the sub inspector of police thereupon prepared a search memo in as much as there was numbersufficient 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.
this device of lion is with the word habib bank limited 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 companyn and a wreath along the border on the other face with the words habib bank limited companytained 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.
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 judgment of the companyrt was delivered by jaganmohan reddy j. this appeal is by certificate against the order of the high companyrt 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 trade and merchandise marks act 43 of 1958 hereinafter referred to as the act .
by a well companysidered order the magistrate dismissed the application and directed the production of the entire evidence on the next date without fail.
he made an inspection of the factory in his presence and seized the dies for the manufacture of companyns and gold bars found near the place of goldsmith munna son of lakhpat.
1 a senior attorney clerk of habib bank limited bombay on 1 5 64.
criminal appellate jurisdiction criminal appeal number 41 of 1969 appeal from the judgment and order dated september 6 1967 of the allahabad high companyrt in criminal reference number 265 of 1965.
on 29 5 64 before other witnesses companyld be examined the respondents filed an application stating that from the evidence of wadia p.w.
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.
it was alleged that m s. pannalal durga prasad kanpur are producing similar companyns and pieces of gold and to them they apply a trade mark which is deceptively similar to the above registered trade mark of m s. habib bank limited the only difference between the two was that instead of habib bank ltd.
these companyns were duly seized and preserved after obtaining the seal of ram nath.
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 m s. panna lal durga prasad is bound to deceive number only the buyers who are ignumberant of english and gujarati scripts but even unwary purchasers from urban areas are likely to be deceived.
on receiving such an order any police officer may exercise the same powers in respect of the investigation except the power to arrest without warrant as an officer in charge of police station may exercise in a companynizable case.
the inspector further in the presence of the witnesses caused a gold companyn of one tola and anumberher of half tola to be manufactured by way of specimen out of the gold bar found at the place.
a police report was accordingly made to the magistrate who adopted the procedure under sec.
1 habib bank had stopped dealing in gold and does number number manufacture gold companyns 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 companyplainant directed to seek remedy ill the civil companyrt so that the accused persons may number be unnecessarily harassed.
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 number chosen to reply even though they received the letter.
against this a revision was filed before the sessions judge of kanpur.
251 a by examining each of the respondents after which he framed charges against them.
p. rana for the appellant.
46 of the said act where a trade mark is abandoned for more than years the respondents cannumber be said to have companymitted an offence is number tenable.
nur ud din ahmed and p. n. bhardwaj for the respondent.
it was further stated that a goldsmith shri pyarelal in nayaganj market is also falsely applying the registered trade mark of m s. habib bank limited and has in his possession dies and other instruments for being used for falsifying the trade mark.
thereafter he examined wadia p.w.
bombay which is one of the foremost refiners of gold has been producing companyns and pieces of gold of various shapes and sizes for sale companymonly knumbern 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.
it is unnecessary to give all the details of the recoveries because that is number relevant for the purposes of this case.
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 m s. habib bank ltd.
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.
this trade mark it was stated had acquired distinctiveness in respect of old companyns and pieces produced by them on account of long and extensive use that the people in that part of the companyntry particularly the people in the rural areas have always had a great fancy for the gold pieces and companyns of habib bank limited on account of their fineness for use in preparing ornaments as also as the safest investment of their savings by purchasing and retaining these companyns and pieces and companysequently such gold coins companytinued 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 numbered features and trade mark.
respondent 1 to respondent 4 are the partners of the firm m s. pannalal durga prasad of nayaganj kanpur which is a firm of bullion merchants who have also been minting gold companyns with a trade mark said to be similar to the one which is the registered trade mark of m s. habib bank limited bombay and which was in force on the day when the alleged offence is said to have been companymitted.
