H.K Choudhuri, J.:— This is an appeal by one Bhrigunath Pandey under Section 417(3) of the Cr PC in a case in which respondent Ramnarain Lal Panjiara, proprietor of an alleged firm Pratap Ram Gobind Ram, resident of Nirmali, within the district of Bhagalpur, was tried for offences under Ss. 482, 483 and 486 of the Indian Penal Code and Section 68 of the Trade Marks Act, 1940, by a Magistrate of the first class at Bhagalpur and acquitted on the ground that the complainant had failed to substantiate his case and also on the ground that the prosecution was barred under Section 15 of the Indian Merchandise Marks Act.

2. The complainant is the Manager of firm Partab Mull Gobind Ram carrying on business at 119 Khengrapatti Street, Calcutta. Finn Partab Mull Gobind Ram was manufacturing and selling for more than 35 years a liquid medicine in a phial, enclosed in a paper carton, bearing the name “Satya Jiwan”. It was stated that by long and continuous use of the said words “Satya Jiwan” and the said carton the medicine had acquired a reputation and distinctiveness in the market as the goods manufactured by the said firm. The carton and the name “Satya Tiwan” were both registered under the Trade Marks Act being registered No. 107960 and registered No. 127541 respectively. It was alleged that the respondent was manufacturing and selling a medicine bearing the same name “Satya Jiwan” for five or six years prior to the filing of the complaint. The phial of the respondent's medicine and the carton were similar to those of the firm of complainant's master, the name of the firm producing the medicine being mentioned as Pratap Ram Gobind Ram, 159 Khengrapatti Street, Calcutta.

3. The registered number of the trade mark of the medicine “Satya Jiwan” manufactured by the respondent was stated to be 31.47, The complainant asserted that there was no firm by the name of Pratap Ram Gobind Ram at 159 Khengrapatti Street, Calcutta. The complainant's firm instituted a civil suit against the respondent in the High Court of Calcutta in respect of this infringement of their trade mark and prayed for a permanent injunction restraining the respondent from manufacturing and selling his goods under the name “Satya Jiwan”. Respondent did not contest the suit and an ex parte decree was passed against him on 17-12-51.

4. According to the allegation in the complaint the respondent, in spite of the decree passed against him was manufacturing and selling his goods under the name “Satya Jiwan” and using a carton, which was colourable imitation of the carton of the medicine of the complainant's master's firm, that the respondent was wrongfully and fraudulently passing off his goods as manufactured by the complainant's master's firm by selling the same in exactly the same size of phial as that of the complainant's master's firm in a packet exactly similar to that of the complainant's master's firm in shape and size, and that the respondent has made a false propaganda and had distributed notices at Bhagalpur and other places sometime before the institution of the case that he had registered No. 3147 for “Satya Jiwan”, although in fact he had no such registered trade mark number.

5. As the respondent was alleged to be selling his spurious goods at Bhagalpur town the complainant instituted this complaint in the Court of the Sub-divisional Magistrate of Bhagalpur on 8-9-52. Along with the petition of complaint the complainant filed a certified copy of the decree of the High Court of Calcutta together with one phial of the medicine “Satya Jiwan” manufactured by the complainant's master's firm and one phial of the spurious medicine of the respondent.

6. The complainant further stated in his petition of complaint that he had come to know that the respondent had sent a parcel of “Satya Jiwan” manufactured by him under the alleged name of his firm Pratap Ram Gobind Ram for sale in the Bhagalpur market and that the said phials had reached Bhagalpur station and were lying in the godown of the N.W Railway there. It was submitted that since the accused was not likely to produce any phial of medicine manufactured by him it was necessary that the parcel containing his goods should be seized. The Sub-divisional Magistrate accordingly issued a search warrant under Section 96 of the Cr PC for recovery of the consignment. In due course, the consignment was seized and kept in the custody of the court (exhibit I).

7. On 29-9-50 Sub-Inspector Tarni Pd. Sinha, attached to Nirmali P.S searched the house of the respondent and recovered one bundle of notices of “Satya Jiwan” medicine (exhibit II), one bundle of label of “Satya jiwan” (exhibit III), and three postcards (exhibits IV to IV-2). On the same day be searched the house of one Ambika Pd. Bodhnarain of Nirmali and recovered nine phials of “Satya Jiwan” (exhibit VIII) and one notice of “Satya Jiwan” which was pasted on the wall of the shop (exhibit VII). On a search being made of the person of the respondent a letter paper (exhibit XII) and two envelopes (exhibits VI and VI-1) were also recovered.

8. The defence was a plea of innocence. The respondent did not make any statement under Section 342 of the Cr PC. On being asked whether he would like to make any statement he replied that he would file a written statement. In the written statement which has filed, he asserted his innocence and further stated that the prosecution was barred under Section 15 of the Indian Merchandise Marks Act.

9. The judgment of the court below is an unsatisfactory document and is for the most part unintelligible. Without applying his mind to the points which required determination, the learned Magistrate took up the evidence of P.W 7, one of the four witnesses mentioned in the petition of complaint and started discussing it. He wrongly stated that of the witnesses mentioned in the petition of complaint P.W 7 was the only witness examined in court. He overlooked that another witness named in the petition of complaint had also been examined as P.W 13.

10. The learned Magistrate discarded the evidence of Madanlal Dubev (P.W 7) on wholly irrelevant and superficial considerations and held that the complainant had failed to make out his case. On equally frivolous grounds he held that the complainant had not led evidence to show has to who had booked the consignment which was seized by the police at Bhagalpur railway station. He also made some adverse comment on the search made in the house of the respondent on 29-9-52 on the ground that the only search witness examined in the court was not a resident of village Nirmali.

11. At the hearing before us the recovery of the articles, mentioned earlier, from the house of the respondent was not specifically challenged. The first question for consideration is whether the respondent has used a false trade mark in a manner reasonably calculated to cause it to be believed that the goods so marked are the moducts of firm Partab Mull Gobind Ram of 119 Khengrapatti Street Calcutta, In order to determine this question I would give the description of the two medicines side by side.

12. The medicine “Satya Jiwan” manufactured by Messrs Partab Mull Gobind Ram is packed in a light green carton. The label on the front Mentions the trade mark as “Satya Jiwan Registered No. 107960”. Below it is mentioned the composition of the liquid. At the bottom is printed the name of the firm, viz., Partab Mull Gobind Ram, Calcutta. On the back also appears the name “Satya Jiwan” with the same registered number. In a white enclosed space below it appear the names of the various diseases which are said to be cured by the use of this medicine. Further down, appears the name of the firm.

13. The entire label on this side is printed in Hindi. On the two sides are printed the name “Satya Jiwan” the registered number and the name of the firm in Bengali and Urdu respectively. At the bottom appears a circular label in red with the monogram P.C and the words “superior quality”. On the top of the carton also the name of the medicine is mentioned with a circle in it bearing the words “Partab Mull” on the top and “Gobind Ram” at the bottom. The phial of the medicine, which is of small size, also bears a label containing the words “Satya Jiwan” in Hindi, English and Bengali. At the bottom appears the name of the firm as well as the address, viz., 119, Khengrapatti, Calcutta.

14. The medicine of the respondent is packed in a dark green carton. The label on the front bears the words “Satya Jiwan Registered No. 3147”. Below it are printed the names of the various diseases for which the medicine is claimed to be a remedy in an enclosed white space. At the bottom appears the name of the firm, viz., Pratap Ram Gobind Ram, Calcutta. The print on this side is entirely in English. On the back of the carton appear the words “Satya Jiwan Registered No. 3147”. Then there appear the names of the various diseases for which the medicine is said to be a specific.

15. Then appears the name of the firm. The print on this side is entirely in Hindi. It is worthy of note, that the names of the diseases as printed in both the cartons are identical. At the bottom of the carton appear the alleged ingredients of the medicine. On the two sides appear the words “Satya Jiwan, Registered No. 3947 — Pratap Ram, Gobind, Ram. Calcutta” in Bengali and Urdu respectively. The design of the carton is exactly similar to that of the complainant's goods with this difference that the name Partab Mull is printed as Pratap Ram.

16. Putting the two phials and the two cartons side by side, I have not the slightest doubt that in spite of some petty differences the respondent's goods are an imitation of the goods of the firm of complainant's master and that the unwary public are liable to be misled by the resemblances. In Emperor… v. Chhotalal Mansukhram…Accused ., AIR 1937 Bom. 1 (FB) their Lordships of the Bombay High Court have laid down that the test is whether there is such a similarity in the trade mark, label and general get-up as might mislead an ordinary purchaser who would not be likely to notice the differences, or attach importance to them. Applying this test to the present case I have no hesitation in holding that the respondent has marked his goods in a manner reasonably calculated to deceive any unwary purchaser and to cause him to believe that the goods are the manufacture of Messrs Pratab Mull Gobind Ram of 119 Khengrapatti Street. Calcutta.

17. The firm name printed by the respondent on the label of the phial and on the carton is a bogus one, Sudhir Kumar Chatterjee Sub-Assessor of the Calcutta Corporation (P.W 9), has proved that there is no such premises in Khengrapatti Street at Calcutta bearing No. 159. The letter of the Corporation of Calcutta in reply to the enquiry made by Messrs Partab Mull Gobind Ram in this connection is exhibit 10. Exhibit 11 is the copy of the assessment book showing that there is no such premises as 159 Khengrapatti Street in the assessment books.

18. It was urged by learned counsel for the respondent that there was no evidence to connect the respondent with this so-called firm Pratap Ram Gobind Ram the manufacturers of the spurious medicine. The contention is without any substance. It is undisputed that the suit on the original side of the High Court of Calcutta was instituted by Messrs Partap Mull Gobind Ram against the respondent. The respondent, however, did not appear to contest the suit and allowed an ex parte decree to be passed against him on 17-12-1951. It is, therefore, now futile on his part to urge that he has no connection with the manufacturers of the spurious medicine.

19. Following the decree, a notice was issued on behalf of Messrs Partap Mull Gobind Ram on 9-5-1952 informing the respondent of the decree restraining him his servants and agents from infringing the decree-holder's trade mark Nos. 107960 and 127641 by manufacturing the medicinal preparation and selling the same in the market under the name “Satya Jiwan” in a carton which was a colourable imitation of the decree-holder's carton. A photo copy of the decree was also enclosed with the notice. The respondent was told that unless he obeyed the said decree legal steps would be taken against him.

20. The respondent, however, took no notice of this letter. There are then a series of correspondence between the respondent and Messrs Kiran. Shankar and Company, Bhagalpur (exhibits 4-1 to 4-8). It appears that this firm was carrying on negotiation with the respondent for the sale of the latter's goods and had actually sent Rs. 100/- by way of advance. An agreement entered into between the respondent and this firm creating an agency in favour of the latter has also been produced on behalf of the complainant (exhibit 8). All these letters which were issued under the firm name Pratap Ram Gobind Ram bear the signature of the respondent.

21. The learned Magistrate refused to look into these letters on the frivolous ground that P.W 7, the Manager of Messrs Kiran Shankar and Company, admitted that they had not been written in the witness's presence. P.W 7, however, clearly stated in his examination-in-chief that he knew the handwriting of the respondent, the writer of the letters. Apart from these documents, one bundle of notice of “Satya Jiwan” besides other papers were recovered from the house of the respondent on 29-9-1952, Oral evidence has also been adduced on behalf of the complainant to show that it was the respondent who personally advertised and sold the spurious medicine at various places including Bhagalpur in August or September 1952 (vide P.Ws 3, 5 and 13). I may also refer to the written-statement filed by the respondent in this case. In paragraph 10 he states:

“That the evidence on record clearly shows that whatever propaganda is alleged to have been made by this accused by documents was only to push sale of his articles and not to mislead the public, by any propaganda to pass off his article as being that of any other person”.

22. In view of this overwhelming evidence I hold that it has been established that it was the respondent who was manufacturing and dealing in these goods under the bogus firm name of Pratap Ram Gobind Ram.

23. It was next argued that there is no clear evidence to show that it was the respondent who had booked the consignment which was seized at Bhagalpur. I am unable to accept this contention as correct. I have already referred to the eight letters which passed between the respondent and Messrs Kiran Shankar and Company of Bhagalpur (exhibits 4-1 to 4-8) in August and September 1952. After Messrs Kiran Shankar and Company of Bhagalpur made an advance of Rs. 100/- a agreement creating an agency in their favour came into existence (exhibit 8). On 2-9-1952 respondent wrote a postcard to Messrs Kiran Shankar and Company stating that he had dispatched by railway parcel five gross “Satya Jiwan” after getting the same packed well”. He further informed the addressee that the railway receipt with the invoice had been sent per V.P.P This consignment was seized at Bhagalpur railway station by Sub-Inspector N.G Ghosh on 9-9-1952 (vide seizure list, exhibits 6 and 6-1). All this evidence establishes beyond doubt that it was the respondent who had booked the consignment which P.W 7 was unable to take delivery of owing to its being seized by the police at the instance of the complainant.

24. While describing the carton used by the respondent I have stated that he represented on that carton that his trade mark was a registered trade mark. The registration number was mentioned as 3147, The case of the complainant that the respondent falsely represented his alleged trade mark to be a registered trade mark appears to be correct. This is borne out by the letter of the Deputy Registrar of Trade Marks dated 13-11-1954 (Vide annexure to exhibit 15). It appears that the respondent had made an application for registration of his trade mark on 27-7-1950. He, however, did not pursue the matter and eventually his application was refused by the Deputy Registrar of Trade Marks on 13-11-1954. There is also evidence to show that the trade mark No. 3147 was registered under date 16-8-1942 in respect of coffee and the United Coffee Supply Co. Ltd., Coimbatore, South India, are the registered proprietors of the said trade mark (vide exhibit 16). It is, therefore, manifest the respondent has been using the registered number of another commercial concern.

25. On a review of the evidence, I hold that the respondent used a false trade mark in a manner reasonably calculated to cause it to be believed that the goods so marked are the manufacture of Messrs Pratab Mull Gobind Ram. The offence under S. 482 has, therefore been made out aga-inst him. He has also counterfeited the trade mark of Messrs Partab Mull Gobind Ram of 119 Khengrapatti Street, Calcutta, and thereby committed an offence under S. 483 of the Indian Penal Code. An offence under S. 486 of the Indian Penal Code has also been made out against the respondent because the goods were intended to be sold at Bhagalpur. Finally, I hold that the respondent is also guilty under Section 68 of the Trade Marks Act, 1950. Section 68(1) provides that no person shall make any representation with respect to a mark not being a registered trade mark, to the effect that it is a registered trade mark. I have shown above that the respondent had represented on his carton that his mark, was a registered trade mark although it was not so.

26. The learned Court below was of the view that the prosecution in this case is barred under Section 15 of the Indian Merchandise Marks Act, 1889. This section provides as follows:

“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”.

27. It is contended by the respondent that the offence of infringement having been discovered in 1949 or 1950, as was stated by the complainant in his evidence and the complaint having been filed on 8-9-1952 the prosecution must be deemed to be barred by limitation. Mr. Baldeva Sahay appearing for the appellant has, however, contended that the words “first discovery” mean when the complainant first discovered the offence and that he was to take action within one year from that time, he urged that it did not matter whether the original infringement took place two or five or ten years ago. There is no doubt that there is preponderance of authorities in favour of the view canvassed by Mr. Baldeva Sahay. In Akhoy Kumar Dey v. Emperor, AIR 1928 Cal 495, the matter was considered by Chotzner and Gregory, JJ. Their Lordships observed:

“The point is by no means free from difficulty; but we are on the whole satisfied that Mr. Basil's contention is correct. We think that the word ‘offence’ means ‘the offence charged’.”

28. This view was followed in a later Calcutta case, Nagendra Nath Saha v. Emperor, AIR 1930 Cal 274. The Full Bench case of the Bombay High Court in AIR 1937 Bom 1, followed the Calcutta view. It was held in that case that the words “commission of the offence” mean commission of the offence in respect of which a prosecution is launched that is to say, commission of the offence charged. This is what Beaumont, C.J observed in that case:

“One looks at the charge, which has to specify the date of the offence, and if one finds that date is more than three years before the commencement of the prosecution, then the prosecution is barred under S. 15, whether or not the complainant had knowledge of the offence. If the offence charged is less than three years, but more than one year, before the date of the prosecution, then the prosecution is barred if the complainant had knowledge of the commission of the offence charged for more than a year before the date of the prosecution”.

29. The earlier Bombay case in In re Abdul Satar Khan, ILR 59 Bom 551 : (AIR 1935 Bom 359), which took a different view, was held to be wrongly decided and was exmessly overruled. Similarly, two other cases, Ruppell v. Ponnusami Tevan, ILR 22 Mad 488 and Mahomed Jewa v. Wilson, 10 Ind Cas 787 (Burma), were also dissented from. In 12 Cri LJ 246 (Burma) the Lower Burma Chief Court took a different view holding that the intention of the Legislature would be frustrated if it was held that the owner of a trade mark could stand by for several years while his trade mark was being infringed continuously and then bring a criminal complaint in respect of some recent instance in which there had been an infringement.

30. In a later case, however, Mosely J. if the Rangoon High Court in Mohamed Cassim v. Shaik Thumby Sahib, AIR 1940 Rang. 114, in which he considered a large number of authorities including the one just referred to, held that the word ‘offence’ in Section 15 of the Indian Merchandise Marks I Act meant the offence in respect of which the prosecution was launched. In view of the decisions of the Calcutta, Bombay and the Rangoon High Courts, with which we respectfully agree the present complaint, which is in respect of offences committed between July, and September, 1952, must be held to be within time. So far as the charge under Section 68 of the Trade Marks Act is concerned, there is no question of limitation.

31. In the result, I set aside the acquittal of the respondent and convict him under Ss. 482, 483 and 486 of the Indian Penal Code and Section 68 of the Trade Marks Act. I sentence him to undergo rigorous imprisonment for three months under each section. The sentences will run concurrently.

32. Sahai, J.— I agree.

R.G.D

33. Order accordingly.