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TMI Blog1936 (9) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... harge a man with committing an offence de die in diem over a substantial period. 2. The accused was charged with offences under Sections 482, 485, and 486 of the Indian Penal Code in respect of offences which I will refer to by a compendious term as infringements of the complainant's trade mark. The defence which prevailed before the learned Magistrate who tried the case was that the accused had continuously infringed the complainant's trade mark since 1931, and the prosecution was therefore out of time under Section 15. With deference to the referring Court, I do not think that fact was properly proved before the Magistrate, but for the purposes of my judgment I will assume that it was so proved. The matter has been referred to us because there has been a difference of judicial opinion as to the construction of Section 15 of the Merchandise Marks Act, and there is one decision of this Court, Abdulsatarkhan v. Ratanlal I.L.R. (1935) Bom. 551 : 37 Bom. L.R. 580 the correctness of which requires to be considered. Section 15 of the Merchandise Marks Act is in these terms :- No such prosecution as is mentioned in the last foregoing section shall be commenced after the expirat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the section would have to be considerably altered, and in addition to a reference to ' the offence' which, as I have said, must mean the offence charged, there would have to be some such words as " or an offence similar to the offence charged which has continued uninterruptedly down to the date of the prosecution." It is a strong thing to alter the words of the section to that extent. Mr. Justice Twomey, in the Rangoon case, observes that in construing an Act of Parliament it is always open to the Court to consider what is the object of the legislature, and if it finds that that object can only be effected by giving some particular section, or expression, a meaning other than that which the words literally bear, the Court is justified in doing that amount of violence to the language in order to carry out the object of the legislature. That, no doubt, is a perfectly sound principle, but I think the learned Judge omitted to notice that the object of the legislature must be ascertained from within the four corners of the Act. It is not open to the Court to speculate as to what the legislature probably meant, and then do violence to the language of the enactment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y start with a makeup which has points of dissimilarity from the rival make-up, and, if they are not attacked, they gradually approach nearer to the make-up of their rival; and a Magistrate might well find himself compelled to try, first of all, whether the infringement alleged by the accused in (say) 1931 amounted to an infringement, and if not, whether, on rather different evidence, there was an infringement in 1932 or in 1933, and so on. The Court might have to try a succession, in effect, of passing off claims each one based on different evidence. Furthermore, 1 feel great difficulty in supposing that the legislature intended to confer upon a person a prescriptive right to commit an offence made criminal under the Indian Penal Code. It might very well happen that an infringer carried on his infringing business for more than three years in a place far removed from the place where the complainant carried on his business. The complainant might never hear of the infringement, or if he did hear of it, might think it not worth while to interfere. But it can hardly be suggested that after carrying on his infringing business for three years without doing the complainant any particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that case the words " first discovery " and the word " first" particularly would be superfluous, as also the words " whichever expiration first happens ", because, although theoretically it is possible that a person may charge another with an infringement in respect of an instance of infringement which occurred more than three years ago, from all practical points of view such a prosecution can never arise. On the other hand, to adopt the other construction, the section clearly would have to be recast and in place of the words " commission of the offence " words to the effect " commission of a similar offence " or " commission of the first infringement of the offence in respect of the particular trade-mark" will have to be inserted. These then are some of the difficulties which arise in construing this section. 6. The learned advocate for the accused has pressed upon us that in accepting, the first construction we shall be defeating the object of the legislature. Now, as I understand the law, the object of the legislature is to be gathered within the four corners of the- Act, and primarily upon the language of the statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of those particular cases where there had been continuous infringement to the knowledge of the complainant. There is ¦ a further difficulty involved in that view. It would not always be possible to say with certainty that when the false trade-mark or property mark was first used it was of the same kind as the one actually complained of. The fraudulent imitation of the genuine article may, and probably would in most cases, be in the beginning so slight as to escape detection or be difficult of proof. It would only be after lapse of time had given confidence and increased the temptation that the imitation would approach so close to the genuine article as to attract the notice of the complainant, or to cause such loss to him as would make it worth his while to prosecute. To say that in such cases he would be debarred from prosecuting if the accused could show that he had commenced committing the offence more than three years before the complaint was filed would result in depriving the complainant in most cases of the remedy which the Act provides. In my opinion the view taken in In re Abdulsatorkhan is not one borne out by the language of the section. I, therefore, agree ..... X X X X Extracts X X X X X X X X Extracts X X X X
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