STATE OF U.P. versus RAM NATH, PARTNER M/S. PANNA LAL DURGA PRASAD, KANPUR

Citation: [1972] 2 S.C.R. 572 · Decided: 24-11-1971 · Supreme Court of India · Bench: P. JAGANMOHAN REDDY · Disposal: Appeal(s) allowed

Judgment (excerpt)

572 
STATE OF U.P. 
v. 
RAM NATH, PARTNER M/S. PANNA LAL DURGA 
PRASAD, KANPUR 
November 24, 1971 
[P. ·JAGANMOHAN REDDY AND D. G. PALEKAR, JJ.] 
Tradi>-and Merchandise Marks Act (43 of 1958), ss. 28, 78, 79 and 
89--0fjecnes under ss. 78 and 79-Prosecution if could be initiated by 
Inspector of trade n1arks-Discontinuance of trade 1nark-Use by another 
-If civil matter. 
The Inspector of trade marks wrote a letter to the Magistrate and re· 
quested him to take necessary action under law against the respondents on 
the allegations that the respondents were producing coins and pieces of gold 
and ·were applying to them a trade mark which was deceptively similar 
to the registered trade mark of a bank, and which was in force when the 
respondents produced the coins. The Magistrate directed the police to 
register a case under the Trade and. Merchandise Marks Act, 1958, and 
investigate it. On receipt of the police report the Magistrate followed the 
procedure prescribed by s. 25 lA of the Criminal Procedure Code, and 
framed charges under ss. 78 and 79 of the Act on being satisfied that there 
was a prima facie case. After one of the prosecution witnesses was 
examined the respondents raised the question that the evidence disclo;ed 
that the bank had discontinued the use of the trade mark and a question 
of abandonment which could be more suitably dealt with by the 
civil 
court, had arisen. 
The High Court on reference by the Sessions Court held that : (1) 
the prosecution could not be initiated by the Inspector of Trade Marks in 
view of s. 28 of the Act, (2) whether the question of the abandonment of 
the trade mark amounted to an express or implied consent for use by the 
respondent was a matter for the civil court and not for a criminal prose-
cution and (3) the prosecution for offences under ss. 78 and 79 was not 
valid because the Bank. was declared to be a foreign bank by the Reserve 
Bank of India in 1960 and hence had no rights as a citizen of India. 
Allowing the appeal to this- Court, 
HELD : 
(1) Merely. because s. 89(1) of the Trade and Merchandise 
Marks Act refers to the manner of taking cognizance in respect of certain 
offences specified, therein, it does not preclude the cognizance of other · 
offences specified in Chapter X of the Trade and Merchandise Marks Act 
from being taken under the procedure prescribed by the Criminal Proce-
dure Code. The offences with which the respondents were charged are 
punishable with imprisonment of two years 
and 
hence, 
being non-
cognizable, the procedure followed, in the present case, by the Magistrate, 
is unexce_otionable. Section 28 of the Act which is in Chapter JV relating 
to the effect of rogistration has no hearing on the question [578 C-H; 
579 A-Dl 
(2) An offence under ss. 78 and, 79 relates to a trade mark whether it 
is registered or unregistered. The application of a ·trade mark 'signifies a 
particular type of goods and involves deception. Therefore the fact that 
the Ba"k discontinued the use of the trade mark would ndt absolve the 
respondents. from criminal llability. 
Even if the trade mark was aban-
doned by the Bank it could only furnish a ground for a person to make 
A 
B 
D 
E 
F 
G 
H 
B 
c 
U.P. STATE v. RAM NATH (Jaganmohan Reddy,!.) 
573 
an application under s. 46 of the 'frade and Merchandise Marks f\ct to 
have the trade mark removed from the register of trade marks, but 1t do~s 
not entitle anyone to use the trade mark. [577 A; 578 A-Cl 
(3) The question whether the Bank, 
bein~ a foreign_ ?ank, is not a 
citizen and had no right in the trade mark 1s, therefor;, melevant and 
does not affoct the 
validity of the 
proceedings 
agamst the accused. 
[577 A-Bl 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
41 of 1969. 
Appeal from the judgment and order dated September 6, 1967. 
of the Allahabad High Court in Criminal Reference No. 265 of 
1965. 
0. P. Rana, for the appellant. 
Nur-ud-din Ahmed and P. N. Bhardwaj, for the respondent. 
The Judgment of the Court was delivered by 
P. Jaganmohan 
Reddy, J. 
This Appeal is by Certifi-
D 
cate 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 Merchandise Marks Act 43 of 1958 
(hereinafter referred to as 'the Act'). Respondent 1 to Respon· 
dent 4 are the partners of the firm M/s. Pannalal Durga Prasad 
i,: 
of Nayaganj, Kanpur w

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