A N DEEN Vs. JACOB

JUDGEMENT

(1.) THE appellant in Criminal Appeal No. 470 of 1979 (hereinafter referred to as the Complainant) is the Sales Manager of the Pioneer Match Works, Sivakasi, which is a unit of M/s. Asia Match Company Private Ltd. , Sivakasi. M/s. Asia Match Company Pvt. Ltd. , is engaged in the manufacture and sale of safety matches under the Trade Mark "chavi". The trade mark has been duly registered under the Trade and Merchandise Marks Act, 1958, Accused 1 and 2 are brothers. Their elder brother K. O. Davis is a licensee of two match factories viz. , St. Mary's Match Works at Kattoor and Fathima Match Works at Kizhuthany, within the jurisdiction of the Chief Judicial Magistrate, Trichur. The licensee Davis is away in the Middle Eastt According to the complaint, the factories are being manned by the accused and they are controlling the industry. The income therefrom is appropriated by the accused. The accused used to affix labels on the match boxes one of the labels being a photograph of "jocker" with the writing "jocker" and another with the writing "major". The quality of matches manufactured by the accused being poor they could not compete with the "chavi" brand matches manufactured by the Pioneer Match Works of the complainant. The complainant subsequently came to know that the accused had falsified the trade mark "chavi'' of the complainant and were using labels for their match boxes which were deceptively similar to that of the complainant. The complainant made enquiries and found that the accused after falsifying the trade mark of the complainant sold their matches and also exposed them for sale. The Swastik mark, the word "superior quality" and the photograph of the Chavi shown in the label of the accused are similar in colour combination as that of the complainant's label, the only difference being that instead of "chavi" the word "thakkol" is used. The word "thakkol" and the word "chavi" indicate the same thing viz. , a key. The purpose of imitating the label of the complainant by the accused is to deceive the public and to market their low quality matches and make an unlawful gain to the prejudice of the complainant. The complainant's firm was having an exclusive market in the Perumbavoor area, within the jurisdiction of the Judicial Magistrate, First Class, perumbavoor. The accused dumped their matches into this area under the false trade mark and sold them at a low price. The deception practised by the accused resulted in loss to the complainant. The action of the accused fell Under Section 77 of the Trade and Merchandise Marks Act 1958 (for short the Act) and is punishable Under Sections 78 and 79 thereof. A complaint was accordingly filed against the accused before the Chief Judicial Magistrate, Trichur.

(2.) THE accused pleaded not guilty to the charges. The prosecution examined PWs. 1 to 5 and marked M. Os. 1 to 12. During the course of the examination PW-1 admitted that he has seen no document to show that the accused were either owners or occupiers of the Fathima and St. Mary's Match Works. The only evidence connecting the accused with the concern is that the first accused was present at the St. Mary's Match Works when a search was conducted by the police and he signed the search list as a representative of the occupier. The trial Court held that that by itself was not sufficient to show that the accused were in charge of the business in the factory. The court therefore concluded that the prosecution failed to prove that the accused falsified the trade mark of the complainant's company or that they falsely applied the trade mark of the complainant to the match boxes. The accused were therefore acquitted of the offence under Section 78 of the Act, 1958. As regards the offence punishable under Section 79 of the Act, the trial Court held that since the Rale alleged was at Perumbavoor, outside the jurisdiction of the Chief Judicial Magistrate, Trichur, that court had no territorial jurisdiction to try the case. On the above basis, the "futher trial" of the accused for the offence under Section 79 of the Act was stopped and the accused were discharged. Criminal Appeal No. 470 of 1979 is filed by the complainant against the acquittal of the accused of the offence Under Section 78 of the Act. Crl. R. P. No. 499 of 1979 is filed by the same person against the discharge of the accused in respect of the offence punishable Under Section 79 of the Act.

(3.) THE complaint proceeded on the tooting that the accused manufactured the matches in the two factories referred to and sold them in the Perumbavoor area. The trial proceeded before the Chief Judicial Magistrate, Trichur, on the basis that the manufacture and sale were parts of the same transaction and therefore Under Section 220 of the Criminal p. C (for short the Code) the Court had jurisdiction to try both offences. This is not disputed by the accused.