AJIT SINGH Vs. CHARAN SINGH PARDESHI

JUDGEMENT

(1.) THIS appeal has been directed by Ajit Singh (hereinafter called the complainant)against the acquittal of Charan Singh (hereinafter called the accused) recorded by the learned Additional Sessions Judge, Jullundur in a complaint under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 (hereinafter called the Act ). Shortly put, the prosecution case is that the firm known and styled as M/s. Wattan singh and Sons and the firm known and styled as M/s. Bakhtawar Engineering works manufacture agricultural machinery including chaff cutting machines, component parts and blades thereof at Goraya, district Jullundur. There are other firms which also manufacture such goods at Goraya. The complainant is the managing partner of the firm M/s. Wattan Singh and Sons and the said firm had been manufacturing the aforesaid goods under the registered trade mark of 'do chiri' since 1949. The said firm had also manufactured the said goods even earlier but without registration of the aforesaid trade mark. The said trade mark is embossed on the chaff cutting machine at the time of moulding and a plate carrying the said trade mark is also affixed on it. The goods of the aforesaid firm had gained popularity and had been on extensive sale in different parts of India, including Saharanpur and it had built up valuable goodwill for the aforesaid trade mark. Towards the close of the year 1967, the firm M/s. Bakhtawar Engineering Works began to manufacture goods with the trade mark of 'do Kabutar'. The plate carrying the said trade mark was being affixed on the chaff cutting machines. The goods of the said firm were also marketed at Saharanpur through M/s. P. S. Batra and Company, Toka and Pipe Merchants as well as at other places. The accused is the proprietor of M/s. Bakhtawar Engineering Works and P. S. Batra is the proprietor of M/s. P. S. Batra and Company, Toka and Pipe Merchants. The trade mark of 'do Kabutar' which is not registered, is identical or nearly resembling and deceptively similar to the registered trade mark of 'do Chiri'. Therefore, the complainant made complaint under Sections 78 and 79 of the Act alleging that the accused and his firm M/s. Bakhtawar Engineering Works had been falsely applying trade mark of 'do Kabutar' to their goods without his (the complainant's) assent, and thereby infringed the trade mark of 'do Chiri', held by him and had been passing off their goods as and for those of his (the complainant's) firm and it resulted into tremendous fall in the sale of his goods and had caused heavy loss to him; and that P. S. Batra and his firm had been selling the said goods of the firm of the accused knowing fully well that the trade mark of 'do Kabutar' had been falsely applied to the same. The learned Magistrate doubted the case against N. S. Batra (who seems to have been summoned as accused for P. S. Batra) and acquitted him. He, however, held the accused guilty and convicted him under section 78 of the Act and sentenced him to a fine of Rs. 2,000/- ; in default, to suffer rigorous imprisonment for six months and directed that half of the said fine, if realised, would be paid to the complainant by way of compensation. The accused preferred appeal against his aforesaid conviction and sentence and he succeeded therein; and the learned Additional Sessions Judge, setting aside his conviction and sentence, acquitted him. Dissatisfied with the said result, the complainant has come to this Court in appeal. The evidence was read out to us and we heard the arguments and examined the record.

(2.) THE facts, that the complainant's firm had been manufacturing and selling the goods under the registered trade mark of 'do Chiri', that the firm of the accused had been manufacturing goods with the trade mark of 'do Kabutar' and that the nature of the goods manufactured by them are the same and both these firms are working at Goraya and the field of their activity is the same, are amply borne out by the evidence present on record and are not disputed. The learned Additional sessions Judge acquitted the accused for three reasons: (i) that the trade mark of 'do Kabutar' was not deceptively similar; (ii) that the prosecution was barred by time under Section 92 of the Act and (iii) that there had been honest concurrent user of the trade mark 'do Kabutar' by the accused.

(3.) THE powers of this Court in hearing appeal against an order of acquittal are no doubt as extensive as the powers in hearing appeal against the order of conviction. However, due regard has to be given to the reasons recorded by the court in acquitting the accused and the same have to be dispelled before a contrary view is taken. The case of the complainant is that the accused applies trade mark of 'do Kabutar' which is deceptively similar to his (the complainant's)registered trade mark of 'do Chiri' and the said act of the accused falls within the mischief of the offence described in clause (a) of sub-section (2) of Section 77 of the Act. The expression "deceptively similar" is defined in C1. (d) of sub-section (1) of Section 2 of the Act as under: