PRANJIVANDAS SUNDERJI Vs. STATE OF BOMBAY

JUDGEMENT

(1.) The appellant has been convicted by the learned Chief Presidency Magistrate, Bombay, of an offence under Section 486 of the Indian Penal Code and has been sentenced to undergo simple imprisonment for three months and to pay a line of Rs. 1,000, in default simple imprisonment for three months.

(2.) Most of the facts in this case are not in dispute. It appears from the evidence that Messrs. Tootal Broadhurst Lee & Co. are the holders of a registered trade mark 'Tootal' and they have been manufacturing and selling with this trade mark among others woven undervests in the Indian market up to 1944. They seem to have stopped sending out these goods to India afterwards; out there was some evidence that in the year 1948 some English company in Bombay had imported a few undervests of Messrs. Tootal Broadhurst Lee & Co. It is not in dispute that the appellant in the present case purchased from one Fopatlal Ghelabhai & Co. respectable wholesale merchants of Bombay, undervests in boxes o six and these undervests were not manufactured by Tootal Broadhurst Lee & Co., and yet they bore either the trade mark 'Tootal' itself, or sometimes the mark 'Tootal'. The boxes in which the appellant purchased these undervests from Popatlal Ghelabhai & Co. bore the mark 'Tootel'. When Rallis, who are the agents in India of Messrs. Tootal Broadhurst Lee & Co., came to know that such undervests were being sold in the market, they sent one Billimoria to purchase from the appellant's shop undervests,. and he purchased 18 undervests in three boxes for a sum of Rs. 40-3-3, the approximate sale price of the undervests being Rs. 28 per dozen. A warrant was then Obtained, and on August 18, 1950, Sub-Inspector Mehta raided the shop of the appellant in the company of Billimoria and one D'Sa and secured 13 boxes of different sizes containing undervests which had got a label upon them 'Tootal' or 'Tootel'. The appellant and the other partners of the firm were then prosecuted for offences under Sections 483 and 486 of the Indian Penal Code. The appellant is a person who manages actually the business of the shop and was convicted of an offence under Section 486; but the other partners were acquitted, and we will not be concerned with them in the present appeal.

(3.) The principal defence of the appellant was that he had purchased the goods from a reputable firm like Popatlal Ghelabhai & Co., who are importers of ail kinds of hosiery; that he had sold these articles at only a small profit; that he paid Popatlal Ghelabhai & Co. cash for what he had purchased; that after the raid he straightaway disclosed his purchase from Messrs. Popatlal Ghelabhai & Co. and that in the circumstances his case falls either under Clauses (a) and (b) of Section 486, or if it does not fall under them, under Clause (c), Now, it does not appear in this case that there was, as a matter of fact, any demand in writing made upon the appellant by Tootal Broadhurst Lee & Co. to give all the information in his power with respect to the persons from whom he obtained the undervests; but the appellant from the first seems to have disclosed that he had obtained these goods from Messrs. Popatlal Ghelabliai & Co., and that he had obtained them from them has now been proved beyond a shadow of doubt. In our view, therefore, in case the appellant can show that he had taken all reasonable precautions against, committing an offence against the section, and that lie had at the time of the commission of the alleged offence no reason to suspect the genuineness of the mark upon the vests, his case will come within the exception referred to in Clauses (a) and (b). We are not prepared to accept, however, in the first, instance, the contention that the appellant in this case had no reason to suspect the genuineness of the mark at the time when he sold the goods to Mr. Billimoria and when he was found in possession thereof for the purpose of trade. It is not in dispute that the appellant has been for a number of years in the hosiery trade. The appellant, as a matter of fact, was for a number of years a servant in Messrs. Popatlal Ghelabhal & Co., from whom in this case he has purchased the undervests in question. He has left them now and has got an independent business of his own; but experience in service with a firm like Messrs. Popatlal Ghelabhai & Co. would naturally make the appellant conversant with the fact that there was a trade mark like 'Tootal' & goods of good duality were sold by someone under that trade mark. It is no doubt true that it appears from the evidence that even though ties and other things made by Messrs. Tootal Broadhurst Lee & Co., and bearing the trade mark 'Tootal' are being sold in India at the moment, since 1944 speaking generally, undervests manufactured by them and bearing trade mark 'Tootal' have not been imported in India. It further appears doubtful whether, as a matter of fact, Messrs. Tootal Broadhurst Lee & Co. have ever manufactured or sold under the trade mark 'Tootal' any knitted undervests at all. One of the witnesses who was examined in the case on behalf of the prosecution itself said that so far as his knowledge went Messrs, Tootal & Co. were selling cotton vests bearing the trade mark 'Tootal', but they were woven vests and not knitted vests. But that does not alter the fact that considering the status of the appellant who himself is a small wholesaler and had served in the shop of a big wholesaler, it would not be reasonable to expect that he would not know that goods of good quality were being sold by someone under the trade mark 'Tootal'. It is true that in this case the appellant has purchased from Messrs. Popatlal Ghelabhai & Co. the undervests found with him and sold by him. It does not appear that he paid for them anything but the market price; nor does It appear that he has made any very great profit. But these things are not very material for the purpose of the offence under the section. It is obvious that if this Court were to hold it innocent for anybody to sell under the trade mark 'Tootal' goods not manufactured by or sold by Tootal Broadhurst & Co,, provided only he sold them at a proper price and at a reasonable profit, huge profits could be made by persons who would be thus enabled to sell articles bearing a well-known trade mark. It would appear besides that when it is pointed out that the appellant has purchased the goods from a big importing firm, whose repute we have no reason to doubt, everything which could be said in favour of the appellant has been said. As I have already mentioned, the boxes in which the goods secured from the shop of the appellant were kept bore on the outside the mark 'Tootel'. Some of the goods inside also bore the same mark. Mr. Purshottam, who appears on behalf of the appellant, says that the appellant is a Gujarati trader; that he has signed his written statement in Gujarati, and that he may not even be knowing English. But in our view the prosecution had led evidence of the description of the mark upon the articles obviously with a view to making out that anyone who can read English would notice the attempt to imitate the correct trade mark. It seems to us clear that the goods did not bear the same trade mark always; sometimes they bore the trade mark 'Tootal'; sometimes they bore the mark 'Tootel'. The goods bear also other marks which were not genuine, for example, 'Made in English' and in case it was the case of the appellant, upon whom the burden was, once the prosecution had brought the case under the opening words of Section 486 that he did not know English, he had to state and to lead evidence to that effect. If he had done so, the prosecution might have been in a position perhaps to show that notwithstanding what the appellant stated, he knew English well enough in order to make out the difference between 'Tootal' and Tootel'. Besides, as I have already mentioned, there was a difference between what was upon the labels on the undervests to be found inside the boxes. Mr. Purshottam who appears on behalf of the appellant says that the appellant is a wholesaler and he may perhaps not have any reason to examine closely the inside of the boxes. That may be conceded. But there was a difference in a very large number of cases between what was to be found inside and what was to be found on the outside of the boxes, and It is difficult to understand that even a wholesaler would never have tried to look inside what was in the box. The customer would ordinarily want to Inspect what was inside the boxes and we do not understand that during the time when the appellant was selling the boxes he had never got any opportunity to discover for himself that even though the outside bore the mark 'Tootel', the inside was different. The point is that whenever anyone proposes to counterfeit a trade mark, he does not counterfeit the trade mark wholly. Some difference is kept, and whenever therefore a man in the position of the appellant found that when he wanted to purchase Tootal undervests he was given articles upon the boxes in which they were sold there was a description not 'Tootal' but 'Tootel' he would be put upon an inquiry as to whether the goods were really speaking vests which were manufactured by the owner of the trade mark "Tootal', much more so when the labels on the undervests were different. He would then be expected to make inquiries from Messrs. Popatlal Ghelabhai & Co., as to whether the goods were as a matter of fact, the goods of the owners of the trade mark Tootal' and, as a matter of fact, in our view he could make inquiries further also from whoever the owner of the trade mark would be, which it should not have been very difficult for the appellant to find in the present case. But the matter does not even rest there. The goods were purchased by the appellant at a price of something like Rs. 25 per dozen. There was evidence led as to what the price of Tootal undervests, which were woven, would be; but there was no evidence led as to what would be the price of any foreign knitted undervests. We would be surprised if even knitted foreign undervests could be purchased at the rate of Rs. 26 per dozen, considering the difference in prices between similar indigenous articles and imported ones. The burden in this case was upon the appellant to show, as I have already mentioned, that his case fell within Clauses (a) and (b) or clause (c) of Section 436 A in case it was the appellant's case that he had no reason to suspect that the goods were not of 'Tootel', the owners of the trade mark, we would have expected him to lead some evidence if Tootals were not manufacturing knitted undervests, what the price of foreign knitted undervests of the same quality would be. There has got a large import duty to be paid in such cases, and obviously therefore when the appellant failed to lead evidence, the inference must be that he had no hopes whatsoever of being able to show that even if there were manufactured by a company of the position of Messrs. Tootal Broadhurst Lee & Co., knitted undervests of the quality which have been sold by the appellant, their selling price in India would not be materially different from Rs. 26 per dozen. In these circumstances, we are not pre-pared to say that at the time when the appellant sold the articles, he had taken all reasonable precautions against committing an offence under Section 486 or that he had no reason to suspect the genuineness of the mark.