BHAGWANT LAL Vs. SITA RAM & ANOTHER

JUDGEMENT

(1.) The two respondents Sita Ram and Qazi Mohammad Ibrahim Siddiqi were prosecuted under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958. They were convicted by the trial court and sentenced to a fine of Rs. 100.00 on each count. It was further ordered that, in default of payment of fine, they would undergo simple imprisonment for two months. On appeal, the Temp. Sessions Judge, Orai, set aside the conviction and sentence of Sita Ram under Sec. 78 but maintained his conviction and sentence under Sec. 79 of the Act. The appeal of Qazi Mohammad Ibrahim Siddiqi was dismissed in toto. Thereupon the respondents filed a revision in this Court. By order dated Sept. 27, 1963, a learned Judge of this Court allowed the revision, set aside the order of the appellate court and directed rehearing of the appeal. He further directed the appellate court to decide the question whether the prosecution was time barred. The appeal was re-heard and the Civil and Sessions Judge, Orai, held that the prosecution was time-barred and has acquitted both the respondents. It is against this order of acquittal that the complainant has filed this appeal.

(2.) The only question, which arises for consideration in this appeal, is whether the prosecution was time-barred or not. The facts necessary for the determination of this question may now be stated. The complainant Bhagwant Lal Juneja is the proprietor of a Soap Trade Mark No. Rs.5'. It came to his knowledge that the respondents were infringing his trade mark and in Aug., 1958, he served a notice on the respondents, asking them to refrain from infringing his trade mark. According to the complainant, the respondents stopped infringing his trade mark but some time afterwards he again found that they were infringing his trade mark. Thereupon he again gave a notice dated Sep. 24, 1959, to the respondents. As the respondents paid no heed to this notice, he filed a complaint in the court of the Sub-Divisional Magistrate against the respondents and two others on Sept. 29, 1960. The question is whether this complaint is time-barred under Sec. 92 of the Act. The relevant portion of this Sec. reads thus:

(3.) It was urged on behalf of the respondents that, when once there was infringement of the trade mark and the infringement came to the notice of the complainant and he failed to file his complaint within the period of limitation prescribed, no complaint can be filed for any infringement thereafter. We are unable to accept this proposition. Sec. 92 of the Act bars the prosecution for an offence if the complaint for that offence is not filed within three-years of the commission of the offence or two years of the discovery thereof. It does not bar prosecution for any subsequent offence if no prosecution has been launched in respect of the earlier offence. Each infringement of the trade mark amounts to a separate and distinct offence and separate prosecutions will lie therefor. If the complainant fails to prosecute the person infringing his trade mark for one infringement, he is not debarred from prosecuting him for another subsequent infringement. To hold otherwise would be conferring upon the person, who infringes the trade mark, a prescriptive right to commit an offence once the complainant fails to prosecute him within the period of limitation. In State of U. P. Vs. Ram Kishore, 1964 ALJ 190 a Division Bench of this Court has taken similar view. In this case, the infringement was first discovered in 1955 and the complainant sent a notice to the person infringing the trade mark but he did not file any complaint at that time. Another infringement was noticed in 1960 and a prosecution was launched, was held by the Division Bench that the prosecution was not barred by Sec. 92 of the Act on account of the failure of the complainant to prosecute within two years of the discovery of the first infringement in 1955. We are fully satisfied that the prosecution of the respondent was not barred by Sec. 92 of the Act. Before the appellate court the respondents did not challenge the fact of the infringing of the trade mark by them and accepted the findings of the trial court on that point. Learned counsel for the respondents has not urged anything before us to throw any doubt on the findings of the trial court.