LAWS(PVC)-1928-2-28

AKHOY KUMAR DEY Vs. EMPEROR

Decided On February 06, 1928
AKHOY KUMAR DEY Appellant
V/S
EMPEROR Respondents

JUDGEMENT

(1.) There is no dispute about the faces of these cases which are that the National Bank of India sells gold bars in the Calcutta markets bearing a stamp showing the name of the bank in English and Guzrati with the words "100 touch" in Guzrati and the name3 of the bullion brokers, whoever they may be, in English. On 10 and 19 March 1926, certain men employed by the bank bought on each occasion one gold bar from the shop of the petitioner Akshoy Kumar De and these bars bore the counterfeit mark of the National Bank upon them. Further, the police searched the petitioners shop on 22 March, and found several other gold bars bearing this mark and some dies for stamping the mark upon them. The defence taken was that the gold bars sold are composed of what is known in the market as bator gold and that the petitioners had sold bars of this make under this particular mark in the open market for years past. The learned Chief Presidency Magistrate found that, though it was true that the firm had been using the counterfeit mark for some time, they had not succeeded is establishing this defence or their further defence that other gold bars bore the same mark as the English gold bars of the National Bank, and he further found that, by their use of the counterfeit mark, the accused firm had the opportunity of deceiving others and that it was no answer to the charge to say that the counterfeit would not deceive an expert. He, therefore, held that the mark in question was the property of the National Bank used by them to distinguish their English gold and that the mark used by the accused firm was counterfeit. These findings have not been challenged before us.

(2.) It has, however, been argued before us, as it was argued in the Court below, that the prosecution is barred by Section 15, Merchandise Marks Act (4 of 1889).

(3.) This section is in the following terms: No such prosecution as is mentioned in the last foregoing section shall be commenced after the expiration of three years next after the commission of the offence, or one year after the first discovery thereof by the prosecutor, whichever expiration first happens.