RAM KISHORE Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) THE appellant was charged before a Magistrate, 1st Class, at Varanasi with being, on 25/11/1960, in possession of counterfeit labels which could be used to pass off his 'tobacco tins' as the goods of M /s Nandoo Ram Khedan Lal bearing 'Titli' (butterfly) trade-mark, and with being in possession for ale of 'tobacco tins' bearing counterfeit trade marks of the genuine 'Titli' brand trade- mark of M/s 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 Merchandise 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 prosecution 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. 1,000.00. With certificate granted by the High court under Art. 134 of the Constitution, this appeal has been preferred.

(3.) THE appellant was on information lodged by the complainants prosecuted for offences under S. 78 read with S. 77 and s. 79 of the Trade and Merchandise Marks Act, 1958. THE appellant submitted that whereas the complainants had on their own admission learnt about infringement of their trade-mark in 1955, criminal proceedings started in November 1960 were barred under S. 92 of the Trade and Merchandise Marks Act, 1958. It may be noticed however that the offences charged against the appellant were alleged to have been committed on 25/11/1960, anand the charge-sheet was lodged in the court of the Magistrate, 1st Class, on 22/03/1961. Section 92 of the Trade and Merchandise Marks Act, 1958, insofar as it is material, provides: 'No prosecution for an offence under this Act........................... shall be commenced after the expiration of three years next after the commission of the offence charged, or two years after the discovery thereof by the prosecutor, whichever expiration first happens.' In substance the appellant in relaying upon the bar of S. 92 seeks to substitute for the words 'after the discovery' the words ' after the first discovery', and for the words 'after the commission of the offence charged' the words 'after the commission of the first infringement of trade-mark'. THE Legislature has deliberately not used those expressions, and there is no warrant for substituting them in the section and thereby substantially modifying the section.