TMI Blog1972 (8) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the words 'trade mark' at several places in the complainant it was loosely used as can be seen from paras 14 and 15 of the complaint. The complainant's accusation was the use by the appellant of a property mark with the object of "palming off" to likely purchasers his scent of inferior quality as if it was the scent made by and belonging to the complainant and selling it or exposing it for sale as if it was the scent manufactured by and belonging to the complainant. Thus the High Court was right in setting aside the order of acquittal passed by the Additional Sessions Judge and in restoring the order of conviction and sentence by the Trial Magistrate. Appeal dismissed. - CRL.A. 181 OF 1969 - - - Dated:- 29-8-1972 - J.M. SHELAT, D.G. PALEKAR AND S.N. DWIVEDI, JJ. JUDGMENT This appeal, by special leave, is directed against the judgment and order of the High Court of Patna whereby the High Court set aside the order of acquittal passed by the Additional Sessions Judge and restored the order of conviction and sentence passed by the Trial Magistrate under ss. 482 and 486 of the Penal Code. One Sheojanam Prasad (who died during the pendency of his appeal before the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng spurious scent and defrauding the public as genuine, Basant Bahar with counterfeit imitation of Trade mark with the sole object of making illegal gain and damaging the business reputation of Basant Bahar in the hope of boosting up the sale of Pushp Raj by damaging Basant Bahar." Before the Trial Magistrate the defence taken up by the appellant was that the Basant Bahar scent was his original product, that he had put that scent first in the market, and that it. was Sheojanam Prasad who imitated the genuine scent evolved by him, and that therefore, there was no question of his having committed any offence either under s. 482 or s. 486 of the Penal Code. Both the parties examined witnesses. The Trial Magistrate, on such evidence, found (1) that it was the complainant who placed the scent under the name of Basant Bahar first in the market, (2) that that scent enjoyed a better market, (3) that finding that that scent had become popular, the appellant put out his own scent which was of inferior quality under the name of Basant Bahar, and thus passed off his scent as if it was the one manufactured and marketed by the complainant. On these findings, the Trial Magistrate convicted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d expressions, such as, "trade mark", counterfeiting his trade mark, etc. those expressions had been loosely used, and that in substance the complaint averred counterfeiting of property mark. Disagreeing with the construction placed by the Additional Sessions Judge on the complaint, the High Court allowed the appeal set aside the order of acquittal passed by him and restored the order of conviction and sentence passed by the Trial Magistrate, Counsel for the appellant challenged the correctness of the view taken by the High Court. Counsel for the appellant maintained that the view taken of the complaint by the Additional Sessions Judge was correct as against that taken by the High Court, that on a fair perusal of the complaint the case there set out was one of breach of and counterfeiting the trade mark "Basant Bahar" and that therefore, after the passing of the Trade and Merchandise Marks Act, 1958 such counterfeiting was no longer an offence punishable under the Penal Code. The contention further was that since the corn-' plainant's said trade mark was unregistered, he had not even a remedy by way of a civil suit under that Act. The High Court, so the argument ran, wrongly con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat fact did not mean that its property mark did not remain, for, the function of a property mark to denote ownership is not destroyed because any part of it on which it was impressed has ceased to be of that ownership [see also S. K. Pethilingam Pillai v. N. M. Rowther(A.I.R. 1969 Mad. 94). The question then is whether the complaint in substance, if not-in form, contained the necessary averments for bringing the case under the offence of using a false property mark by the appellant and selling goods with a counterfeiting property marks. To succeed on the charges under s. 482 and s. 486 the complainant had to establish that the appellant marked. the scent manufactured and sold by him, or the packets and receptacles containing such scent or used packets or receptacles bearing that mark, and that he did so in a manner reasonably calculated to cause it to be believed that the goods so marked or the scent contained in the packets and receptacles so marked belonged to the complainant. For the purpose of s. 436, he had further to establish that the appellant had sold, or exposed for sale, or had in his possession for sale goods having a mark calculated to cause it to be believed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on returned it finding it to be of inferior quality. On the evidence on record the Trial Magistrate found (1.) that Basant Bahar evolved and manufactured, by the complainant appeared in the market earlier than the scent manufactured and sold by the accused, (2) that the accused first called his scent Pushp Rai but finding that it did not sell well changed its name into Basant Bahar, (3) that his scent was of inferior quality (4) that the packets and receptacles in which the accused packed his scent were exactly similar in shape and inscrptions on them, except for the name of the manufacture, namely, Basant Bahar Chemical Co. Ltd., and (5) that he presumably did this with a view to make the likely purchasers believed that the scent be sold and placed in the market was the scent with the mark Basant Bahar made and sold by the complainant. These findings were accepted both by the Additional Sessions Judge and the High Court. In our view the name Basant Bahar with the picture of an angel with flower in her hands and the inscription of Basant Bahar Khushbuon Ka Badshah printed on the packets and receptacles was the property mark denoting that the scent in question was the one manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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