RAM NATH Vs. STATE

JUDGEMENT

(1.) Sri R.S. Agarwal, Additional Sessions Judge, Kanpur, by an order dated 14 -4 -1965, has made this reference to this Court. He has recommended that proceedings pending before the Additional City Magistrate II, Kanpur, in prosecution of the accused for offences Under Ss. 78 and 79, Trade and Merchandise Marks Act at the instance of Sri K.N. Tandon, Inspector, Indian Trade Marks Section, Director of Industries, Kanpur, be quashed.

(2.) The case for the prosecution as it emerges from the aforesaid report of Sri K.N. Tandon is that M/s. Habib Bank Limited, Bombay, had been one of the firms and refineries of gold and had been carrying on the business of producing coins and pieces of gold of various shapes and sizes for sale. Such articles were sold and purchased under the description "Habib Bank Ka Sona' or "Sher Chap Sona". M/s. Habib Bank Ltd. had been applying distinct trade marks which contained the device of lion holding a sword with its forearms against the background of rising sun. The aforesaid device along with the words "Habib Bank Limited" written above it, and the words "Shudh Sona", below it, in Gujrati script and dotted circle and border on the face of the device over a coin and the device of wreath along with the border on the other face with the words "Habib Bank Limited" contained in the upper half "Pure Gold" in the lower halt of the space within it in English script besides the description of weight and quality, constituted the trade mark which was registered in the name of M/s. Habib Bank Ltd., Bombay. The Registration Number of the aforesaid trade mark is 95718. The above trade mark had been registered in the name of M/s. Habib Bank Ltd. from 12 -5 -1944 it was renewed for a period of 15 years from 12 -5 -1951. The prosecution case went on to allege that the accused was a partner of M/s. Panna Lal Durga Prasad and that the aforesaid firm prepared similar coins and pieces of gold and applied the aforesaid registered trade mark of M/s. Habib Bank Ltd. deceptively, the only difference being that instead of writing "Habib Bank Ltd." these articles prepared by M/s. Panna Lai Durga Prasad contained the word "Habib Quality" and the words "Pure Gold" in the aforesaid trade mark in English script were preceded by letter 'P' and 'D' on the articles produced by the aforesaid firm. This conduct on the part of the accused deceived the buyers and unwary purchasers. Searches were made at the shop of M/s. Panna Lal Durga Prasad at Nayagunj as well as at their refinery at Rail Bazar, Kanpur as a result of which certain recoveries were effected. It was alleged that the partners of the firm were liable to be prosecuted for offences Under Ss. 78 and 79 of the Trade and Merchanddise Marks Act, 1958.

(3.) After the charge had been framed against the accused the prosecution examined before the learned Magistrate one Sri P.E. Wadia, Senior Attorney Clerk, Habib Bank Ltd., Bombay, as the first prosecution witness. After the aforesaid witness had been examined and cross examined the accused moved an application on 29 -5 -1964, before the trial magistrate bringing to his notice that the statement of Sri Wadia, prosecution witness, clearly indicated that Habib Bank has stopped dealing in gold and had ceased to manufacture gold coins. It was pointed out that it was apparent from the testimony of Sri Wadia that Habib Bank Ltd. had destroyed the dye sometimes in the year 1954. The accused submitted in that application that the trade mark of Habib Bank Ltd., in respect of which offence is said to have been committed by the accused, had become ineffective and consequently was thrown open to the public. It was prayed that further proceedings for prosecution of the accused be stopped, that they may not be unnecessarily harassed and that the complainant be directed to seek appropriate remedy in civil court.