SHEOJANAM PRASAD Vs. SUMANT PRASAD JAIN

JUDGEMENT

(1.) These two appeals have been preferred under Section 417 (3) of the Code of Criminal Procedure (hereinafter referred to as the Code) against the orders of acquittal passed. They arise out of two different cases decided by separate Judgment, but they have been heard one after the other as common question of law, namely, whether the prayer for substitution of the legal representative of the deceased complainant-appellant to prosecute the appeal admitted under Section 417 (3) of the Code in the High Court can be allowed and also whether on the death of the appellant in such an appeal the appeal abates, are involved in both the appeals though on other facts they differ; both the appeals will be disposed of by this judgment. Cr. Appeal No. 43 of 1966.

(2.) This appeal arises out of the following facts: One Sheo Janam Prasad happened to be the owner of a shop for miscellaneous articles (Parchun dealer) in Arrah town near Gopali Chawk. He filed a petition of complaint in the Court of Sadar Sub-divisional Magistrate, Arrah, on 22-2-1962, alleging inter alia that after an arduous experiment he invented a scent which he named as 'Basant Bahar' and put it for sale in the market in 1952. The scent became popular and captured a good market. The trade mark assigned to this scent is a picture of a Pan with bunch of flowers in her both hands and 'Basant Bahar' scent 'Khushbu ka Badshah' are printed on the top of the package in green colour and at the bottom the print is 'Basant Bahar' Perfumery Co., Shahbad. The complainant's case was that when the scent 'Basant Bahar' became extremely popular, the company applied before the Registrar of the Trade Marks Bombay, for its registration in the early part of 1951, but due to certain defects in the application it could not be registered; nevertheless, the trade mark acquired a wide publicity and attracted the attention of the mass of customers. The complainant alleged further that accused Sumant Prasad Jain another Parchun dealer in Arrah town initially manufactured his own scent which was named as 'Puspraj' but this scent failed to command a good market and accused being jealous of the popularity of the scent 'Basant Bahar' invented by the complainant and which had captured a good market, wanted to take undue advantage of the same and surreptitiously and fraudulently started using the trade mark of the complainant and began to sell this spurious scent in the name and style 'Basant Bahar' though in fact, the accused was counterfeiting the genuine in order to damage the popularity and sale of genuine 'Basant Bahar' scent put in the market by the complainant and the complainant (accused ?) thus committed offences punishable under Sections 482 and 486 of the Indian Penal Code.

(3.) The learned Sub-divisional Magistrate examined the complainant on solemn affirmation on 1-3-1962, and took cognizance of the offence under Sections 482 and 486 of the Penal Code and transferred the case to the court of Shri A. Ahad, Judicial Magistrate, 1st Class, for disposal and the case was ultimately heard and decided by another Munsif-Magistrate Shri Madan Mohan Pd. No. 2 at Arrah.