LexRAM KISHORE versus STATE OF U.P.
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RAM K15HORE A v. STATE OF U.P. March 28. 1966 B IK. N. WA?>CHOO, J. c. SHAH AND s. M. SIKRI, JJ.) Trade and Merclumd'se Marks Act, 1958 (Act 43 of 1958) .. ss. 77, 92-Time prescribed for launching pro.<ecution-Date of first dis- cover!/ of infringPT7!€nt of trade mark whether relevant for Teckc.:riing such time-Plea of acquiescence uihen can be raised. C In 1955 the complainants protested to the appellant that he was infringing their trade-mark but no fu~ther action was taken by them at that time. In November 1960 the appeJlant was found in pos'5- sion of labels and tobacco tins carrying marks deceptively similar to the complainants' trade mark. After investigation the police lodged in March 1961 a charge-sheet against the appellant in respect of aJleged offences under s 78 read with "· 77 and s. 79 of the Trade and Merchandise Mark• Act 1958. The trial M3gistrate convicted the appellant who was however acquitted by the Ses.sions Judge princi- pally on the ground that the prosecution w>as barred as it was not instituted within the per:od prescribed bv s. 92 of the Act. In appeal against the orde" of acquittal the High Cou"t convicted him but granted him a certificate under Art. 134 of the Constitution. HELD: The period under s. 92 cf 1ho Trade and Merchandise Marks Art. 1958 commences to run from the date of the commission of the off.~r..r:-e chRrj!rd or fTom the- d<)te of dlscm~ery1 b,1 the prosecu- tor of the a/fence charged. The period docs not have to be reckoned from the first discovery of infringcm•·nt of trade-mark by the pro- secutor. Tn this respect s. 92 of tho Act of 1958 is matcr:allv difTcrent from s. 15 of toe Merchandise Marks Aot 4 of 1839. [73A-D] Ruppell v. Ponnusami Tava-i and Anr., I.L.R. 22 Mad 488 and Dau Dayal v. State of Uttar Pradesh, A.LR. 1959 S. C. 433, distin- guished. Abdulsatar Khan Kamruddin Klian v. Ratan!al Kislienalal, T.L.R. 59 Born. 551 anrl Emperior v. Chhotalal Amarchand, J.L.R. (1937) Born. 183, referred to. D E F -+ There was nothing to •ubstantiate the appellant's plea based on • 1. 77 of the AM that tho complainants h'd acquiesced in his use of the deceptive trade-mark. CRl}fi~AL APPELLATE JURISDICTION: Criminal Appeal No. 37 G cl!%~ ·~ ~ I ' ' •. Appeal from the judgment and order dated November 26. , 1963 of the Allahabad High Court in Government Appeal No. 782 of 1962. S. P. Sinha. G. L. Sanghi, Ganpat Rai, E. C. Agarwala, S. S. Khanduja for P. C. Agarwala, for the appellant. B Atiquor Rehman and O. P. Rana, for the respondent. J ' A ., B c D E F • G :a: RAM KISHORE V. U, P. STATE (Shah, J.) 69 The Judgment of the Court was delivered by Shah, J. The appellant was charged before a Magistrate, 1st Class, at Varanasi with being, on November 25, 1960, in possession of counterfeit labels which could be used to pass off his "tobacco tins" as the goods of Mis Nandoo Ram Khedan Lal bearing "Titli" (butterfly) trade-mark, and with being in possession for sale of "tobacco tins" bearing counterfeit trade marks of the genuine "Titli" brand trade-mark of Mis Nandoo Ram Khedan Lal. The Trial Magistrate convicted the appellant and sentenced him to suffer simple imprisonment for three months for offences under s. 78 read with s. 77 and under s. 79 of the Trade and Mer- chandise Marks Act 43 of 1958, and directed the two sentences to run consecutively. In appeal to the Court of Session, Varanasi, the order passed by the Trial Magistrate was set aside and the appellant was acquitted principally on the ground that the prosecu- tion was barred because it was not instituted within the period prescribed by s. 92 of the Act. The High Court of Judicature at Allahabad however set aside the order of acquittal and restored the conviction, but reduced the sentence on each of the charges to a fine of Rs. 1,000 i-. With certificate granted by the High Court under Art. 134 of the Constitution, this appeal has been preferred. Mis Nandoo Ram Khedan Lal-who will hereinafter be called "the complainants"-carry on in the town of Varanasi, business in "chewing tobacco". They were marketing their product for the last many years under a trade-mark styled "Titli" (butterfly). The label on the containers of "chewing tobacco" shows figures of three butterflies on yellow-green back- ground and the legend "Titli" in Devnagari and English charac- ters. The appellant who carried on business also in "chewing tobacco" co
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