MOHD SATTAR Vs. BEHARI LAL JAIN

JUDGEMENT

(1.) This is a report under Section 438, Criminal P.C., by the learned Sessions Judge of Mirzapur recommending that the order of acquittal of Behari Lal Jain from offences under Secs.482, 483 and 486, Indian Penal Code, be set aside. Briefly the facts are as follows:

(2.) Mohammad Sattar, the complainant, is a manufacturer of bidis in Mirzapur city. The packets of his bidis bear a pictorial trade-mark label known as Toofan Mail Bidis. A copy of that picture is on the record. The accused is also a manufacturer of bidis in the same city and admittedly he has been using a pictorial trade-mark on the packets of his bidis known as the Imperial Mail . It was Mohammad Sattar's case that the accused has by using the label known as the Imperial Mail pirated upon his trade-mark and has thus committed offences under Secs.480, 483 and 486.

(3.) Learned trying Magistrate, Mr. P.J. Moore, by his judgment, dated 24-8-1946, acquitted the accused. His judgment runs into fourteen manuscript pages. He has dealt with the evidence and has critically examined every factor. He remarks: Having regard to the definition of counterfeit and the effect that the points of resemblance between the two labels might have on the average type of persons smoking bidis I should think that there can be little doubt that the ordinary public would easily confuse the Imperial and Toofan Mail brands and purchase the one thinking that it was the other. If, therefore, Mohd. Sattar's case were correct that B.L. Jain introduced his label Imperial Mail in the circumstances alleged in the complaint and in the evidence of Mohd. Sattar and Gouri Shankar I should have little hesitation in holding that the accused fraudulently used a false trademark and sold bidis under a counterfeit mark. I would say that in the present case the salient pictorial features of a railway train, water, hilly background and rail track are so common to both Exs. P2 and P3 that a person wanting Toofan might easily have Imperial foisted on him and vice versa. Colourable imitation is enough to make a person liable; and the right to a trade-mark can be acquired by user, according to other rulings cited by complainant's counsel.