JOGESWAR PATEL Vs. RAMNIVAS AGARWALL

JUDGEMENT

(1.) THIS is an appeal against an order of acquittal, passed by the learned Magistrate 1st Class Sambalpur, in Criminal Case No. C. 1. 44 of 1959, whereby the learned magistrate had acquitted the accused respondents of a charge under Section 482/483/486 Indian Penal Code for counterfeiting the trade marks used by the firm of the complainant appellant on Biris manufacured by them in the circumstances hereinafter stated.

(2.) THE appellant (hereinafter referred to as the complainant) is the manager of a firm known as Dr. S. Guha and Co. , Desh Bandhu Biri 'works' Sambalpur and carries on business on Bidi in packets of 25 and 500 each; the label on packets of 25 biris is the most distinctive and decorative for the purpose of identification of the origin of the goods; the said firm has been using the label since 1908 and as such their trade mark has been registered under the Trade Marks Act (Act VJ of 1940. In April 1958, the complainant got information, that spurious Biris bearing false or counterfeit marks of Berlia and Company, Berlia Biri Works of the accused respondents were being offered for sala and sold, as and for the Biris of the complainant in the market of Sambalpur, Bolangir, Ghinchinda, Burla and elsewhere; the firm of the complainant purchased a few packets and found the, label used by the accused respondents and were satisfied that they were false and counterfeit of the trade mark of the complainant's firm and were being used to pass off as the Biris of the complainant's firm; thereafter, after due notice, the complainant filed a complaint petition before the Sub-divisional Magistrate, sambalpur charging the accused respondents under sections 482/483/485/480 indian. Penal Code. The learned Magistrate acquitted the accused respondents of the said charges for alleged counterfeiting of trade marks as aforesaid. Hence this appeal filed by the complainant against the said order of acquittal.

(3.) THE only point,--urged by Mr. B. M. Patnaik, learned counsel for the complainant (appellant herein), is that the learned Magistrate came to a wrong conclusion, on an incorrect view of the law on the subject, in his finding that, although there were similarities and resemblance in the labels and also in the colour, size and the placing of the printings thereof,--the labels used by the accused respondents cannot, in any way, be said to be false or counterfeit trade marks of the labels used by the complainant's firm on similar packets.