SHIV PRASAD RAM DAYAL Vs. SHYAMLAL BHAGIRATH

JUDGEMENT

(1.) THIS is an appeal by the complainant Shiv Prasad against the acquittal of the accused-respondents Shyamlal and Jeewanlal of offences Under Section 482 of the Indian Penal Code. The accused-respondents were convicted by the Magistrate Second Class, Sihora for having used false trade mark and sentenced to pay a fine of Rs. 500/each, or in default to undergo rigorous imprisonment for three months each. The complainant was awarded Rs. 400/-as compensation out o1 the fines realised. The Sessions Judge, Jabalpur on appeal set aside the aforesaid conviction and sentences.

(2.) THE facts necessary for the purpose of this appeal are as follows. The Firm of M/s. Udhavji Shrikishan Das are bidi manufacturer of Satna, Tahsil and District Satna, M. P. The complainant Shiv Prasad is the agent of the Firm who sells the firm's bidis in various parts of Uttar Pradesh including Gorakhpur district. The accused-respondents are the proprietors of 'majholi Jai Hind Bidi Factory' situate at Majholi, tahsil Sihora, District Jabalpur. They also sell the bidis manufactured by them in the district of Gorakhpur. Both the Firms wrap their assembly of 35 bidis each called a 'katta' into a wrapper of tissue paper which has their special design printed on it. The motif of the special design printed on the tissue paper consists of a part of the design of his trade mark which is a square of a light background with a circle of the darker shade in the centre. The colour scheme of the whole design is green of two shades. In the central circle is inscribed the figure '47' and and the four sides of the square is the writing 'udhavji', 'shrikishan Das', 'bidi Merchant' and 'satna' respectively in Deva-nagari script. Over this wrapper is pasted a label which is the trade mark of the Firm. It has also a distinctive design. On a dark-green background, there is a circle in the centre in red which has the figure '47' inscribed in it. Above this circle is a scroll which opens upwards. There is another scroll below the circle which opens downwards. The upper scroll has inscribed on it the name of the manufacturers printed in English in black on a red background; while lower scroll has the name of the manufacturers printed in black Devnagri script on a red background. On either side of the circle on four corners are four small circles, two on each side. In the circles on the right hand side is written 'no. 47' in Hindi and Devnagri script respectively; while in the circles on the left side is written 'bidi' in Hindi and Devnagri script respectively. This design has been in use of the complainant's firm continuously from the year 1947 and has thus come to be associated with the trade of the complainant's firm.

(3.) THE firm of the accused-respondents which we shall call 'majholi Firm' started manufacturing their bidis since March, 1957. Their katta ot bidis is also covered with a tissue paper bearing a design printed on it, the motif of which is also a square in a/lighter shade with a circle in the centre in a darker shade with the difference that id this case the circle in the centre contains the figure '57'. The Colour scheme is the same as that of the complainant's firm viz. , the two shade of green. The other design of this wrapper is also similar except that the writing contains the name of Majholi Firm instead of the names of the Satna Firm. This katta also contains a label of about the same size. The colour scheme and design of this label are also the same as those of the complainant's bidis except that the circle in the centre of the label is printed in red with the figure '57' inscribed in it. The background in which the main circle stands is green. Here again there are two scrolls at the; top and bottom of the centre circle respectively. The upper scroll opening upward and lower scroll opening downward. The writing on these scrolls is the name of the manufacturers viz. , Majholi Jai Hind Bidi Factory printed in English and Devnagri script respectively. The background on which the printing has been done in these scrolls is light yellow. On the two sides of the central circle are four smaller circles containing the figure '57' in English and Devnagri script on the right, and the figures 's. V. ' and on the left. .