Patna High Court
Sheojanam Prasad And Anr. vs Sumant Prasad Jain And Ors. on 10 April, 1969
Equivalent citations: AIR1971PAT124, AIR 1971 PATNA 124
JUDGMENT P.K. Banerji, J.
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.
4. At the trial the accused pleaded not guilty to the allegations and contended that 'Basant Bahar' scent is the original product of the accused. He learnt of its preparation from D. W. 5 as long back as during the years 1948 to 1950 and the complainant was imitating the genuine scent invented by the accused. The accused had sent a lawyer's notice to the complainant on 22-2-1962, alleging the imitation of his scent and to put pressure on him the complainant hastened with a petition of complaint on 22-2-1962. The accused further contended that he got the trade mark 'Basant Bahar' registered before the institution of this case and he committed no offence.
5. At the trial eleven witnesses were examined on behalf of the complainant and eight witnesses were examined by the defence. The learned Munsif-Magistrate on an appraisement of the evidence, both oral and documentary, adduced by the parties came to the finding that the scent 'Basant Bahar' manufactured by the complainant was older than that of the accused and it was commanding a better market and a Herculean attempt was being made by the accused to compete with the genuine scent of the complainant and he was trying to circulate his own scent, which is or an inferior quality, as 'Basant Bahar' scent of the complainant. The finding of the learned Magistrate further was that the complainant has got a genuine trade mark over his scent and in view of the superior quality of the scent of the complainant the natural presumption would be that the inferior quality would try to compete with the superior one and the scent of the complainant being superior must have been envied by the accused. Consequently the finding of the trial Court has been that the accused has imitated the scent of the complainant and the offences under Sections 482 and 486 were established against the accused on the evidence on record. On this finding the learned Munsif-Magistrate convicted the accused under Section 482 of the Indian Penal Code and sentenced him to pay a fine of Rs. 250/- or in default to undergo rigorous imprisonment for a month and a half. The accused was also convicted under Section 486 of the Penal Code and was sentenced to pay a fine of Rs. 250/- or in default to undergo rigorous imprisonment for a month and a half and the sentences were directed to run separately.
6. On appeal the learned Additional Sessions Judge of Arrah, set aside the conviction and the sentences on a point of law, although the facts found by the trial Court were not disturbed and the appellate court wrote to say that on facts the evidence adduced on behalf of the complainant undoubtedly appeared to be superior to that adduced on behalf of the appellant (accused). He however took the view that the allegations, under Sections 482 and 486 could not be legally sustained as the complainant alleged in his petition of complaint that the appellant, namely the accused, was using false 'trade mark' by counterfeiting the complainant's 'trade mark' in promoting the sale of his scent of inferior quality and the complainant did not claim in his petition of complaint the distinctive features on the cartons used in packing the scent as his property mark and in Ms evidence the complainant" made a grievance that the appellant was using the false trade mark in selling his own scent. Consequently since the use of false trade mark no longer constituted a penal offence punishable under Section 482 or 486 of the Penal Code and since the use of false trade mark can now be dealt with only under the Trade and Merchandise Marks Act of 1958, the appellant could utmost be held guilty of having infringed upon an unregistered trade mark of the complainant but for which the latter could have no remedy even under the Trade and Merchandise Marks Act, as under Section 27 of the Act no person is entitled to institute any proceeding to prevent or to recover damages for the infringement of an unregistered trade mark.
7. Being aggrieved by the above decision of the lower appellate court complainant Sheojanam Prasad preferred this appeal before this Court under Section 417 (3) of the Code and correctness of the findings of the lower appellate court that there was no allegation in the petition of complaint or in the evidence that the respondent had made a false property mark and that the allegation was only for a false trade mark have been challenged by Mr. Prem Shankar Sahay, learned counsel, supporting the appeal before us and his contention has been that the lower appellate court considered only paragraph 15 of the petition of complaint and committed an error of record by overlooking the averments made in paragraph 14 wherein it was stated that the respondent namely Sumant Prasad Jain had been packing scent in receptacles of various varieties with inferior quality of scent which are being easily palmed off as the genuine 'Basant Bahar' of the complainant and the learned Judge should have read in the petition of complaint a clear case substantially made out, of false property mark although the words 'property mark' were not specifically used therein. Mr. Sahay further contended that the evidence adduced on behalf of the appellant did prove that the respondent had imitated the scent of the appellant by making false property mark and this clearly comes within the meaning of Section 479 of the Indian Penal Code and the offences under Sections 482 and 486 of the Penal Code were thus complete.
8. The appeal was filed in this Court on 10-5-1966 and it was admitted on 11-5-1966; a little over a year after this, the sole appellant Sheojanam Prasad died on 22-7-1967. On 22-12-1967, Ashok Kumar son of Sheojanam filed a petition to be substituted in place of his deceased father to enable him to prosecute this appeal and this petition for substitution in place of the sole complainant-appellant in this appeal has been opposed before us by Mr. Purnendu Natayan, firstly, on the ground that there is no provision for substitution in place of a deceased party in a criminal case or appeal and secondly, on the ground that in view of the provision of Section 431 of the Code, the appeal abated on the death of the sole appellant. Mr. Prem Shankar Sahay on behalf of the appellant has also addressed us against the above objection raised and these same points are also involved in the other criminal appeal No. 37 of 1966 and Mr. Baidya Nath Prasad No. 2 appearing for the appellant in that case adopted the submissions of Mr. Prem Shankar Sahay on this point, though it was opposed by Mr. Md. Khalil appearing for the respondent in that appeal.
9. The common question of law involved in the two appeals came up for consideration before a Single Judge of this Court (K.K. Dutta, J.) in Criminal Appeal No. 43 of 1966 and by order dated 10-1-1968 his Lordship while dealing with the petition filed by Ashok Kumar son of the deceased appellant Sheojanam Prasad for being substituted in place of deceased father, took the view that the questions as to how an appeal preferred in accordance with Section 417 (3) of the Code should be dealt with after the death of the sole appellant in case it is held that it does not abate on the death of the appellant is not free from difficulty, and since such appeals by the complainant after obtaining leave of the Court have now a days become quite frequent, the question as to whether such an appeal under Section 417 (3) of the Code abates on the death of the sole appellant and if the same does not abate how such appeal should be dealt with, are bound to arise in a number of cases in future and as such it is necessary that these questions as also the other question regarding the prayer for substitution of the legal representative of the deceased sole appellant in the appeal should be finally decided by a Division Bench.
10. So far as the question regarding the prayer of Ashok Kumar son of the deceased appellant Sheojanam Prasad for his substitution is concerned, it must be rejected outright as there is no provision in the Code for substitution in place of a deceased party unlike suits and appeals under the Civil Procedure Code where abatement is not upon death but only by omission to substitute heirs and legal representatives within the time prescribed by law.
11. A 'complainant' is the person who is examined as such under Section 200 of the Code and the right of appeal under Section 417 (3) of the Code is a personal right given to the person on whose complaint cognizance was taken of the alleged offence. In the words of his Lordship Hidayatullah, J. (as he then was) in the case of Gajapath Rao v. State of Andhra Pradesh, AIR 1964 SC 1645:
"...... An appeal is not a heritable asset and does not devolve as a matter of course upon an executor or heir. Even under the civil law an express provision is required for substitution of another person in the place of the person deceased before the appeal can be continued and this is against subject to whether the cause of action survives or not.''
12. Section 431 of the Code reads thus:
"...... Every appeal under Section 411-A, Sub-section (2) or section 417 shall finally abate on the death of the accused and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant".
13. Consequently the abatement under Section 431 of the Code, when it occurs, is final and no question of substitution can arise at all and that is why the Code does not contain any provision for substitution of any one in place of the deceased in any appeal either against an order of acquittal or against any other order.
14. So far as the second contention is concerned I may refer to Section 417 (3) of the Code which reads thus:
"If such an order of acquittal is passed in any case instituted upon a complaint and the Court on an application made to it by the complainant in this behalf gran is a special leave to appeal from the order of the acquittal the complainant may present such an appeal to the High Court."
This provision of law was introduced by the Amending Act of 1955. Prior to the amendment there was no provision for an appeal by the complainant against an order of acquittal either under Section 417 or under any other section of the Code with the result that there was no provision in Section 431 of the Code as to what would happen in case of the death of the sole appellant in such an appeal. No corresponding amendment was made under Section 431 of the Code after the introduction of Sub-section (3) in Section 417 of the amending Act of 1955. It may however be noted that, Section 431 of the Code as it reads is in two parts; the earlier part relates to appeal against orders of acquittal under Sections 411A (2) and 417 and the latter part refers to appeal against an order of conviction and other appeals. The second part of the section has to be read on reference to the first part and as such the words every other appeal in the second part of the section clearly meant every appeal other than those covered by the earlier part of the section, namely those under Section 411-A (2) or under Section 417.
15. The Code does not provide for abatement of an appeal on the death of the appellant in such appeal. Under the terms of Section 431 an appeal under Section 417 (with which we are concerned here) can abate only on the death of the accused. In the case of Pranab Kumar v. State of West Bengal, AIR 1959 SC 144 their Lordships examining Section 431 observed thus:
"It is manifest that the Section in terms applies only to appeals and lays down that an appeal against an order of acquittal passed by the High Court in exercise of its original criminal jurisdiction or an appeal to the High Court from an order of acquittal passed by any Court other than, the High Court shall finally abate upon the death of the accused and all appeals under Chapter XXXI except an appeal from a sentence of fine shall finally abate on the death of the appellant. The first part of the section dealing as it does with appeals against orders of acquittal naturally provides that such appeals must, necessarily abate because the accused persons has passed beyond the jurisdiction of the Court. The second part of the section deals with appeals by convicted persons or by a person who has been deprived of any property or who has been ordered to furnish security, etc., and lays down that such appeals shall finally abate on the death of the appellant except appeals from a sentence of fine".
16. This question came up for consideration before a Single Judge of Madras High Court in the Thothan v. Murugan, AIR 1958 Mad 624 and the view taken in that case was that in absence of any specific provision for the legal representative to be brought on the record and appellant having died the question of prosecuting the appeal further did not arise. The learned Judge however while dismissing the application for bringing on record the legal representative appears to have been satisfied that the acquittal was justified.
17. In the case of Nanilal Shamanta v. Rabin Ghose, AIR 1964 Cal 64 the same point came up for discussion before a Single Judge and the following observation of his Lordship may be usefully quoted here:
"It is manifest that the section in terms, applies only to appeals and lays down that an appeal against an order of acquittal passed by the High Court in exercise of its original criminal jurisdiction or an appeal to the High Court from an order of acquittal passed by any court other than the High Court shall finally abate upon the death of the accused and all appeal under Chapter XXXI except an appeal from sentence of fine shall finally abate on the death of the appellant. The first part of the section deals with appeals by convicted persons or by a person who has been deprived of any property or who has been ordered to furnish security etc. and lays down that such appeals shall finally abate on the death of the appellant except appeals from a sentence of fine".
I respectfully agree with the view taken in this case that an admitted appeal against the order of acquittal presented to the High Court under Section 417 (3) does not abate on the death of the appellant. It finally abates on the death of the accused as enjoined by Section 431 of the Code. It does not however bring about the consequence of abatement of such appeal nor does such death relieve the appellate court of the duty to dispose of the appeal in accordance with Section 423.
Consequently Section 423 of the Code which becomes relevant may be read in this connection:
"(1) The appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader if he appears, and the Public Prosecutor if he appears and in case of an appeal under Section 411A Sub-section (2) or Section 417 the accused if he appears, the Court may if it considers that there is no sufficient ground for interfering, dismiss the appeal or may
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made or that the accused be retried or committed for trial as the case may be or find him guilty and pass sentence on him according to law:
(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence or with or without altering the finding, reduce the sentence or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but subject to the provisions of Section 106, Sub-section (3) not so as to enhance the same.
(c) in appeal from any other order, alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just or proper.
18. Section 495 of the Code provides that a Magistrate enquiring into or trying any case may permit the prosecution to be conducted by any person other than the officer of the police and as such he may in a complaint case allow it to be prosecuted by some body other than the original complaint. On the same principle this Court, as well in an admitted appeal against the order of acquittal presented to the High Court under Section 417 (3) of the Code and which as a consequence of the death of the sole appellant does not abate can permit any one considered competent to prosecute the appeal with a view to assist the Court in coming to its decision in the appeal. It is true that with the death of the sole appellant the power given to the Advocate automatically ceases, but since the deceased appellant's learned Advocate Mr. Prem Shankar Sahay was ready to present the appellant's case only with a view to assist the court in coming to a decision, we permitted him to do so and he has accordingly been heard.
19. Coming now to the merits of the appeal: it is not disputed that both the complainant and the accused were selling their respective scents 'Basant Bahar' under very such the same name and style and they were using virtually the same distinctive marks on their respective cartons. It is also not disputed that no 'trade mark' of the 'Basant Bahar' business of the respective parties was registered according to law. The appellant produced a certificate from the Patent Office of the Government of India dated 23-9-1962; according to the very terms printed on the certificate itself it could not be admissible in evidence. Further according to the very undertaking, given by accused Sumant Pd. Tain the distinctive feature on the cartons could not be used by him as a trade mark. That being so, the question of using false trade mark does not arise in this case and a case for using false trade mark is no longer a penal offence punishable under the Indian Penal Code since after the passing of Trade and Merchandise Marks Act, 1958, Section 482 of the Penal Code now provides punishment only for use of false property mark though formerly it provided punishment for use of false trade mark as well.
20. In the instant case the findings of the trial Court based on the evidence adduced in the case are that two "Basant Bahar' scents of the complainant and of the accused having common trade mark were in circulation though manufactured by two different hands and the scent of the complainant is older than that of the accused and it commanded a better market and it was but natural for the accused to rise in competition with that of the complainant. The trial Court came to a further finding on a consideration of the evidence that an herculean attempt was being made by the accused to compete with the genuine scent of the complainant and he was trying to circulate his own scent which is of an inferior quality and the natural presumption would be that the inferior one would try to compete with superior one and the scent of the complainant being superior must have been the subject of envy and jealousy of the accused. The learned Munsif-Magistrate accordingly came to a clear finding that the accused Sumant Pd. Jain imitated the scent of the complainant. The correctness of this finding based on evidence has not been disturbed by the learned Additional Sessions Judge in appeal and in paragraph 13 of his judgment he writes to say:
"Both parties entered into evidence and such asserted that his product was older than that of the other. On facts the evidence adduced on behalf of the complainant undoubtedly appears to be superior to that adduced on behalf of the appellant".
We have been taken through the entire evidence and on a perusal of the same I see no reason to take a different view in the matter and since the correctness of these findings of the two courts below have not been challenged before us, I need not refer to them over again in detail and I affirm the finding that the scent 'Basant Bahar' produced and placed in the market for sale by complainant Sheo Janam Prasad is older to the scent 'Basant Bahar' manufactured by Sumant Pd. Jain and the scent produced by the deceased complainant Sheo Janam Prasad being superior in quality was commanding a good sale in the local market.
21. The lower appellate court however took the view, as I have indicated earlier, that the convictions of the accused under Sections 482 and 486 of the Indian Penal Code could not be sustained as the allegation made by the complainant was that the accused had infringed upon an unregistered trade mark of the complainant but the latter could have no remedy for this accusation even under the Trade and Merchandise Marks Act and the complainant had nowhere suggested that the accused had been using the false property mark to promote sale of his own scent. It is true that the word 'trade mark' has been used in the petition of complaint. In paragraph 6 of the petition of complaint it is said that "the trade mark used by the complainant for 'Basant Bahar' scent is a Pari with bunch of flowers in each hand with Basant Bahar scent 'Khusbu Ka Badshah' printed above the head and Basant Bahar Perfumery Co., Shahabad printed at the foot of the package. The other part of the trade mark consists of 'Basant Bahar' in English and 'Basant Bahar' scent 'Khusbu Ka Badshah' is printed in Hindi".
In paragraph 10 of the petition of complaint it is stated that:
'the trade mark used by the complainant has become very popular".
In paragraph 14 of the complaint petition, however, it is stated that:
"That the failure of the 'Pushparaj' led the accused to devise ways and means of destroying the business credit of 'Basant Bahar' by surreptitiously and fraudulently and deliberately Printed Trade mark Label of Basant Bahar and packing scent in receptacles of various varieties with inferior quality of scent which are mainly being palmed off as the genuine 'Basant Bahar' of the complainant with the result that the accused uses false trade mark and sells inferior quality Basant Bahar to defame and destroy the good name of the complainant and this scent (Basant Bahar) and make illegal gain for himself".
In paragraph 16 it is said that:
"Accused committed offence and is continuing the offence under Sections 482 and 486 of the Penal Code."
22. In his statement on solemn affirmation before the Subdivisional Magistrate the complainant stated that the accused was selling spurious 'Basant Bahar' scent packed in similar phials and similar labels with inferior quality which are being palmed off as genuine 'Basant Bahar' of the complainant. From the above statement in the petition of complaint and on solemn affirmation it is evident that although the word 'trade mark' has been rather loosely used at places, the substance of the accusation that the accused had been counterfeiting the property mark of 'Basant Bahar' scent of the complainant is clear. According to the Trade and Merchandise Marks Act 1958 'trade mark' means "A mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark".
23. Section 479 of the Penal Code defines :
"A mark used for denoting that move-able property belonged to a particular person is called the property mark".
24. Section 481 of the Penal Code provides that "Whoever marks any moveable property or goods or any case, package or other receptacle containing moveable property or goods or uses any case, package or other receptacle having any mark thereon, in a manner reasonably calculated to cause it to be believed that the property or goods so marked or any property or goods contained in any such receptacle so marked belong to a person to whom they did not belong is said to use a false property mark". The ingredients of Section 481 are :
1. Marking any moveable property or goods or case, package, or receptacle containing goods or using any case, package or receptacle, with any mark thereon.
2. Such marking or using must be in a manner reasonably calculated to cause it to be believed that the property or goods so marked or the property or goods contained in such receptacle belonged to a person to whom they did not belong.
25. Section 482 reads thus :
"Whoever uses any false property mark shall unless he proves that he acted without intent to defraud, be punished with imprisonment of either description for a term which may extend to one year or with fine or with both".
26. In my opinion the learned Additional Sessions Judge was not correct in overlooking the substance of the accusation in the petition of complaint and in the statement on solemn affirmation as also in evidence of the complainant and his witnesses in Court and in construing the accusation as one of infringement of trade mark in view of the loose use of the words "trade mark" at places in the petition of complaint and in evidence. The substance and not the form is relevant. The complainant clearly stated in the "petition of complaint that the offences committed were under Sections 482 and 486 of the Penal Code and as such Mr. Pumendu Narain, learned counsel for the respondent was not justified to contend that in view of the use of the word "trade mark' in the petition of complaint the mind of the accused' was always working under the impression that the offence alleged against him was for infringement of trade mark and not of property mark. In view of what is stated above, no prejudice could have been caused to the acbused on this score.
27. The lower appellate Court says at one place of its judgment that there are indications on the cartons used by the appellant (accused) to suggest that these are not the products of the complainant's concern. The complainant's case in paragraph 12 onwards of the complaint petition is that "the finding that 'Basant Bahar' has become very popular with the masses and controls big markets the accused started the manufacture and sale of a scent which he named as pusparaj and used a lady' (picture) as Trade Mark, but in spite of the best attempt of the accused neither the quality nor the popularity of 'Pusparaj' reached the level of Basant Bahar and this failure of 'Pusparaj' led the accused to devise ways and means of destroying the quality by surreptitiously and fraudulently and deliberately printing the trade mark of Basant Bahar and packing scent in receptacle of various varieties with inferior quality of scent which are easily palmed off as genuine Basant Bahar of the complainant".
The finding of the trial Court which has not been disturbed by the Court of appeal below and which on the evidence on record is justified is that a herculean attempt was being made by the accused to compete with the genuine scent of the complainant and he was trying to circulate the scent which is of inferior quality. The finding finds support from the fact that accused Sumant Prasad Jain tried to compete with the complainant's scent by naming his own scent of inferior quality in the same way as that of the complainant, namely, 'Basant Bahar' "Scent of Flowers" and by using the same printed 'Pari' with flowers in both the hands in a green paper package almost of the same size and shade with 'Basant Bahar Scent of Flowers' printed in English on the top of the package and 'Basant Bahar Scent Khusbu ka Badshah' printed in Hindi on the reverse.
28. Accused Sumant Pd. Jain also named his subsequently produced scent exactly in the same form and style 'Basant Bahar of Flowers' printed in English on the front side and "Basant Bahar Soent Khusbu ka Badshah' printed in Hindi on reverse side of the green package : the only difference being the respective names of the producers printed at the bottom of the package. On complainant's package of the scent is printed 'Basant Banar Perfumery Co., Shahabad in English on one side and in Hindi on the reverse and the green package of the accused bears a print Basant Bahar Chemical Co., Shahabad'. The scents of the parties are being sold in the market in green packages of almost the same size and appearance. They have been produced before us by Mr. Sahay for our examination as the scents were admitted as material exhibits in the trial Court but they being material exhibits were not forwarded to this Court with the record. The identity of the scents produced by Mr. Sahay have not been challenged by Mr. Purnendu Narain appearing for the respondent and I find that the scents 'Basant Bahar' of each party are in three different sizes and packages, the smallest size of the scent being in small phials with almost exactly the same label pasted on the small phials and with paper wrapper of yellow shade and a look at these packages and phials of three different sizes placed in the market by respective parties will at once give an impression that one is counterfeit to the other and the resemblance is so close that the counterfeit product of the respondent (accused) can easily deceive a customer for the genuine Basant Bahar scent of the complainant.
29. In a case before the Supreme Court the State of Uttar Pradesh v. Hafiz Mohd. Ismail, AIR 1960 SC 669 = 1960 BLJR 337, one Bhagawan Swarup Saxena, or Lever Bros. Ltd., India came to know that counterfeit Sunlight and Lifebuoy soaps were being manufactured and sold on a large scale in Yahiaganj and other places in Lucknow. This was investigated on behalf of the company which manufactured genuine Sunlight and Lifebuoy soaps. It has found that two soap factories in Lucknow were manufacturing counterfeit Sunlight and Lifebuoy soaps. It was also found that Hafiz Mohammad Ismail and another who were respondents in the two appeals before the Supreme Court were selling these counterfeit soaps in Yahiaganj. Consequently a raid was made on the two shops with the help of the police. A large number of soaps were recovered from the shops wrapped in labels said to be counterfeits of those in which the genuine Sunlight and Lifebuoy soaps of the company were sold. Consequently the two respondents were prosecuted under Sections 482 and 486 of the Penal Code. The Magistrate found the case proved and held that the labels in which the respondents were selling soaps were counterfeit. He therefore convicted the respondents under Sections 482 and 486 of the Code. The appeal was dismissed by the Sessions Judge. In revision the High Court however held that the case did not fall under Section 482 and therefore acquitted them. It also held that the labels or wrappers used on the soaps sold by the respondent could not be regarded as counterfeit of the genuine wrappers and labels of the Sunlight and Lifebuoy soaps though they were colourable imitation of the same. It therefore acquitted them under Section 486 also. The acquittal under Section 486 was challenged before the Supreme Court. Their Lordships after analysing Section 28 of the Penal Code held that two things were necessary to be decided in this namely (1) whether the labels or wrappers on the soaps sold by the respondents were made to resemble the labels and wrappers of the genuine Sunlight and Lifebuoy soaps and (2) if it is found that in fact one thing has been made to resemble another it had further to decide whether the resemblance was such that a person might be deceived. If both these things were found, the labels and wrappers in this case would be counterfeit and the necessary intention or knowledge would be presumed unless the contrary was proved.
30. I may usefully refer to Section 28 of the Penal Code which reads in these terms :
"A person is said to 'counterfeit' who causes one thing to resemble another thing intending by means of that resemblance to practise deception or knowing it to be likely . that deception will thereby be practised.
Explanation 1. It is not essential to counterfeiting that the imitation should be exact.
Explanation 2. When a person causes one thing to resemble another thing and the resemblance is such that a person might be deceived thereby it shall be presumed until the contrary is proved that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely deception would thereby be practised."
31. Reading Sections 479, 481 and 482 of the Penal Code together it becomes clear that if the maker of an article puts on it the mark of another maker, and he does this with intention that the purchasers may be induced to believe that the article was made by such other maker, he commits the offence within the meaning of Section 482. If a person uses a certain mark to indicate to his customers that they will thus have the benefit of his skill in selection, then the mark would be a property mark and not trade mark.
32. After having examined the packages and phials of 'Basant Bahar' products of respective parties, I am clearly of the opinion that their resemblances is such that a person may be deceived by 'Basant Bahar' product of the respondent Sumant Pd. Jain who introduced his 'Basant Bahar' much after the introduction of 'Basant Bahar' scent of the deceased-complainant in the market and the respondent accused having failed to prove that he did not use false property mark and he having failed to prove that he acted without intent to defraud or deceive the customer clearly committed an offence within the meaning of Section 482 of the Penal Code.
33. By introducing the same product with counterfeit property mark for sale in the market the respondent Sumant Pd. Jain committed the offence within the meaning of Section 486 when read with explanation 2 of the Section 28 of the Penal Code. The accused-respondent, on whom was the onus having failed to prove to the contrary it must be held that his necessary knowledge was there and the packages and labels of his 'Basant Bahar' scent are counterfeit to the genuine packages and labels of the Basant scent of the complainant earlier introduced in the market for sale and business.
34. In this view of the matter, the appeal must succeed. The order of the learned Additional Sessions Judge is set aside and the order of conviction and the sentence imposed on the accused by the trial court are restored.
Cr. Appeal No. 37 of 1966.
35. This appeal under Section 417 (3) of the Code of Criminal Procedure was admitted in this Court on 28-4-1966. During the pendency of the appeal, complainant Amar Singh died on 12-2-1968 and a petition for substitution in his place was filed on 31-3-1968 by another person to prosecute the appeal.
36. The appeal is directed against the order of acquittal of the respondents by the learned Assistant Sessions Judge of Muzaffar-pur, who on appeal set aside the conviction of the appellants before him under Sections 379 and 144 of the Indian Penal Code.
37. The facts of the case in short are that on 1st December, 1963, at about 3 P. M. the accused persons (respondents) came upon the land of the complainant bearing Survey Plot No. 160 of village Shahjahanpur-Bhatwalia and began to harvest the standing paddy crop of the land belonging to the complainant. One Rajdeo Singh who was grazing his cattle nearby informed the complainant about it. The complainant rushed to the place of occurrence and saw the accused persons engaged in the harvest. On his protest the accused persons became ready to assault him, whereupon, the complainant sent his son Matuk-dhari to inform the police about the occurrence on telephone and it was done. The officer-in-charge Sadar police station on receiving the telephonic message from Mushari block about the occurrence visited the place of occurrence and found the crop of the land in question already harvested. He recorded the statement of the complainant at village Bhatwalia at 17 hours on 1-2-1963 and took up investigation and after completing the same submitted final report due to want of evidence. The complainant thereafter filed a protest petition before the Subdivisional Magistrate and after enquiry report the Sub-divisional Magistrate took cognizance of the offence and transferred the case to the Mun-sif-Magistrate for trial of the accused persons.
38. The defence at the trial was that the accused persons were innocent and they had been falsely implicated in the case out of enmity. It was also their defence that the land on which the occurrence was alleged belonged to accused Majid Mia who had been in exclusive possession over the same. He stood recorded in the revisional survey records and had been in possession on payment of rent to the outgoing landlord and thereafter to the State of Bihar.
39. The trial Court however rejected the defence and convicted the accused persons and sentenced them under Section 379 of the Indian Penal Code to undergo rigorous imprisonment for two weeks and further convicted and sentenced them to undergo rigorous imprisonment for two weeks under Section 144 of the Penal Code. The sentences were directed to run concurrently.
40. On appeal the learned Assistant Sessions Judge of Muzaffarpur set aside the conviction and the sentence imposed on the appellants on the finding that the prosecution examined no reliable witness to prove the manner of occurrence.
41. Before I discuss the merits of this appeal, I may dispose of the objection raised on behalf of the respondents that the sole appellant having died the appeal has abated and no substitution can be allowed in place of the deceased complainant. I have earlier in Criminal Appeal No. 43 of 1966 dealt with this aspect of the matter in detail and the point raised is fully answered by the same which I need not repeat. The Criminal Procedure Code does not contain any provision for substitution of any one in place of a deceased party in an appeal. An admitted appeal against the order of acquittal presented to the High Court under Section 417 (3) of the Code however does not abate on the death of the appellant and it has to be disposed of in accordance with the provision of Section 423 of the Code.
42. It is not disputed that Survey Plot No. 160 which is said to be the land of occurrence was originally the Bakast of the then landlord Ram Pratap Singh (vide Ext. 5 Barwarda Patti). It is also (not ?) disputed that Ram Pratap Singh and the father of the complainant were full brothers but they were separate from each other. Ram Pratap Singh died issueless and his properties according to the prosecution came in possession of the father of the complainant. The plot in dispute measures 1.05 acres which is approximately equal to IB 3K 16D (vide Ext. 4 Rent Roll). According to the complainant he had grown the paddy crop on the land which is claimed by him as his Kast land. The defence of the accused persons however was that they took settlement of this plot of land from Ram Pratap Singh and have been in physical possession over this land on payment of rent to Ram Pratap Singh and thereafter to the State of Bihar and the crop harvested from the land was grown by them and the complainant filed the case with false allegations due to grudge and enmity.
43. The prosecution examined seven witnesses and an equal number of witnesses were examined by the defence in the case; besides, the defence produced five rent receipts (Ext. A to A/4) which according to the accused persons had been granted on behalf of the ex-landlord Ram Pratap Singh. The defence also relied on a rent receipt which was granted on behalf of the State after vesting of the zamindari. The receipt was granted by a Panchayat Sevak. The defence also relied on a Parcha (Ext. F) which shows that accused Abdul Majid stands recorded in respect of Survey Plot No. 160 in the records of the subsequent survey operations. The prosecution primarily relied on Ext. 3 which is a copy of the order under Section 103-A of the B. T. Act passed on 25-2-1964 that is, more than two months after the occurrence. We have been taken through the evidence of the parties both oral and documentary as also through the judgments of the two Courts below by the learned counsel of the parties and I must say at once that the lower appellate Court was fully justified in setting aside the conviction of the appellant under Sections 379 and 144 of the Penal Code, in view of the fact that the complainant miserably failed to prove his possession over the disputed Plot No. 160 or the fact that it was he who had grown the harvested crop of the land for which the complaint was lodged by him. Although, as many as seven witnesses were examined on behalf of the complainant including himself, none belongs to village Shahjahanpur Bhatwalia. As against this, the accused persons examined at least three witnesses belonging to this village Bhatwalia where the disputed land is situate, in support of the fact of the possession of Abdul Majid over the disputed Survey Plot No. 160 at the relevant time. D. W. 2 Jagru Rai has his own land at Bhatwalia at a distance of 4 or 5 bighas from the disputed plot. He is also a resident of the same village. D. W. 3 Chaturi Rai is also a resident of the same village Bhatwa-ha. He happens to be the chowkidar of this village and he is definite that the complainant Amar Singh was never in possession of the land. D. W. 7 Ganaur Ram is also man of Bhatwalia and could state the boundary of the disputed land and he too supported the possession of accused Abdul Majid over this land since long time. I agree with the Court of appeal below that the evidence of D. Ws. 2, 3 and 7 are consistent and there is nothing in their evidence to discredit their testimony. They are competent witnesses and their evidence together with the rent receipts Ext. A series satisfactorily support the defence; the genuineness of these receipts cannot be doubted particularly because the counterfoils of these rent receipts which are supposed to be with the complainant after he came in possession over the properties of his deceased brother Ram Pratap Singh were never produced to prove the alleged fabricated nature of Ext. A series or the fact that Ram Prasad Lal father of D. W. 1 Jamuna Pd. who granted the receipts on behalf of the landlord was never a Patwari of Ram Pratap Singh. The lower appellate court has examined the rent receipts carefully and has recorded cogent reason in placing reliance on them. The learned Judge was also correct to observe that Ext. 3 is the order itself under Section 103-A of the B. T. Act being dated 25-2-1964 which is a date more than two months after the occurrence of this case can be of little evidentiary value. It appears that in the Parcha (Ext. F) Abdul Majid was recorded in respect of tke Survey Plot No. 160. Complainant Amar Singh filed an objection against this Parcha entry and the name of Abdul Majid was ordered to be removed from the Survey plot and in his place complainant Amar Singh was recorded. These (Exts. 3 and F) cannot be looked into for the desired purpose and I am also inclined to reserve my comment with respect to Ext. B which is a receipt granted by Panchayat Sevak to Abdul Majid for the year 1963-64 after the vesting of the State as these documents can be better considered in the civil suit that may be instituted in future by the parties. From the other documents Exts. J, H and I which are certified copies of order sheets of previous dispute between the parties, it is evident that accused Abdul Majid has been on inimical terms with the complainant since some time past. The past proceeding relates to the year 1946 and it is not improbable that the allegations in the petition of complaint were made with some ulterior motive. I do not propose to go into further details as I am satisfied that the evidence on behalf of the accused in the case do make on an acceptable defence and the evidence adduced on behalf of the complainant was unsatisfactory and did not prove either possession of the complainant over the Survey Plot No. 160 at the relevant time or the fact that the harvested crop had actually been grown by the complainant. In a case of this nature where the parties dispute their respective title over the land and where the accused persons have an acceptable case of possession in their favour, no conviction under Section 379 or 144 of the Penal Code on the allegation made, can be based. The lower appellate Court has in a satisfactory manner discussed the evidence and has come to correct finding in the appeal and they do not call for any interference. There is absolutely no merit in this appeal.
44. In the result Criminal Appeal No. 43 of 1966 succeeds as indicated above and Criminal Appeal No. 37 of 1966 fails and it is dismissed.
K.B.N. Singh, J.
45. I agree.