NARAYAN CHANDRA GHOSH Vs. STATE

JUDGEMENT

(1.) This appeal is against an order dated December 9, 1965, passed by Sri A. N. Sinha, Presidency Magistrate, Sixth Court, Calcutta, convicting the accused-appellant Nos.1 to 5 under Section 78 read with Section 88 of the Trade and Merchandise Marks Act, 1958 (XLIII of 1958), and sentencing each of them to pay a fine of Rs.500, in default to undergo S. I. for two months each; and convicting the accused-appellant Nos. 6 to 9 under Section 78 read with Sections 79 and 88 of Act XLIII of 1958 and sentencing each of them to pay a fine of Rs.100, in default to undergo S.I. for 15 days each; while acquitting all the accused-appellants under Section 78 of Act XLIII of 1958 read with Section 34, Indian Penal Code, and the co-accused No. 6, Samir Kumar Acharya, on all the counts of the charges in case No. C/1054 of 1964.

(2.) The facts leading on to the appeal are short and simple. The accused-appellant Nos. 1 to 5, who are brothers, are the partners; the co-accused No. 6, who has since been acquitted, is the employee of M/s. Narayan Chandra Ghosh and Brothers; and the accused-appellant Nos. 7 to 9 are the partners of a printing pres named and styled as M/s. A. P. Mukherjee & Sons. The complainant is the manager of M/s. Mrinalini Bidi Company (P) Ltd. authorized to institute the present proceedings on behalf of the company. The prosecution case, inter alia, is that the said company, which is the successor of Nibaran Chandra Das & Brothers, started business at Aurangabad manufacturing and selling various kinds of biais of different qualities. In 1942, the partners of the First Information Report, referred to above, formed the present company manufacturing amongst to others the 'Jugantar Bidi' which is on sale in the market for about 30 years and acquired wide reputation and popularity. The brand has distinctive features in packing, wrapping, labeling, clipping and in the lettering scheme of the labels; and the trade mark of the brand, with those distinctive features, was duly registered in 1940 under the Trade Marks Act, 1940, bearing trade mark No.14773 dated April 20, 1943, in class 34. The complainant company came to learn in 1963 that bidis with deceptively similar labels and packings were being sold in the market bearing the brand 'Jugavatar Bidi'; that such bidis were being pushed by unscrupulous dealers on illiterate and unwary purchases; that the Madhusudan Bidi Factory, owned by Narayan Chandra Ghosh and Brothers of Aurangabad, Murshidabad, has been manufacturing the said 'Jugavatar Bidi' and selling the same by deceptively imitating the distinctive trade mark of the 'Jugantar Bidi'; and that the aforesaid firm had the imitative labels printed from a press named and styled as A. P. Mukherjee & Sons, Calcutta. On September 9, 1963, the complainant company instituted proceedings under the Trade and Merchandise Marks Act, 1958 through its supervisor Sri Amal Kumar Singh, before the learned Additional Chief Presidency Magistrate, Calcutta, being Case No. C/1018 of 1963, and the accused were summoned under Section 78 of the Trade and Merchandise Marks Act, 1958.

(3.) The said employee having since resigned from his service under the complainant company, a prayer was made on behalf of the complainant for continuing the proceedings through another employee Sri A. K. Roy, Presidency Magistrate, Eleventh Court, Calcutta, to whom the case was transferred, by his Order dated December 21, 1964 observed that the offence being not cognizable and not compoundable there was no provision in the Code of Criminal Procedure for substitute, and as no evidence was yet adduced the new complainant might file a fresh complaint before the proper Court, and in that view he discharged all the accused under Section 259 of the Code of Criminal Procedure. The present proceedings, viz., Case No. C/1054 of 1964 were thereafter started on a fresh complaint filed before the learned Additional Chief Presidency Magistrate, Calcutta, on December 26, 1964 by one Nagendra Nath Ghosh on behalf of M/s. Mrinalini Bidi Manufacturing Company (P) Ltd. and 10 accused persons were summoned under Section 78 of the Trade and Merchandise Marks Act, 1958. The defence case, inter alia, is that the accused persons are not guilty; that the accused company had been selling the brand 'Jugavatar Bidi' for the last 6 to 7 years, commanding a large sale, inducing thereby the complainant company to imitate their trade mark by making the packing and labeling etc. similar to that of the accused's brand, and that ultimately failing in their endevour to checkmate the popularity of the accused's brand, instituted the present criminal proceeding to put pressure upon them. The defence of the accused belonging to the printing press is that they did not know of the 'Jugantar' brand of bidi and they bona fide carried out the order of their customer in the usual course of business by printing the labels and packages of the 'Jugavatar Bidi' without any motive. Eighteen witnesses were examined on behalf of the prosecution and a number of exhibits were proved on behalf of the prosecution as well as the defence. As a result of the trial the learned Presidency Magistrate by his order dated December 9, 1965, acquitted the accused No. 6 out of the 10 accused persons and convicted and sentenced the remaining 9 as mentioned above. The present appeal is against the said order of conviction and sentence.