S.J. Deshpande, J.
1. This criminal revision application is filed by original accused Nos. 5 and 6 challenging the appellate order, dated 7th September, 1981 of the learned Additional Sessions Judge, Bombay in Criminal Appeal No. 247 of 1979, by which the learned Appellate Judge confirmed the conviction and sentence passed against the petitioners for the offence under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 and section 63 of the Copyright Act, 1957. These convictions were recorded by the learned Magistrate on 26th March, 1979. The first petitioner was sentenced to suffer S.I. till rising of the Court and to pay a fine of Rs. 300/- in default to suffer S.I. for one month for an offence punishable under section 78 of the Trade and Merchandise Marks Act. The first petitioner was also sentenced to pay a fine of Rs. 100/- in default to suffer S.I. for 15 days for an offence punishable under section 63 of the Copyright Act. The second petitioner, who is original accused No. 6, was convicted for commission of offence under section 79 of the Trade and Merchandise Marks Act, and was sentenced to pay a fine of Rs. 300/- in default he was to suffer S.I. for one month.
2. Respondent No. 2 Kishanlal Rewatmal Agarwal is the original complainant in the present case. On 31st August, 1977 the complainant filed a complaint in the Court of Additional Chief Metropolitan Magistrate, Esplanade, Bombay which was numbered as Case No. 18/1&R;/1977 charging four accused made therein for the commission of offences under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958, section 63 of the Copyright Act, 1957 read with section 34 of the Indian Penal Code and sections 120, 120-B, 465, 471, 472, 473, 474, 475, 483, 482 and 486 of the Indian Penal Code. The present petitioners were not involved as accused in the said complaint. Accused No. 4 in that complaint was named as Kamal Hosiery Industries, and other unknown persons. The complaint was referred for investigating by the learned Magistrate. After receipt of the report of the Investigation Officer, it was disclosed that not only there were four accused mentioned in the complaint, but some other persons including the present petitioners and also others were also involved in the commission of offences charged in the complaint.
3. When this report was received, it appears that the names of the petitioners were added to another complaint which is on record, which I will refer afterwards along with accused Nos. 7 and 8.
4. Original accused No. 7 and 8 are acquitted by the Court. So we are not concerned with them. So far as original accused No. 4 is concerned it is only described as Kamal Hosiery Industries and accused No. 5 i.e. the first petitioner herein in this petition is the proprietor of this Kamal Hosiery Industries. Original accused No. 6 is the broker, although he is charged as being the seller of the articles which are infringed in this case.
5. The first complaint of 31st August, 1977 seems to have not been tried at all. From the record of the case it appears that this complaint is not tried at all. But it is not possible to say what really happened to the said complaint.
6. However, on 5th April, 1978 the second respondent-original complainant filed fresh complaint being Case No. 20/S of 1978 charging the petitioners along with other accused, with the commission of offence under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958, section 63 of the Copyright Act, and also the offences under the Indian Penal Code.
7. On this complaint, the learned Magistrate issued process and it appears that at some stage by a consent of the parties, the charges in respect of the offence under the Indian Penal Code were dropped and the trial was confined to the offences under section 78 and section 79 of the Trade and Merchandise Marks Act and section 63 of the Copyright Act. This order of consent is referred to by the learned Magistrate at the time of the trial. Charges were framed on 13th December, 1978 and the present petitioners were tried on the said charges.
8. The complainant examined himself and two other witnesses were examined by him. The petitioners pleaded not guilty to the charge. After hearing the parties, the learned Magistrate recorded the conviction against the petitioners. Against their conviction, both the petitioners preferred an appeal being Criminal Appeal No. 247 of 1979. However, the petitioners were unsuccessful.
9. The allegation in the complaint is that the petitioners have infringed the trade mark of the second respondent-complaint, inasmuch as they have been guilty of using the goods produced by the respondent No. 2 bearing label of H.H.M. both on the carton and socks. The petitioners have used similar mark on carton and socks and thus they have infringed the goods of the second respondent, and therefore, they are liable for the offences punishable under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958. Necessary articles are referred to by the courts below and after comparing them the courts have found that the mark used by the petitioners and mark which is owned by the second respondent are quite deceptively similar.
10. It is the case of the second respondent that he has already registered his mark and his articles are in market right from 1967. In answer to this, the petitioners pointed out that they have registered their mark under the Copyright Act. Their business is at Delhi and the goods are produced at Delhi, and therefore, they have denied the infringment.
11. The main controversy in this case is centered round the two complaints. The learned Advocate for the petitioners has made the following submissions.
In this case it is undisputed that the first complaint remained undecided. It appears from the record that it seems to have been only filed in the Court. The learned Sessions Judge himself has observed in his judgment in para 5 as under :---
'............. It appears that after the report was received either a fresh complaint was filed formally or the same complaint was assigned the number CC/190/S/77. The circumstances relating to that complaint are obscure. From Roznama it appears that on 2-11-1977 the learned Additional Chief Metropolitan Magistrate ordered process to issue under sections 78 and 79 of the Trade and Merchandise Marks Act, section 63 of the Copyright Act and section 420 I.P.C. Process was not issued for the remaining offences........'
12. Initial complaint, which was numbered Case No. 18/1&R; of 1977, was assigned the number CC/190/S/77 and what happened to this complaint remains obscure. From the record, it appears that it seems to have been only filed. I find from the record of the lower courts that there is an endorsement of the learned Magistrate on 5th April, 1978 relating to this complaint. It is to this effect:
'Fresh complaint in this case is filed today. Hence this case is filed.'
13. It appears that on 5th April, 1978 a fresh complaint, which I have described above, out of which the present criminal revision application arises, has been filed and it was also verified by the complaint. On this complaint a number was given as Criminal Case No. 20/S/78. It is this complainant on which the order of the learned Magistrate is found as under:
'Issue summons on accused Nos. 1 to 8'.
On the same day the summons were issued to accused Nos. 1 to 8. During the progress of this complaint, on 21st June, 1978, the complainant remained absent and the complaint came to be dismissed by the learned Magistrate.
14. On the same date i.e. on 21st June, 1978, it appears that the application was made by the Advocate for the complainant, by which the Advocate for the complainant requested that because of extreme conditions the complainant was not well and, therefore, he was unable to attend the Court and he may be exempted from appearance for today only. This application for exemption/revival states in para 4 that the Magistrate was requested not to restore the matter but to give date for appearance. This application seems to have been granted by the learned Magistrate on the same day and the complaint came to be restored.
15. There is another important endorsement in connection with the application, which was given for revival and that endorsement is as follows :
'On making an application by complainant, complaint restored. Accused Nos. 1, 2 and 3 dropped at the request of complainant. Rest of the accused served and present No. 4 exempted.
Adjourned to 26-7-78'.
It may be noted that the complaint No. 20/S of 1978 was filed originally against eight accused. By the said order dated 21st June, 1978, the learned Magistrate dropped original accused Nos. 1 to 3 and exempted accused No. 4 who was only named as the company. As a result of this order, in the present complaint the basis of the trial shows that original accused Nos. 5 to 8 are the only real accused. I may here point out that as far as original accused Nos. 7 and 8 are concerned, they are already acquitted. We are only concerned with original accused Nos. 5 and 6. In substance this complaint proceeded against the remaining accused. But as the original accused Nos. 7 and 8 are acquitted, we are concerned only with original accused Nos. 5 and 6, who are the petitioners in this case. This order of dropping original accused Nos. 1 to 3 is to be examined in the light of the submission made by the learned Advocate for the petitioners.
16. The complaint proceeded further and on 13th December, 1978 accusation which were levelled against accused, were explained to them and they pleaded not guilty to the charge. On that date it appears that the learned Magistrate on the strength of the consent of both the sides adopted summons procedure to the case and the procedure so adopted by the learned Magistrate was a procedure of summons case. The trial was conducted accordingly and after concluding of the trial on February 20, 1979 an application came to be made by the petitioners-accused praying that the whole trial is vitiated because the complaint came to be dismissed for default on June 21, 1978 and the restoration and revival of this complaint was without jurisdiction. It was contended by the learned Advocate for the petitioners that the dismissal of the complaint had an effect of an acquittal of the petitioners. So the petitioners could not be retried again. The effect of dismissal was two fold, firstly, it operated as an acquittal of the accused persons and secondly the Magistrate has no jurisdiction to recall the order of dismissal of the complaint. The learned Magistrate has dismissed this application by a speaking order saying that the order of dismissal of the complaint was passed prior to framing of the charge and it amounted to only a discharged and such order of discharge could be restored by the Magistrate. Therefore, relying on the judgment of this Court reported In re Vasudeo Narayan Phadnis and others, : AIR1950Bom10 , the learned Magistrate dismissed the application filed by the petitioners which is on record. After the dismissal of this application on 26th February, 1979, the learned Magistrate accordingly had tried the accused and delivered the judgment on 26th March, 1979. Against this judgment the petitioners filed an appeal and they were unsuccessful.
17. The learned Advocate for the petitioners Mr. Kumar Mehta, has contended that in view of the dismissal order passed by the learned Magistrate on this complaint, the trial and all proceedings leading to the conviction and sentence of the petitioners are quite illegal. He narrated three illegalities in this case. First of all he contended that the complaint once has been dismissed by the Magistrate, he has no jurisdiction to recall the same. Secondly, he contended that the list of witnesses was not accompanied by the complaint and, therefore, process could not be issued. Thirdly he complained that the learned Magistrate had no jurisdiction to drop the accused and the order of dropping the accused is unknown to procedure of the Criminal Procedure Code. Relying on these three circumstances, it was contended that the trial of the petitioners is vitiated and the conviction recorded against them is quite illegal.
18. The learned Advocate for the accused-respondent, Mr. V.P. Vashi, raised preliminary point saying that both these points have been discussed by the courts below and this Court will not be justified interferring with the findings in revision. I am afraid that this contention is not available for consideration in this case. The point whether trial is conducted in accordance with the provisions of the Code is not a point either as a fact or merely an appreciation of evidence. It is always open for the accused to show that the procedure adopted by the Court in the course of trial is prejudicial one or is vitiated on the ground of non-compliance of certain provisions. Therefore, the preliminary point that I should not examine this point is rejected.
19. Coming to the merits of the contentions, learned Advocate for the petitioners pointed out that the order of dismissal of complaint on 21st June, 1978 as finally terminated the case. It is a final order disposing of the case. It was contended by the learned Advocate for the petitioners that if such a final order is passed by the Magistrate, the Magistrate, cannot alter or amend it in view of the provisions of section 362 of the Code of Criminal Procedure. In his connection, it is desirable to note that the judgment of this Court reported In re Wasudeo Narayan Phadnis and others 1950 Cri LJ 213 is relied on by the learned Advocate for the complainant respondent No. 2. He also relied on another judgment delivered by my learned brother Mr. Justice Apte in Criminal Revision Application No. 289 of 1977. The learned Advocate for the respondent complainant referred to certain other authorities but I am not referring to those because they are not necessary for the decision of this case. Relying on the above judgments, the learned Advocate for the respondent-complaint referred to certain other authorities but I am not referring to those because they are not necessary for the decision of this case. Relying on the above judgments, the learned Advocate for the respondent-complainant contended that the order of 21st June, 1978 dismissing the complaint must be treated as an order of discharge. If is the treated as an order of discharge, the Magistrate would recall the same in view of the ratio of this decision. It was contended that if such discretion is not vested in the Magistrate then it would lead to hardship and inconveniences. Therefore, if the Magistrate who dismisses the complaint without going into the merits of the case merely on the ground of absence of the complainant is entitled to restore the order in view of the fact that the order passed by the learned Magistrate discharging the accused in such case cannot be said to be the judgment.
20. The Division Bench of this Court was dealing with the case of the complaint which was dismissed in similar circumstances and the revival of the said complaint was said to be quite proper. In this case the complainant appeared on the same day and requested the learned Magistrate to restore his order and, therefore, the learned Magistrate granted his request.
21. In my opinion, in the Bombay case the attention of their Lordship of the Bombay High Court was not invited to the provision of the Code of Criminal Procedure. The judgment of the Bombay High Court proceeds on the basis that the order passed under section 249 in the absence of the complainant without going into the merits is not the judgment and, therefore, it could be revised. The ratio of that decision will not be applicable to the present case which is governed by the amended Code of 1973. Therefore, that judgment is of no assistance to the complainant in this case. In the present case there is another defect which cannot be overlooked. This was a second complaint, because an earlier Complaint No. 18/1&R;/1977 filed on 31st August, 1977 must be pending in the eye of law. If it is not pending there is no material to show that what had happened to that complaint. In accordance with the endorsement it stood filed subsequently on 5th April, 1978. It only means that the present Complaint No. 20/S/1978 is either continuation of the previous complaint or a fresh complaint. From the record it appears that the learned Magistrate has himself advised to file such complaint and reliance was placed on practice which is followed by the Magistrate's Court. I am afraid that practice as prevailing is the courts of Magistrate must not only be disapproved but must be stopped henceforth in the interest of justice. It is impossible to rely on any such practice, even in cases of trade mark it would lead to a great uncertainly in the matter of trial of various persons. Criminal trial must be governed by the provisions of Code of Criminal Procedure. No procedure outside the Code of Criminal Procedure can be either invented or gathered in order to determine the guilt of the concerned persons. The learned Magistrate in this case has referred to the practice and this practice has been disapproved even by the learned Sessions Judge. If such practice is prevalent such as the filing of complaint after complaints it is difficult to fix the exact nature of such complaints, and therefore, the practice of registering the complaints and filing of complaint after complaints must at once be stopped.
22. Now coming to the merits of the contentions, in this case, the Magistrate dismissed the complaint on 21st June, 1978. The order of the Magistrate is :---
'Complainant absent. Complaint dismissed. Sd/-21-6-1978'.
This dismissal was set aside by the learned Magistrate immediately on application made on the same day. This application was given by the Advocate for the complaint which shows that only endorsement on that application is to the effect: 'Granted'. It does not give any reasons. On the same day the learned Magistrate passed the order which I have referred to above in para 15 and restored the complaint. The order dismissing the complaint finally disposed of the case. Once the final order is passed then section 249 or section 256 of the Code of Criminal Procedure will be of no consequence if the character of the order is to be decided in regard to finality of the proceedings. I think that the order passed by the learned Magistrate dismissing the complaint is a final order disposing of the case. In any event, once it is held that this final order disposing of the case has been made section 362 of the Code becomes operative. It is true that such an order of dismissal of the complainant could not have been passed by the Magistrate. The only order which he could pass under section 249 of the Code was an order of discharge. There is no provision to dismiss the complaint. But in this case the Magistrate has passed an order dismissing the complaint and his order was signed by him. Once the order is passed and signed by him it becomes a final order disposing of the case within the meaning of section 362 of the Code of Criminal Procedure. Therefore, the provisions of section 362 of the Code of Criminal Procedure are at once attracted. Kindly see provisions of section 362 of the Code:---
'362 : Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.'
The provisions of this section are quite clear and in view of the judgment of the Supreme Court which has been cited by the learned Advocate for the petitioners in support of his contention, I accept his contention, that the order restores the dismissal of the complaint is without jurisdiction.
23. The learned Advocate for the petitioners has invited my attention to the judgment of the Supreme Court reported in Bindeshwari Prasad v. Kali Singh, : 1978CriLJ187 . In this case in para 4 of the judgment, the Supreme Court has observed as follows :
'.........There is no provision in Criminal Procedure Code empowering a Magistrate to review or recall a judicial order passed by him. Inherent powers under section 561-A are only given to High Court and unlike section 161 Civil Procedure Code sub-ordinate courts have no inherent powers'
In this case the complaint was dismissed under section 203 of the Code of Criminal Procedure. There is a reference to the provisions of section 561-A of the Old Criminal Procedure Code, which is similar to section 362 of the New Criminal Procedure Code. In this case the Supreme Court has further observed as under :---
'.......It was suggested by Mr. Goburdhan that the application given by him for recalling the order of dismissal of the complainant of the complaint would amount to fresh complaint.'
However, this suggestion was repelled by the Supreme Court also. The effect of this judgment seems to be that any final order passed by the learned Magistrate disposing of the case cannot be reviewed or recalled by him. In this case, the order of the learned Magistrate dated 21st June, 1978 is an order finally disposing of the case as he dismissed the complaint. In view of this legal position the restoration of the complaint becomes illegal and all further proceedings in the complaint must be deemed to have been vitiated by this illegality.
24. The learned Judges of the courts below have examined this aspect relying on the provisions of sections 249 and 256 of the Code of Criminal Procedure. Whether the order of disposing of complaint is a discharge order or an acquittal order has no relevance if the provisions of section 362 of the Code are made applicable. As I am accepting the contention of the learned Advocate for the petitioner that the Magistrate had no jurisdiction to recall the order dismissing the complaint, it is not necessary to discuss and examine the argument based on the effect of the order of dismissal of the complaint, if that is so, it is to be treated as discharge or it should be treated as acquittal. As I have accepted the first submission made by the learned Advocate for the petitioners, the other two submissions made by the learned Advocate for the petitioners, the other two submissions made by the learned Advocate in regard to failure of the list accompanying the complaint and the order of dropping of the accused need not be considered by me. However, I find there is sufficient force in these two contentions also.
25. Under section 204(2) of the Code of Criminal Procedure there is a complete bar to issue summons or warrant. Sub-section (2) of section 204 of the Code says until the list of prosecution witnesses has been filed, there is a complete bar to issue summons or warrant against the accused persons. In this case although this point was not taken in the courts below and it would be too late to entertain this contention at this stage, the defect in issuing summons and warrant in the absence of list of the prosecution witnesses is quite vital. The provisions of sub-section (2) of section 204 of the Code are mandatory which indicate as follows :---
' 204(2) : No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.'
Failure of the complainant to file a list of prosecution witnesses can be relied on by the accused as an illegality committed by the learned Magistrate in the trial of the accused. On that count also the judgment of the learned Magistrate is incorrect and improper.
26. The learned Advocate for the complainant-respondent pointed out that the petitioners have not raised this point in the courts below and having consented to the trial and having suffered a trial, it would not be open for them to attach this part of the case. It is true that the petitioners have not specifically raised this point. However, the point does not require any factual examination. It is quite obvious and I have seen that the complaints which are filed are not accompanied by the list of prosecution witnesses. The petitioners were, therefore, justified in pointing out this vital defect in the procedure adopted by the learned Magistrate.
27. The third submission of the learned Advocate for the petitioners that the learned Magistrate passed and order of dropping of some of the accused which also results in severe prejudice to the accused, appears to be correct. The order passed by the learned Magistrate dropping some of the accused cannot be supported by any provisions of the Code. Therefore, this procedure adopted by the learned Magistrate is not correct. The defect of following this wrong procedure has resulted in prejudice to the present accused persons for the simple reason that one of the accused persons who was dropped is himself examined as prosecution witness No. 3 in this case. In my opinion, this course adopted by the learned Magistrate is unknown to the criminal procedure and, therefore, the grievance made by the learned Advocate for the petitioners that the trial contains vital defect is quite proper.
28. Now, turning to the merits of the case, in fact, on the said finding the conviction and sentences of the petitioners can be set aside, but the learned Advocate for the petitioners advanced arguments on merits of the case also. Therefore, I propose to deal with the merits of the case.
29. On the merits, the learned Advocate for the petitioners pointed out that there is no evidence on record to show that any customer was actually confused and in the absence of any such evidence that any ordinary customer is confused while purchasing articles in question, which are infinged, it is not possible to base the conviction.
30. Repelling this argument advanced by the learned Advocate for the accused, the learned Advocates for the respondent-complainant contended that under section 78 of the Trade and Merchandise Marks Act, it was for the accused-petitioners to show that they have acted without intent to defraud and the burden lay on the petitioners-accused and not on the complainant. It was contended for the respondent-complainant that it is sufficient for the complainant to come to the Court and show that he is the owner of a particular Trade Mark and if he shows similarly of the articles which are infringed and if he brings material before the Court showing that certain other persons are marketing or dealing with that of similar trade mark, they are liable under the Trade and Merchandise Marks Act, it was also contended that it was not necessary to examine any customer in order to show that the mark actually by the petitioners is similar and is likely to confuse the customer.
31. Next, it was contended by the learned Advocate for the respondent complainant that the evidence of the complainant is quite sufficient to prove the deceptive similarly of the marks in question. I am afraid that this contention is without any substance. In revisional jurisdiction this Court is competent to examine the correctness and improbability of the findings recorded by the courts below. In this case, the complaint has examined himself as a witness. Second witness is Police Officer who had made inquiries and third witness is one of the accused, who was dropped at the time of the trial in view of the order of the learned Magistrate passed on 21st June, 1978. It has come in the evidence of the Police Officer, who is examined as P.W. 2 that he recorded the statement of the complainant. He has said that one Kundan, who is P.W. 3 himself has given statement before him. This Kundan, who was involved in this case as accused No. 1, himself has given statement before the Police Officer. If the evidence of a co-accused is to be taken into consideration in this case it is to be taken into consideration in this case merely because, the accused Kundan is dropped by the complainant, it cannot be said that the evidence can be free from doubt. The procedure adopted by the complaint in this case in dropping accused Nos. 1 to 3 who were previously offenders and citing one of them as witness is certainly of extraordinary type. Therefore, the evidence of P.W. 3 suffers from this infirmity and assuming that if it is acceptable, in my opinion it cannot constitute a good evidence and independent evidence to convict the accused
32. As far as the evidence of the complainant is concerned, the learned Advocate for the petitioners contended that from the evidence of the complainant it is not possible to say that he was himself ever confused because of similar deceptive marks. What the complaint has stated in his evidence is to the effect that :
'On hearing that the goods bearing similar label aforesaid in the market, I personally went to D.B. Hosiery at Null Bazar. 1 purchased one dozen socks. I produce the bill Marked Exh. X. I am producing one empty box and one socks, marked Ex. E and Ex. 1'.
I may here mention that the mark of the respondent-complainant is 'HHM' and the mark used by the petitioners is 'KHI'. This is not similar to the one which the compliant wants that such similarity has resulted in confusion. In order to prove that the marks used and infringed by any person are similar, it is not sufficient only to say that they are only similar. It must be further proved that they are deceptively similar. The expression of deceptively similar is defined in section 2(1)(d) of the Trade and Merchandise Marks Act, which as follows :
'2(1)(d) : 'deceptively similar': A mark shall be deemed to be deceptively similar to another mark if it is nearly resembles that other mark as to be likely to deceive or cause confusion.'
Two factual things are essential, that it must lead to confusion and it must be likely to be capable of deceiving the customer or any person who wishes to purchase the product. In the whole evidence of the complainant, there is not even a whisper that he himself was confused or that he himself was likely to be confused or he actually was deceived. What he has deposed is that the marks are similar and the petitioners are marketing similar marks. This one aspect.
33. The learned Advocate for the complainant curiously relied on the complaint itself to support and supplement the evidence given by the complaint. I am afraid that the allegations made in the compliant including the verification do not amount to an evidence at all otherwise it would be sufficient for the complainant to come in the box only to tell that he has filed a complaint and complaint is correct. The complaint cannot constitute any evidence for the simple reason that there is no opportunity for the other side to cross-examine with regard to the allegations in the compliant. I am unable to rely on the complaint to supplement the evidence of the complainant who deposed in the box in this case.
34. In this matter, it is undisputed that no customer was examined by the complainant to show that he is likely to be deceived or some confusions likely to be caused while purchasing the infringed articles. It is not necessary that in every case the customer should be examined. Examination of the customer in such cases is a direct evidence to prove the alleged deceptive similarity. The Privy Council had occasion to deal with this aspect. In Viscount Dunedin v. Goffrede Alessandre Chertier A.I.R. 1931 PC 15, the Privy Council was dealing with the case of trade mark on civil side. In the said case in an action of trade mark, the similar dispute had arisen and the Privy Council has observed as follows :---
'In order to justify the Court at a plaintiff's instance from using its own name in all or any of its business transactions, it is essential for that plaintiff to establish by proper evidence two facts. He must prove that the words in the name of the firms are so alike that the latter will be taken as the same as or equivalent to the former. He must further prove that his firm name has acquired a secondary meaning, i.e., that the word, when applied to goods means that the goods are the goods of the plaintiff and of no one else.'
In the said case, the Privy Council has further remarked that :
'No one was called to say that he had been deceived or that he would be deceived by the words 'Chertier and Co.' into thinking that he was dealing with, or would be dealing with, the plaintiff's mark. The oral evidence in the action against Tortel proves nothing beyond the possibility of occasional mis-deliveries caused either by Post Officer blunders or by the carelessness of customers. It falls a very long distance short of establishing inevitable deception by reason of the defendants continuing the use of their firm name.'
These observations of Privy Council are, no doubt, made in a civil case, but they are important in this case as guidance to show that in order to prove that some deception is likely to because or some confusion is likely to be caused some evidence of a customer is necessary. No such customer was called. It appears that there is no sufficient evidence at all to come to the finding that the alleged user of the mark by the petitioners causes infringement of the trade mark of which the respondent-compliant claimed to be the owner.
35. The learned Advocate for the complainant has pressed before me that in the revisional jurisdiction this Court is not justified in reversing the findings of facts arrived at by the courts below. For the reasons, which I have shown, if the findings are vitiated by illegalities and if they are not based on the evidence at all, revisional Court is competent to examine the said findings and, therefore, I have carefully considered the evidence and come to the finding that the petitioners cannot be held guilty of the offences with which they were charged.
36. In the result, rule is made absolute. The conviction and sentence recorded by the courts below is set aside and the petitioners are acquitted of the offences with which they were charged.
Fine, if paid, be refunded to them.