(1) Bahal Singh a cycle dealer of Ludhiana was charged and convicted under S. 420 read with Ss. 511, 485 and 486 of the I.P.C. by Magistrate 1st Class, Ludhiana. The learned Magistrate sentenced him to undergo rigorous imprisonment for six months on each count. The petitioner in addition was directed to pay a fine of Rs. 100/- on each count. For the non-payment of fine, he was to suffer one month's rigorous imprisonment for each default. The sentences of imprisonment under various offences were, however, made to run concurrently. On appeal Additional Sessions Judge maintained the convictions, but the sentences were reduced. Under Ss. 485 and 486 of the I.P.C., the petitioner was directed to pay a fine of Rs. 100/- only on each count.
Under S. 420/511, I.P.C., sentence of imprisonment was reduced to that of three months' rigorous imprisonment and a fine of Rs. 100/-. In default of payment of fine, he was to suffer rigorous imprisonment for one month on each of the counts. From the judgment and order of the learned Additional Sessions Judge dated 3-1-1959, Bahal Singh has come up to this Court on the revision side while challenging his convictions and sentences.
(2) The facts giving rise to the present petition briefly stated are that Shri Thakar Das Inspector C. I. A. received secret information about the petitioner's alleged culpable activities regarding the manufacture of spurious cycle parts and possession thereof for sale. It was learnt that spurious parts were counterfeit of 'Phillips' and 'Hercules' and were offered for sale by the petitioner. The Inspector therefore arranged a trap. P.W. Mit Singh was deputed to proceed to the business premises of the petitioner with a sum of Rs. 25/- marked currency notes as a bogus purchaser and make purchases of Phillips and Hercules cycle spare parts. Gurdial Singh Lambardar and another Gurdial Singh licensee were to accompany the bogus purchaser as shadow witnesses.
In accordance with the plan Mit Singh approached the petitioner and purchased two chain wheels spurious of 'Hercules' and 'Phillips' makes Exhibits P. 1 and P. 2 for Rs. 24/- only. Soon after Thakar Das Inspector C. I. A. reached the premises and on a search of the person of the petitioner recovered three currency notes that had been offered by the bogus purchaser. The chain wheels purchased by Mit Singh were also taken into possession. Then search of the business premises of the petitioner was carried out and 59 chain wheels, 42 chain wheels and 223 chain wheels in different lots were recovered from the premises. The petitioner was then interrogated and is alleged to have made a disclosure statement leading to the recovery from his factory room, seal Exhibit P. 3 and dies Exhibits P. 4 to P. 8.
(3) The prosecution case was that the petitioner was selling these spurious cycle spare parts as counterfeit of the genuine 'Phillips' and 'Hercules' and, therefore, had cheated Mit Singh of his Rs. 24/-, the cost of spare parts purchased. For this purpose the charge levelled against the petitioner was under S. 420 read with S. 511 of the I.P.C. For being in possession and offering for sale these spurious parts, the petitioner was prosecuted under S. 486, I.P.C., whereas for being in possession of the seal and dies he was proceeded against under S. 485 of the I.P.C.
(4) As regards offence under S. 420 read with S. 511 of the I.P.C., I have no manner of doubt that the conviction cannot be sustained. The evidence relating to this sale is that of a decoy witness and supported by the testimony of Lambardar Gurdial Singh who is again part and parcel of the trap arrangement. There ought to be some extraneous material wholly independent of the police mechanization to show that the sale in question was pushed by the petitioner of the spurious cycle parts representing them to be genuine of 'Hercules' or 'Phillips' makes. This material is lacking. I would, therefore, set aside the conviction and sentence under S. 420 read with S. 511 of the I.P.C. and acquit him of the said offences.
(5) Convictions under Ss. 485 and 486 of the I.P.C. must also be set aside but for another reason. These trade mark offences are principally offences against property and therefore in the nature of things are non-cognizable offences, the real complainant being the person directly affected by the infringement in question. If the sufferer, therefore, does not proceed to take action within time envisaged by the relevant provisions of a special Act embracing the field the penal provisions of I.P.C., cannot keep the remedy alive.
(6) The recovery of the spurious cycle parts from the premises of two show-room and of the dies from the factory at the instance of the petitioner is not seriously challenged and in fact could not be challenged with any effect, for the evidence on that aspect is unassailable. The contention raised on behalf of the petitioner was that the provisions of S. 14 read with S. 15 of the Indian Merchandise Marks Act, 1889, barred the prosecution in the instant case. the submission was that the offender had to be put in Court within three years of the commission of the offence or one year after the first discovery thereof by the prosecutor whichever expiration first happened.
It was urged that the contravention of the trade marks in the first instance took place some several years ago beyond the contemplated span of 3 years and that the agencies whose trade marks had been infringed had taken no action in that behalf whatever, therefore the petitioner could not now be prosecuted under the Indian Penal Code. To appreciated the point raised, it is necessary here to give the provisions of sections 14 and 15 of the Indian Merchandise Marks Act. Sections 14 and 15 of the Act are in the following terms:--
'14(1) On any such prosecution as is mentioned in the last foregoing section, or on any prosecution for an offence against any of the sections of the Indian Penal Code, as amended by this Act, which relate to trade, property and other marks, the Court may order costs to be paid to the defendant by the prosecutor or to the prosecutor by the defendant, having regard to the information given by and the conduct of the defendant and prosecutor respectively.
(2) Such costs shall, on application to the Court, be recoverable as if they were a fine.
15. 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'.
The material on the record clearly shows that the infringement in the first instance took place long before three years' time. The manufacturers whose trade marks had been infringed had taken no action for all these years the alleged counterfeit had been in the market. In the circumstances, the petitioner could not now be proceeded against under Ss. 485 and 486 of the I. P. C., for the prosecution would be completely barred keeping in view the provisions of S. 15 as above.
(7) Even otherwise I am not satisfied that the ingredients of S. 485 or for the matter of that section 486, I.P.C., had been made out. There is no proof apart from evidence of the decoy witness which is hardly satisfactory that the alleged spurious parts recovered were kept for offering for sale, or that dies recovered were employed for the purpose of counterfeiting the trade mark. The material on these aspects is wholly merger and wanting.
(8) For all these reasons this petition must succeed. I would allow the same and in the result set aside the convictions and sentences of the petitioner son all counts. Fine, if paid, must be refunded.
(9) Conviction and sentence set aside.