GIRIDHARILAL MARWARI Vs. EMPEROR

JUDGEMENT

(1.) The petitioner Girdharilal Marwari, who is a partner of the firm of Shew Bhagwan Girdhari Lal, biri manufacturers of Jhalda in Manbhum, was convicted by a Magistrate of Ranchi under Section 482, I.P.C., and sentenced to pay a fine of Rs. 1,000 and in default to suffer six months rigorous imprisonment for using on the packets of biris manufactured in his firm a false trade mark being colourable imitation of the registered trade mark of the firms Maliram Mahabir Prasad and Bansidhar Anantram, also biri manufacturers at Jhalda and masters of the complainant. Out of the fine if realized Rs. 500 was awarded as compensation to the complainant under Section 545, Criminal P.C. His appEal has been summarily dismissed by the Judicial Commissioner of Chota Nagpur. It is not disputed that the petitioner used the trade mark in question, nor is it contended, if the label used by the petitioner is false, that he used it without any intention to defraud. In fact it has been established beyond doubt by the evidence of the manufacturers of the disputed label and the letters of the petitioner that the latter wanted that the label should be as much similar to the one used by the firms of the complainant's masters as possible.

(2.) Only two points have been urged on behalf of the petitioner: (1) that there is no evidence that the petitioner used the label at Ranchi and therefore the Magistrate at Ranchi had no jurisdiction to try the case and (2) that the disputed label is not a colourable imitation of the label of the complainant's masters. About the first point, it is true that there is no clear statement by any of the witnesses examined that the petitioner himself sold the packets of biris bearing the false trade mark at Ranchi, but there is clear evidence that the biris bearing that mark are stocked by shop-keepers at Ranchi and that they have been selling them there, and a reading of the evidence of the witnesses as a whole leaves no room for doubt that the petitioner did use the false trade mark at Ranchi. Hira Lal (P.W. 2) says: I stock both brands of biris.... I commenced stocking the horse brand (complainant's masters brand) biris five years ago and the biris bearing the sheep brand (the accused's brand) three months ago. I have been purchasing the sheep brand as the packets are cheaper. The brands seen together appear similar.

(3.) M.K. Das Gupta (P.W. 3) says: I purchase the sheep brand mostly as the sale of horse brand biri has declined The horse and the sheep brands appear similar except for the animals. An illiterate cannot differentiate between the two brands.