the same day namely 24-10-1962 the Magistrate directe
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