P. Jaganmohan Reddy, J. - (1.) 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 offences under Sections 78 and 79 of the Trade and Mercandise Marks Act 43 of 1958 (hereinafter referred to as 'the ACt'). 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 coins with a trade mark said to be similar to the one which is the registered trade mark of M/s. Habib Bank Ltd., Bombay and which was in force on the day when the alleged offence is said to have been committed.
(2.) 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., 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 'Habib Ka Sona' and 'Sher Chap Pansa' 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 Sona' 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 a distinctiveness in respect of gold coins and pieces produced by 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 as in the bullion trade, and are distinguished on account of the above noted features and trade mark.
(3.) It was alleged that M/s. Panna Lal 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 M/s. 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 and D. It was averred that this trade mark adopted by M/s. 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 M/s. Habib Bank Ltd., and has in his possession dies and other imstruments for being used for falsifying the trade mark.;