GOVT OF W B Vs. NITYA GOPAL BASAK

JUDGEMENT

(1.) Nitya Gopal Basak, Biswanath Basak and Hari Gopal Basak, the three respondents in this appeal, were placed on trial before the learned Metropolitan Magistrate, 11th Court Calcutta, pursuant to a charge-sheet submitted by the Police, with charges under S.63 Copyright Act, 1957, and under S.78, Trade and Merchandise Marks Act, 1958, framed against them. The former was based on the allegation that they knowingly infringed the copyright of the Bengali book "Adarshalipi O Saral Barna parichay" owned by Sri Sita Nath Basak. The other was for falsifying trade mark in respect of the said book and for being in possession of dyes, blocks and other instruments for that purpose. Against Nitya Gopal Basak and Biswanath Basak a separate charge under S.79, Trade and Merchandise Marks Act 1958, was also framed on the ground that they had sold and had in their possession for sale, and for other purposes of trade, spurious copies of the said book. The trial ended in an order of acquittal and aggrieved thereby the State of West Bengal, through its Superintendent and Remembrancer of Legal Affairs, filed this appeal.

(2.) While recording the order of acquittal in respect of the charges framed under the Trade and Merchandise Marks Act (T.M. Act for short) the learned Magistrate observed that under S.50 of the T.M. Act it was obligatory on the part of the owner of the trade mark to have it registered within a period of 3 years from the date of coming into force of the Act, that is from 18-10-58, and since there was nothing on record that the trade-mark was registered within the stipulated period, no offence could be said to have been committed under the T.M. Act. As regards the charge under S.63 of the Copyright Act (C.R. Act) the learned Magistrate similarly held that as the copyright was not registered as required under Ss.44 and 45 of the C.R. Act the prosecution was not maintainable. The learned Magistrate also held that in the absence of any expert opinion it was not possible for the Court to come to a finding that the materials of the book, in respect of which copyright was claimed, were reproduced in the books printed and published by the respondents.

(3.) Mrs. Moitra appearing for the appellant did not challenge the observations of the learned Magistrate so far as they related to the charges under the T.M. Act. After going through the relevant provisions of the said Act I am also in agreement with the learned Magistrate that in the absence of any evidence to show that the trade-mark in respect of the book in question was registered, the respondents cannot be said to have committed any of the two offences under the T.M. Act, alleged against them.