G.C.Mathur, J. - (1.) The two respondents Sita Ram and Qazi Mohammad Ibrahim Siddiqi were prosecuted under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958. They were convicted by the trial court and sentenced to a fine of Rs. 100/- on each count. It was further ordered that, in default of payment of fine, they would undergo simple imprisonment for two months. On appeal, the Temp. Sessions Judge, Orai, set aside the conviction and sentence of Sita Ram under Section 78 but maintained his conviction and sentence under Section 79 of the Act. The appeal of Qazi Mohammad Ibrahim Siddiqi was dismissed in toto. Thereupon the respondents filed a revision in this Court. By order dated September 27, 1963, a learned Judge of this Court allowed the revision, set aside the order of the appellate court and directed rehearing of the appeal. He further directed the appellate court to decide the question whether the prosecution was time barred. The appeal was re-heard and the Civil and Sessions Judge, Orai, held that the prosecution was time-barred and has acquitted both the respondents. It is against this order of acquittal that the complainant has filed this appeal.
(2.) The only question, which arises for consideration in this appeal, is whether the prosecution was time-barred or not. The facts necessary for the determination of this question may now be stated. The complainant Bhagwant Lal Juneja is the proprietor of a Soap Trade Mark No. Rs.5'. It came to his knowledge that the respondents were infringing his trade mark and in August, 1958, he served a notice on the respondents, asking them to refrain from infringing his trade mark. According to the complainant, the respondents stopped infringing his trade mark but some time afterwards he again found that they were infringing his trade mark. Thereupon he again gave a notice dated Sep. 24, 1959, to the respondents. As the respondents paid no heed to this notice, he filed a complaint in the court of the Sub-Divisional Magistrate against the respondents and two others on Sept. 29, 1960. The question is whether this complaint is time-barred under Section 92 of the Act. The relevant portion of this section reads thus: "No prosecution for an offence under this Act .... shall be commenced after the expiration of 3 years next after the commission of the offence charged, or 2 years after the discovery thereof by the prosecutor, whichever expiration first happens." The appellate court has held that, since the complaint was filed more than two years after the first notice was given in August, 1958, it was time-barred. He has taken the view that the prosecution was in respect of the offence which was discovered in August, 1958. His conclusion is based on the ground that the present complaint relates to the manufacture of exactly the very type of soap to which the notice of August, 1958, related. He has observed that in the present case the very infringement, upon which the complaint is based, was alleged in August, 1958, and the very imitation is being carried out again from August, 1958, onwards, if not earlier, and the same has not been discontinued. We are unable to agree with the view taken by the Civil and Sessions Judge. The complaint clearly states that after the notice of August, 1958, the respondents stopped infringing his trade mark but the complainant subsequently again discovered that they were infringing his trade mark and thereupon he gave the notice dated Sept. 24, 1959. It is thus clear that the complaint was in respect of a subsequent and distinct infringement of the trade mark committed shortly before Sept. 24, 1959, and not in respect of the infringement which was committed before August, 1958. The charge, which was framed against the respondents, starts with these words:-] "That you, on or about the year" 1959, started the manufacture of soap..........." In questions Nos. 10 and 11 put to the respondents in their examination under Section 342 Cr.P.C, they were asked whether in August, 1959, they were manufacturing soap under the trade mark of the complainant. It is therefore absolutely clear that the complaint was in respect of an offence committed subsequent to the giving of the notice in August, 1958. The complaint was certainly not in respect of the offence alleged to have been committed before August. 1958. The complaint was filed well within two years of the date of knowledge of the commission of the offence charged in the complaint.
(3.) It was urged on behalf of the respondents that, when once there was infringement of the trade mark and the infringement came to the notice of the complainant and he failed to file his complaint within the period of limitation prescribed, no complaint can be filed for any infringement thereafter. We are unable to accept this proposition. Section 92 of the Act bars the prosecution for an offence if the complaint for that offence is not filed within three-years of the commission of the offence or two years of the discovery thereof. It does not bar prosecution for any subsequent offence if no prosecution has been launched in respect of the earlier offence. Each infringement of the trade mark amounts to a separate and distinct offence and separate prosecutions will lie therefor. If the complainant fails to prosecute the person infringing his trade mark for one infringement, he is not debarred from prosecuting him for another subsequent infringement. To hold otherwise would be conferring upon the person, who infringes the trade mark, a prescriptive right to commit an offence once the complainant fails to prosecute him within the period of limitation. In State of U. P. v. Ram Kishore, 1964 ALJ 190 a Division Bench of this Court has taken similar view. In this case, the infringement was first discovered in 1955 and the complainant sent a notice to the person infringing the trade mark but he did not file any complaint at that time. Another infringement was noticed in 1960 and a prosecution was launched, was held by the Division Bench that the prosecution was not barred by Section 92 of the Act on account of the failure of the complainant to prosecute within two years of the discovery of the first infringement in 1955. We are fully satisfied that the prosecution of the respondent was not barred by Section 92 of the Act. Before the appellate court the respondents did not challenge the fact of the infringing of the trade mark by them and accepted the findings of the trial court on that point. Learned counsel for the respondents has not urged anything before us to throw any doubt on the findings of the trial court.;