S. Barman, J.
1. This is an appeal against an order of acquittal, passed by the learned Magistrate 1st Class Sambalpur, in Criminal Case No. C. 1.44 of 1959, whereby the learned Magistrate had acquitted the accused respondents of a charge under Section 482/483/486 Indian Penal Code for counterfeiting the trade marks used by the firm of the complainant appellant on Biris manufacured by them in the circumstances hereinafter stated.
2. The appellant (hereinafter referred to as the complainant) is the manager of a firm known as Dr. S. Guha and Co., Desh Bandhu Biri 'Works' Sambalpur and carries on business on Bidi in packets of 25 and 500 each; the label on packets of 25 biris is the most distinctive and decorative for the purpose of identification of the origin of the goods; the said firm has been using the label since 1908 and as such their trade mark has been registered under the Trade Marks Act (Act VJ of 1940.
In April 1958, the complainant got information, that spurious Biris bearing false or counterfeit marks of Berlia and Company, Berlia Biri Works of the accused respondents were being offered for sala and sold, as and for the Biris of the complainant in the market of Sambalpur, Bolangir, Ghinchinda, Burla and elsewhere; the firm of the complainant purchased a few packets and found the, label used by the accused respondents and were satisfied that they were false and counterfeit of the trade mark of the complainant's firm and were being used to pass off as the Biris of the complainant's firm; thereafter, after due notice, the complainant filed a complaint petition before the Sub-divisional Magistrate, Sambalpur charging the accused respondents under sections 482/483/485/480 Indian. Penal Code. The learned Magistrate acquitted the accused respondents of the said charges for alleged counterfeiting of trade marks as aforesaid. Hence this appeal filed by the complainant against the said order of acquittal.
3. The only point,--urged by Mr. B.M. Patnaik, learned counsel for the complainant (appellant herein), is that the learned Magistrate came to a wrong conclusion, on an incorrect view of the law on the subject, in his finding that, although there were similarities and resemblance in the labels and also in the colour, size and the placing of the printings thereof,--the labels used by the accused respondents cannot, in any way, be said to be false or counterfeit trade marks of the labels used by the complainant's firm on similar packets.
4. The settled position, in law is that, where a manufacturer is selling his goods under a certain, trade mark, the question,---whether another manufacturer of such goods using similar mark is likely to deceive public that they are purchasing the goods so manufactured by the former,--is a question of fact to be decided on the evidence adduced; the vital element in such a case is the likelihood Or possibility of deception or confusion; this may depend on a number of matters as well as the question of similarity of the marks or of the get up; witnesses can be called to prove the circumstances and the place in which the articles are sold, the classes of persons who buy them, and whether they include persons who are illiterate or ignorant or the reverse, the manner in which the public are accustomed to ask for the articles, and any other matters which will assist the court to decide whether deception is probable; evidence of actual deception may be available and if available may be very valuable; there is no such person as an expert in human nature, and a witness cannot be called to say that it is likely that purchasers of the goods will be deceived; the test of comparison of the marks side by side is not a sound one, since a purchaser will seldom have the two marks actually before him when he makes his purchase; the marks with many differences may yet have an element of similarity which will cause deception, more especially if the goods are in practice asked for by a name which denotes the mark or the 'device on its Section 480 Indian Penal Code does not necessarily require that any intending purchasers should actually be deceived; it is sufficient, if the deception la question is reasonably calculated to cause it to be believed that the goods so marked have a connection with the course of trade of a person with whom they have not any such connection; if it is clear, from a simple look, that the get-up of the offending labels or wrappers is closely similar to the get up; of the complainant's goods, and in general appearance, labels and colour selection and other essential details the wrappers of the offending mark so closely resemble those of the complainant's mark, that they are likely to deceive an unwary purchaser who is acquainted with the trade mark and who trusts his memory, in such a case such use is an offence of counterfeiting trade mark punishable under Indian. Penal Code; the matter must be considered from the point of view of the ordinary unwary purchaser and the totality, of the impression gained on seeing the labels and wrappers in question when offered for sale; the test of comparison of the marks side by side is not always a sound one, since a purchaser will seldom have the two marks actually before him when he makes his purchase; marks with certain minor details or difference may yet have an element of similarity which will cause deception or confusion. (Thomas Bear and Sons (India) Ltd. v. Prayag Narain, AIR 1940 PC 86; Md. Mahboob v. Bibhuti Bhusan Gupta, AIR 1960 Cal 63; Haveli Ram v. State, AIR 1956 All 132).
5. Considering in the light of the settled legal position as stated above, the conclusion of the learned Magistrate, based even on his findings, is clearly wrong. In the present case, apart from likelihood or deception or confusion, the evidence of the prosecution witnesses is that there was actual deception. In this context, the evidence of P. W. 1 and P. W. 2 is directly on the point referring to instances of such actual deception as stated by them.
The line of approach of the learned Magistrate; as based on scrutiny of the similarities and differences, by reference to the details as discussed in his judgment--is clearly based on a wrong view of the law, to which, apparently, his attention was not drawn.
6. Mr. S.K. Misra, learned counsel for the accused respondents, however, relied on the position that in view of the fact that the M. Os--(materal objects) were ordered to be returned to the person who produced them before the Court, there is no material before this Court to come to any finding in the absence of the M. Os. and that the case should, accordingly, be remanded to the trial Magistrate to give a finding by reference to the M. Os. This argument has no substance, in view of the fact that in the notice given by the complainant's Advocate to the accused respondents (Ext 3) the labels and wrappers of the complainant as also of the accused respondents had been annexed and marked as annexures 'A' 'B', 'C' 'D'. The general set-up of the accused respondents' offending label and wrapper as decribed in Annexures C and D thereto is a colourable imitation, and are almost identical with the complainant's label and wrapper described in Annexures A and B thereto.
It is clear from the Annexure Ext. 3 which has been proved by P. W. 5 that the label annexure C is the accused respondents' offending imitation of the complainant's label Annexure A. So also wrapper Annexure D is the accused respondents' offending imitation of the complainant's wrapper Annexure B. The M. Os.--which had been returned as aforesaid,--are nothing but what are contained in Annexures A, B, C and D to Ext. 3, namely the labels and wrappers without the tobacco contents, namely, Biris or packets of Biris. That is, presumably why the learned Magistrate did not think it necessary to retain the M. Os. while the annexures to Ext. 3 are substantially the same as the M. Os. The very look, get-up, design, colour etc. of the offending label and wrapper compared with those of the complainant, clearly establish that there is likelihood of an unwary purchaser being deceived or getting confused. This by itself is sufficient for conviction of the accused respondents for counterfeiting of trade marks under the provisions of the Indian Penal Code. There is, therefore, no necessity for remanding the case to the learned trial Magistrate for reconsideration as pressed for on behalf of the accused respondents.
7. In this view of the case, the order of acquittal passed by the learned Magistrate is set aside. The accused respondents are convicted under sections 482/483/486 Indian Penal Code and sentenced to pay a fine of Rs. 500/-; in default of payment rigorous imprisonment for six months. The appeal is accordingly allowed.