iminal Appeal No 41 of 1969 Appeal from the judgment and order dated September 6 1967 of the Allahabad High Court in Criminal Reference No 265 of 1965
O P Rana for the appellant
Nur ud din Ahmed and P N Bhardwaj for the respondent
The Judgment of the Court was delivered by PJaganmohan Reddy J
This Appeal is by Certificate against the order of the High Court of Allahabad quashing the charge framed by the Additional City Magistrate Kanpur against the accused Respondent for offenses under Sections 78 and 79 of the 43 of 1958 hereinafter referred to as the Act 
Respondent 1 to Respondent 4 are the partners of the firm Ms Pannalal Durga Prasad of Nayaganj Kanpur which is a firm of bullion merchants who have also been minting gold coins with a trade mark said to be similar to the one which is the registered trade mark of Ms Habib Bank Ltd Bombay and which was in force on the day when the alleged offence is said to have been committed
On 24th October 1962 the Inspector of Trade Marks on behalf of the Director of Industries wrote a letter to the Additional City Magistrate I Kanpur that Ms Habib Bank Ltd Bombay which is one of the foremost refiners of gold has been producing coins and pieces of gold of various shapes and sizes for sale commonly known as under a distinct trade mark the most striking feature of which has always been a device of a lion holding a sword with his forearm against the back ground of a rising sun
This device of lion is with the word Habib Bank Ltd  above it and Shuddha Sonu  below it in Gujarati script with a dotted circle along the border on the face of the device of a coin and a wreath along the border on the other face with the words Habib Bank Ltd contained in the upper half and Pure Gold  in the lower half of the space within it in English script with the description of weight and quality
This trade mark it was stated had acquired distinctiveness in respect of old coins and pieces produced by 574 them on account of long and extensive use that the people in that part of the country particularly the people in the rural areas have always had a great fancy for the gold pieces and coins of Habib Bank Ltd on account of their fineness for use in preparing ornaments as also as the safest investment of their savings by purchasing and retaining these coins and pieces and consequently such gold coins continued to be highly popular among the people in the rural areas as well in the bullion trade and are distinguished on account of the above noted features and trade mark
It was alleged that Ms Pannalal Durga Prasad Kanpur are producing similar coins and pieces of gold and to them they apply a trade mark which is deceptively similar to the above registered trade mark of Ms Habib Bank Ltd the only difference between the two was that instead of Habib Bank Ltd in Gujarati script on one face and English script on the other face the words Habib quality  are used and the words pure gold  in English script is preceded by the letters P  D
It was averred that this trade mark adopted by Ms Panna Lal Durga Prasad is bound to deceive not only the buyers who are ignorant of English and Gujarati scripts but even unwary purchasers from urban areas are likely to be deceived
Though by a registered letter the Trade Mark office had drawn the attention of the firm regarding the use of the mark by them and had requested them to indicate the period for which they had been using it and whether the mark had been registered as a trade mark in their name they had not chosen to reply even though they received the letter
It was further stated that a goldsmith Shri Pyarelal in Nayaganj market is also falsely applying the registered trade mark of Ms Habib Bank Ltd and has in his possession dies and other instruments for being used for falsifying the trade mark
On these allegations the Magistrate was requested to take necessary action under the law against those mentioned in the letter in respect of offenses under Sections 78 and 79 of the Act by directing the Police to investigate the case
On receipt of this letter on the same day namely 24 10 1962 the Magistrate directed the Police to register a case and investigate
The Sub Inspector of Police thereupon prepared a search Memo in as much as there was no sufficient time to get the warrant of search issued and also because of the possibility of the removal of goods and effected a search of the premises
The Inspector went to the Silver and Gold factory of Panna Lal Durga Prasad and found that Ram Nath Son of Durga Prasad one of the Respondents was present there
He made an inspection of the factory in his presence and seized the dies for the manufacture of coins and gold 575 bars found near the place of goldsmith Munna son of Lakhpat
The Inspector further in the presence of the witnesses caused a gold coin of one tola and another of half tola to be manufactured by way of specimen out of the gold bar found at the place
These coins were duly seized and preserved after obtaining the seal of Ram Nath
It is unnecessary to give all the details of the recoveries because that is not relevant for the purposes of this case
A police report was accordingly made to the Magistrate who adopted the procedure under Sec
251 A by examining each of the Respondents after which he framed charges against them
Thereafter he examined Wadia PW 1 a Senior Attorney Clerk of Habib Bank Ltd Bombay on 1 5 64
On 29 5 64 before other witnesses could be examined the Respondents filed an application stating that from the evidence of Wadia PW 1 Habib Bank had stopped dealing in gold and does not now manufacture gold coins that it had also destroyed the dies And since 1954 this trade mark of Habib Bank has become ineffective and is thrown open to the public as such it was prayed that the case be stayed and the complainant directed to seek remedy ill the civil court so that the accused persons may not be unnecessarily harassed
The Magistrate rejected this contention because it appeared from the evidence that the registration of the trade mark of Habib Bank was current upto 1967 and that since the Respondents have been charged under Sections 78 and 79 of  the Act the contention of the accused that in view of Sec
46 of the said Act where a trade mark is abandoned for more than years the Respondents cannot be said to have committed an offence is not tenable
By a well considered order the Magistrate dismissed the application and directed the production of the entire evidence on the next date without fail
Against this a revision was filed before the Sessions Judge of Kanpur
The Sessions Judge made a reference to the High Court recommending the quashing of the charge on the ground that The principle of abandonment is given legal recognition in Sec
46 Trade  Merchandise Marks Act which provides that a registered trade mark may be taken off the register if it was not used for continuous period of five years or longer
 The High Court held that on the statement of Wadia it is clearly established that Habib Bank Ltd had stopped dealing in gold and coins since 1954 and there could therefore be no question of the Respondents corn mitting any offence under Sections 78 and 79 of the Act
On this reference the High Court by its Judgment dated 6 9 67 thought that Sec
46 had no application inasmuch as that Section provided that unless the registration had been rectified the propriety rights of the Bank could not be said to have ended only because the trade mark had not been used for a period of more than 5 years
It observed that there may be cases where the non 576 user of the trade mark may have been occasioned on account of special reasons and such non user was explainable that clause iii of Sec
47 makes it clear that it is open to the owner to contest the application for rectification of the register by the plea that the non user of the trade mark was due to special circumstances in the trade and not due to any intention on his part to abandon or not to use the trade mark in relation to the goods to which the application relates
Accordingly the learned Judge expressed the view that the proceedings are not vitiated on the ground that the trade mark in question has ceased to be the property of Ms Habib Bank Ltd It appears that a contention was urged before the High Court that since Habib Bank Ltd was declared to be a foreign Bank in the year 1960 by the Reserve Bank of India as it had become a citizen of Pakistan it was not a citizen under the Constitution of India and therefore had no proprietory rights in this Country
The High Court said that this submission of the Respondent s Advocate had some force as the question raised was a substantial question of law involving the interpretation of the Articles of the Constitution that could properly be decided in a civil action rather than by a Magistrate in a Criminal case
For this proposition reliance was placed on a decision of that Court in Karan Singh vs Mohan Lal1 which following a Full Bench decision of the Calcutta High Court in Ashutosh Das vs Keshav Chandra Ghosh2 held that a controversy between the parties relating to a complicated question of abandonment of the user and relating to the express or implied consent of the registered holder of the trade mark are questions which should be decided in a civil court rather than by a Criminal Court
It was also held by the High Court that Since the complaint in the particular case had not been made by a Proprietor of the trade mark the prosecution of the accused on the complaint of the Trade Marks Inspector and a subsequent investigation by the Police were not tenable under Sections 78 and 79 of the Act in view of the provisions of Sec 28 of that Act
An objection seems to have been taken before the learned Judge that the High Court was not competent to quash the proceedings pending before the Trial Magistrate in that case because no revision petition had been filed against the order of the Magistrate by which the charge was framed against him but it was only after one of the witnesses had been examined that a Revision had been filed which is not competent
The High Court rejected this contention and held that it had power to exercise revisional powers under Sec
561 A and accordingly accepted the reference made by the Sessions Judge and quashed the proceedings against the accused for offences under Sections 78  79 of the Act
1 2 ATR 577 It appears to us that the High Court had misdirected itself in considering that the submissions which found favour with it were relevant for the purpose of deciding whether the proceedings for prosecution for offences under Sections 78 and 79 of the Act were not valid either because the Habib Bank Ltd being a foreign Bank was not a citizen and as such had no rights or that the prosecution cannot be initiated by the Inspector of Trade Marks or that the question of the abandonment of trade mark amounted to an express or implied consent was a matter for civil court and cannot be made the subject of a criminal prosecution
Sections 78 and 79 are contained in Chapter X of the Act
Section 78 provides that any person who falsifies any trade mark falsely applies to goods any trade mark or makes disposes of or has in his possession any die block machine plate or other instrument for the purpose of falsifying or of being used for falsifying a trade mark applies any false trade description to goods etc
shall unless he proves that he acted without intent to defraud be punishable with imprisonment for a term which may extend to two years or with fine or with both while Section 79 makes a person liable to similar punishment if he sells goods or exposes them falsely or for having them in his possession for sale or for any purpose of trade or manufacture any goods or things to which any false trade description is applied
Trade mark has been defined in Sec 2 1 v to mean i in relation to Chapter X other than Section 81 a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark and ii in relation to the other provisions of this Acta mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark whether with or without any indication of the identity of that person and includes a certification trade mark registered as such under the provisions of Chapter VIII
 It is apparent from this definition that for the purposes of Chapter X of the Act which deals with criminal offenses a trade mark includes a registered as well as unregistered trade mark
An offence under Sections 78 or 79 therefore relate to a trade mark whether it is registered or unregistered
The contention that the 578 registered trade mark of the Habib Bank Ltd has been abandoned since the said Bank had discontinued its use from 1954 will not absolve the respondents from Criminal liability because even if it was abandoned it can only furnish a ground for a person to make an application under sec
46 to have the trade mark removed from the registers
It does not however entitle him to use a trade mark whether it is current or has been removed from the register or has been abandoned or even if it has never been initially regis tered but has acquired the currency of a trade mark
The offenses under Sections 78 and 79 consists in the deception and application of a trade mark which is in use and which signifies a particular type of goods containing that mark
There is therefore no validity in the contention that the infringement of the trade mark of Habib Bank Ltd merely gives rise to a civil action in respect of which no prosecution will lie
The provisions contained in Chapter IV in which is contained Sec
28 relate to the effect of registration and have no bearing on the question before us
It was neatly urged that the Trade Marks Inspector had no right to make a complaint under Sections 78 and 79 and therefore the prosecution was invalid
This contention also in our view is misconceived
A perusal of sub section
2 of Sec 89 would show that no Court inferior to that of a Sessions Judge Presidency Magistrate or Magistrate of the 1st Class shall try an offence under this Act while sub section
1 provides that no Court shall take cognizance of an offence under Sec
or Sec 83 except on complaint in writing made by the Registrar or any officer authorised by him in writing
Merely because sub section
1 of Sec 89 refers to manner of taking cognizance in respect of offence under the Section specified therein it does not preclude cognizance of other offenses specified in Chapter X from being taken under the procedure prescribed by the Criminal Procedure Code
It is apparent that offenses under Sections 78 and 79 are punishable with imprisonment of two years or with three years if they fall under the respective provisos to the said Sections
In cases where an offence is punishable with imprisonment of one year and upwards but less than 3 years under Chapter XXIII of Schedule 11 it is non cognizable and is a summons case triable as already stated under Sec
892 by the Sessions Judge Presidency Magistrate or a Magistrate of the 1st Class
In such cases under Sec 155 of the Criminal Procedure Code when an information is given to an officer incharge of the Police Station of the commission of a non cognizable offence he has to enter the substance of the information in a book to be kept for the purpose and refer the informant to the Magistrate but he cannot under sub section
2 investigate such a case without the order of a Magistrate
On receiving such an order any Police officer may exercise the same powers in respect of the investigation except the power to arrest 579 without warrant as an Officer in charge of police station may exercise in a cognizable case
On receipt of a report from the Police in compliance with such orders the Magistrate may it the report discloses the commission of an offence try the accused by the procedure prescribed under Sec
251 A of the Criminal Procedure Code
This being the legal position in this case the Magistrate in our view has followed the correct procedure
The information in respect of the commission of an offence under Sections 78 and 79 of the Act was brought to the notice of the Magistrate by a letter from the Trade Marks Inspector The Magistrate directed the police to register a case and investigate it
The Police accordingly complied with it and made a report thereon
On receipt of the report the Magistrate satisfied himself that the respondents had received the documents referred to in Sec 173
After a consideration of those documents he examined the accused and after giving an opportunity to both the prosecution and the accused framed a charge on being satisfied that there was a prima facie case
The procedure followed therefore is unexceptionable
The question whether the Habib Bank Ltd being a foreign Bank is not a citizen and whether it has any right in the trade mark is therefore irrelevant and does not affect the validity of the proceedings or of the charges framed against the accused
We accordingly allow the appeal set aside the Judgment of the High Court and direct the Magistrate to proceed with the case in accordance with law
VPS Appeal allowed


Summary:
The Inspector of trade marks wrote a letter to the Magistrate and requested him to take necessary action under law against the respondents on the allegations that the respondents were producing coins and pieces of gold and were applying to them a trade mark which was deceptively similar to the registered trade mark of a bank and which was in force when the respondents produced the coins
The Magistrate directed the police to register a case under the  and investigate it
On receipt of the police report the Magistrate followed the procedure prescribed by section 251A of the Criminal Procedure Code and framed charges under sections 78 and 79 of the Act on being satisfied that there was a prima facie case
After one of the prosecution witnesses was examined the respondents raised the question that the evidence disclosed that the bank had discontinued the use of the trade mark and a question of abandonment which could be more suitably dealt with by the civil court had arisen
The High Court on reference by the Sessions Court held that  1 the prosecution could not be initiated by the Inspector of Trade Marks in view of section 28 of the Act 2 whether the question of the abandonment of the trade mark amounted to an express or implied consent for use by the respondent was a matter for the civil court and not for a criminal prosecution and 3 the prosecution for offenses under sections 78 and 79 was not valid because the Bank was declared to be a foreign bank by the Reserve Bank of India in 1960 and hence had no rights as a citizen of India
Allowing the appeal to this Court HELD  1 Merely because section 891 of the refers to the manner of taking cognizance in respect of certain offenses specified therein it does not preclude the cognizance of other offenses specified in Chapter X of the from being taken under the procedure prescribed by the Criminal Procedure Code
The offenses with which the respondents were charged are punishable with imprisonment of two years and hence being non cognizable the procedure followed in the present case by the Magistrate is unexceptionable
Section 28 of the Act which is in Chapter IV relating to the effect of registration has no hearing on the question 578 C H 579 A D 2 An offence under sections 78 and 79 relates to a trade mark whether it is registered or unregistered
The application of a trade mark signifies a particular type of goods and involves deception
Therefore the fact that the Bank discontinued the use of the trade mark would not absolve the respondents from criminal liability
Even if the trade mark was abandoned by the Bank it could only furnish a ground for a person to make 573 an application under section 46 of the to have the trade mark removed from the register of trade marks but it does not entitle anyone to use the trade mark
577 A 578 A C 3 The question whether the Bank being a foreign bank is not a citizen and had no Tight in the trade mark is therefore irrelevant and does not affect the validity of the proceedings against the accused
577 A B