ARJAN DASS Vs. STATE OF PUNJAB

JUDGEMENT

(1.) These are two criminal revisions. Criminal Revision No. 354 of 1969 has been filed by Arjan Dass and Ram Narain while Criminal Revision No. 806 of 1969 has been filed by Krishan Chand against the petitioners in Criminal Revision No. 354 of 1969 for enhancement of their sentences. Arjan Dass and Ram Narain were convicted by the trial Magistrate under Section 78 of the Trade and Merchandise Act, 1958, hereinafter called 'the Act' and sentenced to rigorous imprisonment for four months each. They were further convicted under Section 79 of the Act and each of them sentenced to rigorous imprisonment for six months and to pay fine of Rs. 500/- or in default of payment of fine to undergo further rigorous imprisonment for three months. Both the sentences were directed to run concurrently. On appeal, their convictions were maintained. Their sentences of imprisonment were reduced to those already undergone. As regards the sentence of fine, fine of Rs. 250/- was imposed on each of the petitioners in respect of each of the two Courts and it was further directed that out of the fine realised, Rs. 500 shall be paid as compensation to Krishan Chand complaint.

(2.) Krishan Chand carried on business of manufacture and sale of soap at Abohar under the firm name of Public Soap Works. He got trade mark of'Khargosh Special' inscribed on cakes of soap manufactures by him registered on April 15, 1958 under Section 28 of the Act. Ram Narain and his father Arjan Dass petitioners in Criminal Revision No. 354 of 1969 and respondents in Criminal Revision No. 806 of 1969 started in 1962 business of manufacture and sale of soap under the firm name of Parama Soap Factory also at Abohar. They used the trade mark of 'Rat' inscribed in the cakes of soap manufactures by them. On July 6, 1962, notice was served on Arjan Dass and Ram Narain by Krishan Chand communicating his trade mark and that they should stop so doing. In their reply dated July 8, 1962. Arjan Dass and Ram Narain denied that they had in any way imitated his trade mark. They, however, stated that although earlier they had been carrying on manufacture of soap with the figure of 'Khargosh' inscribed on the cakes of soap manufactured by them but they stopped so doing and that the trade mark, which they were using on the cakes of their soap was 'Rat' and not 'Khargosh'. They repudiated the suggestion that they had infringed the trade mark of Krishan Chand. On November 12, 1962, a complaint was filed by Krishan Chand against Arjan Dass and Ram Narain for offences under Sections 78 and 79 of the Act and under Section 486 of the Indian Penal Code stating that the latter were manufacturing and selling soap under the false and counterfeit trade mark of 'Rat', which resembled the trade mark of 'Khargosh Special' belonging to the complainant and duly registered under the Act. It was pleaded in the complaint that the accused had adopted the trade mark with the criminal intention of inducing the customers to purchase soap from them as if the soap was the manufacture of the complainant and were thus causing illegal loss to the complainant.

(3.) In support of the complaint, the complainant himself went into the witness box as PW-1 and produced the evidence of Nikka Ram PW-2 Khetu Ram PW-3, Chanan Ram PW-4, Virinder Partap PW-5, Amar Nath PW-6 and Shri Hardial, Advocate PW-7. Krishan Chand stated that he had been carrying on business under the firm name of Public Soap Works as inscribed on cakes of soap manufactures by him with the words 'Khargosh Special' along with the figure of 'Rabbit' inscribed on the cakes of soap manufactured by him and that he got his trade mark registered in 1958. He proved the certificate of registration showing that the trade mark with the figure of 'Rabbit' and with the words 'Khargosh Special' inscribed on the cakes of soap manufactures by him had been registered with the Registrar of Trade Marks. He also proved soap Exhibit P.1 manufactured by him and soap P.2 manufactured by the accused to show close resemblance between the two soaps and the likelihood of an unwary customer being deceived in purchasing their soap with their particulars inscribed as if it were the soap of the complainant. Nikka Ram, Khetu Ram and Chanan Ram PWs. deposed to the fact that the complainant was manufacturer of 'Khargosh Special' soap under the trade mark of 'Khargosh Special' and that he had extensive business of sale of that soap. They added that the because of the close resemblance between P.1 and P.2, customers were likely to be misled in going in for soap manufactured by the accused as if it was soap manufactured by the complainant. Virinder Partap P.W. is the son of the complainant.. He stated that he had purchased P.2 from the son of the accused and it is that soap with their firm name and the figure of 'Rat' inscribed thereon resembling that of 'Rabbit' as inscribed on the soap manufactured by the complainant. Amar Nath P.W. stated that the accused had at first been selling soap with the words 'Sher Makra' inscribed on it but later on they changed it to trade of 'Rat' inscribed thereon and that the figure of 'Rat' resembled the figure of 'Rabbit' inscribed on the soap manufactured by the complainant. Shri Hardial, Advocate proved reply Exhibit P.D. to the notice served on the accused on behalf of the complainant.