Case Analysis: RAM KISHORE Vs. STATE OF U.P.
Case Details
Case name: RAM KISHORE Vs. STATE OF U.P.
Court: Supreme Court of India
Judges: Shah, J.
Date of decision: 28 March 1966
Citation / citations: I.L.R. 22 Mad. 488; I.L.R. 59 Bom. 551; A.I.R. 1959 S.C. 433; I.L.R. (1937) Bom. 183; A.T.R. 1959 S.C. 433
Case number / petition number: Criminal Appeal No. 37 of 1964; Government Appeal No. 782 of 1962
Proceeding type: Criminal Appeal
Source court or forum: Allahabad High Court
Source Judgment: Read judgment
Factual and Procedural Background
The appellant, Ram Kishore, carried on a chewing‑tobacco business in Varanasi and marketed his product under the trade‑mark “Titli”. The complainants, M/s Nandoo Ram Khedan Lal, owned the registered “Titli” trade‑mark and used a label showing three butterflies on a yellow‑green background with the legend “Titli”. The appellant’s label displayed four butterflies on a leaf‑green background with the same legend, a colour scheme that was substantially similar to that of the complainants.
On 25 November 1960 the appellant was alleged to have been in possession of counterfeit labels that could be used to pass off his tobacco tins as those of the complainants. The police filed a charge‑sheet on 22 March 1961, alleging offences under sections 78 read with 77 and section 79 of the Trade and Merchandise Marks Act, 1958. The First‑Class Magistrate convicted the appellant and sentenced him to three months’ simple imprisonment, directing the sentences to run consecutively.
The appellant appealed to the Sessions Court, which set aside the conviction and acquitted him on the ground that the prosecution was barred by section 92 of the Act because it had not been instituted within the prescribed period. The State appealed, and the Allahabad High Court reversed the acquittal, restored the conviction and reduced each sentence to a fine of Rs 1,000. A certificate under Article 134 of the Constitution was issued, and the appellant filed Criminal Appeal No. 37 of 1964 before the Supreme Court.
During the proceedings the appellant submitted that the complainants had written to him on 6 January 1955, claiming exclusive ownership of the “Titli” trade‑mark and demanding that he desist. He denied that the complainants were the sole proprietors and asserted that he had used the mark for many years prior to that letter. No further protest was made by the complainants until November 1960.
Issues, Contentions and Controversy
The Court was called upon to determine (i) whether the prosecution for the offences under the Trade and Merchandise Marks Act, 1958 was barred by the limitation provision of section 92, specifically whether the limitation period began to run from the first discovery of any infringement in 1955 or from the date of discovery of the offence charged in 1960; and (ii) whether the complainants’ 1955 letter and subsequent inaction amounted to an assent or acquiescence that would defeat the element of falsification under section 77.
The appellant contended that section 92 should be interpreted in line with the earlier provision of the Merchandise Marks Act, 1889, allowing the limitation to commence from the first discovery of infringement, and that the complainants’ protest constituted implied assent to his continued use of the mark. The State and the complainants argued that section 92 expressly required the limitation to start from the date of commission of the specific offence or from the date of its discovery by the prosecutor, and that a protest or demand to desist could not be equated with assent.
Statutory Framework and Legal Principles
Section 77, 78 and 79 of the Trade and Merchandise Marks Act, 1958 defined the offences of falsifying a trade‑mark, possessing counterfeit labels and using a deceptively similar mark. Section 92 prescribed that no prosecution could be commenced after the expiration of three years next after the commission of the offence charged, or two years after the discovery thereof by the prosecutor, whichever expired first. For comparative purposes, Section 15 of the Merchandise Marks Act, 1889 was cited, which allowed a limitation from the commission of the offence or from the first discovery by the prosecutor. The Court applied a “plain‑meaning” test to the language of section 92, refusing to import the expression “first discovery” that was not contained in the enactment.
Regarding assent, the Court recognised that section 77 required the use of a trade‑mark to be without the proprietor’s assent; assent had to be explicit and could not be inferred from a mere protest or notice of infringement.
Court’s Reasoning and Application of Law
The Court examined the wording of section 92 and held that the Legislature had deliberately used the expressions “the commission of the offence charged” and “the discovery thereof by the prosecutor”. Consequently, the limitation period began to run from the date of the specific offence alleged—namely the possession of counterfeit labels on 25 November 1960—or from the date on which the prosecutor discovered that offence, as evidenced by the filing of the charge‑sheet on 22 March 1961, whichever period expired first. Both dates fell within the three‑year period prescribed by the statute; therefore, the prosecution was not barred.
The Court rejected the appellant’s reliance on the earlier 1889 provision and on the Madras High Court decision in Ruppell v. Ponnusami Jevan, observing that the 1958 Act had expressly departed from the language of the predecessor law.
On the question of assent, the Court noted that the complainants’ 6 January 1955 letter demanded that the appellant desist from using the “Titli” mark and therefore constituted a protest, not an approval. No evidence showed that the complainants had withdrawn their objection or granted a licence. Accordingly, the appellant’s use of a deceptively similar mark was without the proprietor’s assent, satisfying the element of falsification under section 77.
The Court affirmed the findings of the trial magistrate and the High Court that the labels were substantially similar and likely to deceive illiterate consumers, thereby supporting the conviction under sections 78 read with 77 and 79.
Final Relief and Conclusion
The Supreme Court dismissed the appellant’s appeal, refused the relief sought, and upheld the conviction under sections 77, 78 and 79 of the Trade and Merchandise Marks Act, 1958. The fine of Rs 1,000 imposed on each charge by the Allahabad High Court remained in effect. The Court thereby affirmed that the limitation provision of section 92 had not barred the prosecution and that no assent by the complainants existed to negate liability for falsification of a trade‑mark.