BHRIGUNATH PANDEY Vs. RAMNARAIN LAL PANJIARA

JUDGEMENT

(1.) This is an appeal by one Bhrigunath Pandey under Section 417 (3) of the Code of Criminal Procedure in a case in which respondent Ramnarain Lal Panjiara, proprietor of an alleged firm Pratap Ram Gobind Ram, resident of Nirmali, within the dis-trict of Bhagalpur, was tried for offences under Sections 482, 483 and 486 of the Indian Penal Code and Section 68 of the Trade Marks Act, 1940, by a Magistrate of the first class at Bhagalpur and acquitted on the ground that the complainant had failed to substantiate his case and also on the ground that the prosecution was barred under Section 15 of the Indian Merchandise Marks Act The complainant is the Manager of firm Par-tab Mull Gobind Ram carrying on business at 119 Khengrapatti Street, Calcutta. Firm Partab Mull Gobind Ram was manufacturing and selling for more than 35 years a liquid medicine in a phial, enclosed in a paper carton, bearing the name "Satya Jiwan". It was stated that by long and continuous use of the said words "Satya Jiwan" and the said carton the medicine had acquired a reputation and distinctiveness in the market as the goods manufactured by the said firm. The carton and the name "Salya Jiwan" were both registered under the Trade Marks Act being registered No. 107980 and registered No. 127541 respectively. It was alleged that the respondent was manufacturing and selling a medicine bearing the same name "Satya Jiwan" for five or six years prior to the filing of the complaint. The phial of the respondent's medicine and the carton were similar to those of the firm of complainant's master, the name of the firm producing the medicine being mentioned as Pratap Ram Gobind Ram, 159 Khengrapatti Street, Calcutta. The registered number of the trade mark of the medicine "Satya Jiwan" manufactured by the respondent was stated to be 3147. The complainant asserted that there was no firm by the name of Pratap Ram Gobind Ram at 159 Khengrapatti Street, Calcutta, The complainant's firm instituted a civil suit against the respondent in the High Court of Calcutta in respect of this infringement of their trade mark and prayed for a permanent injunction restraining the respondent from manufacturing and selling his goods under the name "Satya Jiwan". Respondent did not contest the suit and an ex parte decree was passed against him on 17-12-51. According to the allegation in the complaint the respondent, in spite of the decree passed against him was manufacturing and selling his goods under the name "Satya Jiwan" and using a carton, which was colourable imitation of the carton of the medicine of the complainant's master's firm, that the respondent was wrongfully and fraudulently passing off his goods as manufactured by the complainant's master's firm by selling the same in exactly the same size of phial as that of the complainant's master's firm in a packet exactly similar to that of the complainant's master's firm in shape and size, and that the respondent has made a false propaganda and had distributed notices at Bhagalpur and other places sometime before the institution of the case that he had registered No. 3147 for "Satya Jiwan", although in fact he had no such registered trade mark number. As the respondent was alleged to be selling his spurious goods at Bhagalpur town the complainant instituted this complaint in the Court of the Sub-divisional Magistrate of Bhagalpur on 8-9-52. Along with the petition of complaint the complainant filed a certified copy of the decree of the High Court of Calcutta together with one phial of the medicine "Satya Jiwan" manufactured by the complainant's masters firm and one phial of the spurious medicine of the respondent

(2.) The complainant further stated in his petition of complaint that he had come to know that the respondent had sent a parcel of "Satya Jiwan" manufactured by him under the alleged name of his firm Pratap Ram Gobind Ram for sale in the Bhagalpur market and that the said phials had reached Bhagalpur station and were lying in the godown of the N. W. Railway there. It was submitted that since the accused was not likely to produce any phial of medicine manufactured by him it was necessary that the parcel containing his goods should be seized. The Sub-divisional Magistrate accordingly issued a search warrant under Section 96 of the Code of Criminal Procedure for recovery of the consignment. In due course, the consignment was seized and kept in the custody of the court (exhibit I).

(3.) On 29-9-50 Sub-Inspector Tarni Pd. Sinha, attached to Nirmali P. S. searched the house of the respondent and recovered one bundle of notices of "Satya Jiwan" medicine (exhibit II). one bundle of label or "Satya Jiwan" (exhibit III), and three postcards (exhibits IV to IV-2). On the same day he searched the house of one Ambika Pd. Bodhnarain of Nirmali and recovered nine phials of "Satya Jiwan" (exhibit VIII) and one notice of "Satya Jiwan" which was pasted on the wall of the shop (exhibit VII). On a search being made of the person of the respondent a letter paper (exhibit XII) and two envelopes (exhibits VI and VI-1) were also recovered.