KARAN SINGH Vs. MOHAN LAL

JUDGEMENT

(1.) This is an appeal under Sec. 417(3) of the Code of Civil Procedure, against an order of acquittal recorded by a Magistrate 1st Class at Aligarh, in a case under Sections 78 and 79 of the Trade and Merchandise Act 1958 (Act No. 43 of 1958) The applicant had filed a complaint in the court of the Magistrate at Aligarh on 11.5.1960 inter alia on the allegations that he manufactures for sale an allopathic medicine styled as "Ark Karn Prakash Siktara Ki Bottle" which bears a registered trade mark, that the respondent had set up a shop in front of the applicant's business premises and previously had been selling there a medicine under the name of 'Sheothara Ki Bottle' on the patter of the applicant's medicine, that since it could not command any appreciable sale in the market, the respondent falsified the applicant's trade mark, and put a label as "Siktara ki asli Bottle-Ark Sheoprakash" on his bottles which is an limitation of the applicant's trade mark and which is creating confusion in the public and deceiving an unwary purchaser as it is passing off in the market as the medicine manufactured by the applicant. This, the applicant asserted, is not only causing great loss to the applicant but had also resulted in deceiving the public and the respondent was, therefore, liable for punishment under the law. On 7.6.1960 the respondent filed a written objection before the trial court challenging the maintainability of the complaint in which he asserted that he was innocent and that a civil suit no. 1 of 1951 had been filed by the complainant against him in the court of District Judge, Aligarh, which was subsequently compromised between the parties, and that the present compliant had been filed only for causing harrassment to him and that the matter could not be dealt with by the criminal courts and that if there was any bona fide dispute between the parties the same could be settled only by the civil courts or by the District Judge. He also denied therein to have either falsified complainant's trade marks or to have falsely applied the same to his goods or to have given any false description to his medicine.

(2.) After the conclusion of the prosecution evidence the respondent filed another written statement on 28.11.1962. In this written statement he admitted that he has been manufacturing for sale an Ayurvedic medicine 'Ark Sheoparkash-Siktara Ki Asli Bottle' but he asserted that the label on the same was wholly dissimilar to the complainant's label and could be distinguished even by a naked eye. He again asserted that there was a civil suit between the parties which was compromised and it was one of the terms of the compromise that the parties will continue to sell their respective medicines in the same manner and under the same name and style as they had been doing before. In his statement before the court on 25.9.1962 also the respondent had raised similar pleas against the complainant's allegations.

(3.) The parties led evidence in the case. The trial court, after hearing them at length, dismissed the complaint on a preliminary point that it was barred under Sec. 92 of the Act because in its opinion the complainant and his chemist "knew well about this falsification and infringement at least before 1956, and even if they came to know about it at the end of 1957 this complaint, which was filed on 11.5.1960, is clearly time barred." It will be noticed that the learned magistrate did not decide the case on merits though the case seems to have had a protracted hearing and the parties had led all the necessary evidence. In my opinion it was improper on the part of the magistrate to have refrained from giving his findings on the questions of fact and law which arose in the case when the whole matter was before him.