L.S. Mehta, J.
1. The prosecution story in brief is that a first-information report was lodged by Rameshwar Reddy, P. W. 6, with the police station. Bhilwara on December 31, 1963, stating therein that accused Bhanwar Lal had sold spurious 'Biris' with counterfeit 'zhillis' (wrappers) and labels of bull-dog of M/s. Pyar Chand Keshri Mai Porwal of Kamptee by misrepresenting them to be genuine. The bulldog label was a registered trade mark of the above firm, bearing registration No. 131148 and 'zhillis'(tissue papers) with bull-dog and Keshri figure of a particular design, wherein registered trade mark bearing No. 160381 was also inserted. The firm enjoyed good reputation for its 'Biris' in the area. The accused, in order to take advantage of the good will of the firm, manufactured and sold spurious goods with counterfeit trade-mark by copying the said mark of the firm and thus committed commercial piracy and cheated the general public by selling spurious goods under counterfeit labels and 'zhillis'. On receipt of the above report the police registered a case and took over investigation. In the course of investigation accused Bhanwar Lai's shop was searched on December 31. 1963. 210 packets of 'Birds' with counterfeit labels and 'zhillis' were recovered. The same day accused Bhanwar Lai's house was also serahed. Its key was supplied by the accused. In the course of search a large quantity of labels and 'zhilis' were recovered. 11 Kgs. of finished and unfinished bundles with or without counterfeit 'zhillis' or labels. 13 Kgs of counterfeit 'zhillis' (full-size tissue papers), 1 Kg. and 400 grams, of cut pieces of counterfeit 'zhillis' and 3 Kgs. and 150 grms. of counterfeit bull-dog labels were recovered from the house of the accused. All these goods were duly sealed. Thereafter samples were taken out of them in the presence of Mr. M. K. Sikhdar, Magistrate Under training Bhilwara P. W. 9. Thereafter the goods were reseated 'Zhillis' were sent to P. W. 7 Khurshed Sorabji and label to P. W. 8 Desh Raj Graver. On receipt of the reports from the above 2 experts and after necessary investigation, the police put up a challan against accused Bhanwar Lai in the court of Munsiff-Magistrate, Bhilwara, under Section 420. IPC and Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958. Learned Munsiff-Magistrate examined 15 witnesses. He also examined the accused under Sec. tually the trial court, by Its judgment, dated September 1. 1970, acquitted accused Bhanwar Lal.
2. Dissatisfied by the above verdict, the present appeal has been taken by the State Government,
3. The contention of learned Counsel for the appellant is that the trial court went wrong in holding that the goods recovered from the shop and the house of Bhanwar Lai were not duly sealed and that in the recovery memo pertaining to the house of Bhanwar Lai (Ex. P. 11) the words 'have been duly sealed' have been inadvertently omitted. All the witnesses have deposed in .their oral testimony before the trial court that the goods were duly seized and sealed. The witnesses have also identified the goods before the trial court. learned Counsel then submitted that the Magistrate Under training, Mr. M, K. Sikhdar, has deposed that all the goods produced before him for the purpose of taking out samples therefrom were found by him duly sealed and bearing chits with the signatures of the 'Motbirs'. learned Counsel then drew the attention of the court to the statement of Ghanshyam Lai, P. W. 14, who has stated that he took the goods in a sealed condition to the experts. The two experts Khurshed Sorabji, P. W. 7 and Desh Raj Grover. P. W. 8 have deposed that they received the samples in a sealed condition. There may be discrepancy in the statement of P. W 8 Desh Raj Grover, who has stated that 'the sample packet of the labels, which he had received, contained the seal of the Superintendent of Police, Bhilwara. But such a discrepancy, according to learned Counsel, is due to lapse of memory. learned Counsel then submitted that all the goods have been produced before the court and in a matter like this it is for the court to examine the goods and reach the conclusion whether or not the article are spurious. In so far as the articles recovered from the shop of the accused are concerned, it is mentioned in the search memo Ex. P. 9 that they were duly sealed. Balwant Singh. Additional Superintendent of Police, Bhilwara, P. W. 15, Rameshwar Reddy P. W 6 Ghanshyam Lai p, W. 9. and Nizamuddin P. W. 13 have stated that the goods were duly sealed and Ghanshyam Lai has said that he took the sealed articles to the experts. learned Counsel then urged that when the articles were duly sealed, a presumption should be raised in favour of the prosecution that they reached the experts in a sealed condition and that the seals were not tampered with earlier. learned Counsel then urged that the counterfeiting process went on on a massive scale and that lapse of time should not stand in the way of conviction of the ac- cused. According to him the offence committed by the accused is a commercial piracy and. therefore, he does not deserve any leniency. In the end. counsel said that the accused should be convicted and adequately sentenced for offences under Section 420. I. P. C, read with Sections 78 and 79 of the Trade and Merchandise Marks Act. 1958. Mr. Than Chand Mehta appearing on behalf of the accused-respondent supported the judgment of the court below.
4. In this case the most important question which merits consideration is whether the prosecution has succeeded in proving that the goods, recovered from the shop and the house of accused were not genuine but they were spurious
5. In State of Bombay v. G. M. & Co, : AIR1951Bom45 cited by the counsel for the appellant, the accused were the manufacturers of certain toilet goods known as 'Anne French cleansing milk'. The product was sold in bottles which bore a label with the inscription 'Anne cleansing Milk ....4 old Bond Street, London W-l'. With each bottle there was enclosed a brochure which contained the following statement:-
Anne French Cleansing Milk' price 3 Section 6 Section 6 bottle can be obtained from chemists. Stores or direct from Anne French 4. Old Bond Street, London W. 1.
The accused admitted that the goods were manufactured by them in their factory at Bombay, The accused were prosecuted for the offences under Sections 6 and 7 Merchandise Marks Act and under Sections 482, 486 and 487. Penal Code. It was held by a Division Bench of the Bombay High Court that the trade description as contained in the label and the brochure together with the quotation of prices in English currency purported to indicate to the public that the goods were in fact manufactured in England and therefore it fell within the definition of False Trade Description as contained in Section 2(3), Merchandise Marks Act. The accused were, therefore, guilty under Sections 6 and 7 of the Merchandise Marks Act in the absence of any evidence to show that they had acted innocently or without any intent on their part to defraud the public. They were also found guilty under Sections 482, 486 and 487, Penal Code, In the Bombay case, (supra) the accused clearly admitted that the goods were manufactured by them in their factory at Bombay. There is no such admission in the present case.
learned Counsel then referred to Abdul Sattar v. Badrinarayan : AIR1962Bom29 . In that case the accused started using the same 'Tikli' and also a label on the bundles of the 'Bins' similar to that used by the complainant and passed off same kind of goods under a counterfeit trade mark. Under the circumstance the Bombay High Court held that the accused were guilty for the offences under Sections 482. 483, 485, 486 and 488/Section 34, Penal Code read with Sections 6 and 7 of the Indian Merchandise Marks Act and imposed a composite fine of Rs. 500/-. learned Counsel also cited some other authorities, which need not be referred to here. Suffice it to say that in all these authorities it stood proved that the goods recovered from the accused were spurious.
6. A counterfeit trade mark is one by means of which resemblance to a genuine article is intended to deceive or to lead a purchaser to imagine that the counterfeit is in reality the genuine article. Therefore, if a trade mark of a Company is put on an article belonging to or manufactured by that Company, then the trade mark is not counterfeit. An article does not cease to be manufacture of a particular Company merely because it has become old or the trade mark on it has faded. Thus, if a Hercules bicycle is repainted, including its trade mark, it cannot be said that the trade mark is counterfeit. Similarly, if a trade mark label on a bottle is torn off and another is fixed, it cannot be suggested that the trade mark is counterfeit. The article being genuine, there can be no intention to deceive1 See Dna Nath v. State. : AIR1963All133 . The principle underlying in the issue under discussion is that one cannot sell goods of others in a deceitful manner. But if one sells the genuine goods of a particular Company and it does not cause any loss to the manufacturer, it cannot be held that spurious articles have been sold.
7. In the present case the plea of the accused is that the packets recovered from his shop contained genuine goods. P. W. 10 Nathi Lai, who investigated the case, has said in his statement: 'The leaves of 'Bins' and tobacco were not sent for examination anywhere.' There is no other evidence on the record to show that the goods recovered from the shop or the house of the accused were not the goods of the complainant Company and that these goods were manufactured by the accused. The most important witness to prove this aspect of the case would have been the proprietor of the firm Pyarchand Keshri Mai. He was the best person to come forward and say that the goods, including the wrappers and the labels, were not his products. In the absence of reliable evidence on the record it is difficult to hold is that the articles recovered were not genuine and that they were spurious having been manufactured by the accused.
8. I now pass on to the presumption under illustration (e) to Section 114, Evidence Act. Illustration (e) provides:
The Court may presume that judicial and official acts have been regularly performed;
The presumption under illustration (e) is a discretionary one. The Court concerned may or may not raise such a presumption. When a statutory authority makes an order, a presumption can be raised that it had followed the prescribed procedure. There is a presumption of regularity in respect of judicial and official acts and it is for the party who challenges such regularity to plead and prove his case. The illustration does not say that, it may be presumed that any particular judicial or official act has been performed. The prosecution shall have to prove that an official act was done. When such an act has been performed and there is no other evidence on the record, it may be presumed that that particular judicial or official act was done regularly. In other words, before any such presumption can arise, it must be shown that the statutory act was duly performed. The illustration thus permits a presumption to be drawn in the matters of procedure. This provision does not permit a presumption to be drawn where the question does not relate to the manner of doing an official or judicial act but cuts to the root of validity of the act.
learned Counsel for trie appellant cited K. K. Pookunju v. K, K. Rama-Krishna Fillai, 1969 Cri App Rule 15 (SC). In that case the Public Analyst under Rule 7 of the Prevention of Food Adulteration Rules was required to compare the seal on the container and the outer cover with the specimen impression received separately, on receipt of the package containing the sample for analysis. The High Court considered that the Public Analyst acted in accordance with the rules and he must have compared the specimen impression received by him with the seal on the container. In that case a copy of the memorandum and the specimen impression of the seal were proved to have been sent to the Public Analyst separately by post. The Public Analyst did not mention in his report that he compared the specimen impression on the seal with the seal on the packet of the sample. It was observed by their Lordships of the Supreme Court that it should be presumed that the Public Analyst acted in accordance with the rules and he must have compared the specimen impression received by him with the seal on the container. Thus, the above authority supports the view that illustration (e) to Section 114. Evidence Act. deals with the procedure. learned Counsel then relied upon I, T. Commissioner v. Suraj Lai : 81ITR495(MP) , K. Rajaram v, Koranne : AIR1968Bom247 ; Swaroop Ram v. State and Municipal Corporation of Delhi v, Om Prakash 1970 Cri LJ 1047 (Delhi). In all these authorities, it has been laid down that presumption can arise in the matter of procedure and if there is non-mention in respect of following the proper procedure according to the rules, such non-mention is not of vital importance.
9. In the present case, in the absence of any specific evidence to the effect that the samples reached the experts in their original condition and that they were not tampered with during the process of transmission, it would be difficult for the court to accept the contention of learned Counsel for the appellant that the court should presume that the seals on the samples remained intact till they reached the experts. In this connection a reference is made to Ukha Kolhe v. State of Maharashtra AIR 1963 SC 1531 : ((1963) 2 Cri LJ 418). In that case their Lordships of the Supreme Court observed:
Evidence regarding the dealing with the phial since it was sealed and it was submitted for examination of the Chemical Examiner may appear to be formal; but it has still to be led in a criminal case to discharge the burden which lay upon the prosecution.
This authority has been followed by a Division Bench of this Court in Ratan Lai v. The State 1966 Raj LW 451. In the State v. Motia ILR fl953) 3 Raj 655, it has been observed by his Lordship Wanchoo. C. J.:
Whenever it is desired by the prosecution that certain articles, which have been recovered from accused persons are to be identified, or are to be sent to the Chemical Examiner for analysis, it is necessary that the officer recovering the articles should immediately take steps to seal them, and evidence should be produced by the prosecution that from the time the articles came into possession of the police to the time they were sent for identification before a Magistrate or for examination to the Chemical Examiner the seals remained intact. In the absence of such precautions it would always be open to the accused to say that the police later put human blood on the articles in order to implicate the accused, and the same reliance cannot be placed on the discovery of blood-stains on the articles recovered as would be done if necessary precautions are taken. Further, it is also necessary for the prosecution to prove by evidence that the articles sent to the Chemical Examiner for analysis, were the very articles which were recovered from the accused.
In Mst. Javitri Devi alias Shanti v. State ILR (1956) 6 Raj 1027. this Court held':
Where the vomit was sent in a sealed bottle to the Chemical Examiner with a messenger but this messenger was not produced in evidence, and the Chemical Examiner's report showed that he received a sealed bottle, but not that the seal or any other mark on the bottle showed that it had been sent by the Doctor, who had sent it, there was scope for argument that the bottle could be tampered with.
It will also be useful to quote a passage from The State v. Banwari ILR 1959 9 Raj 107 (119), In that case a Division Bench of this Court laid down;
There must be further satisfactory evidence on the record to show that these seals remained intact until the articles were sent to the ballistic expert and that the recovered articles were not tampered with while in the custody of the police. Finally, there must be evidence from the side of the ballistic expert to show that the articles sent to him had not been tampered with while they were in 'his custody.
The same view has been taken by this Court in State of Rajasthan v. Ratania 1969 WLN Part 2 P. 28 (Raj). Thus the evidence that the sample reached the hands of the experts with the seals intact cannot be dispensed with and in the absence of such an evidence it is open to the accused to take a plea that the result of examination of the expert cannot he read against him to fasten the guilt on him
10. Here the sealing on the seized articles has not been satisfactorily proved, (After discussing the evidence the judgment proceeded:)
The above facts throw a considerable doubt in the fairness of the investigation of the case and in the aforesaid circumstances it would be hazardous to raise a presumption under illustration (e) to Section 114. Evidence Act, that the goods alleged to have been seized from the accused were duly sealed, that the seals were not tampered with till they reached the hands of the experts. Even if a presumption of the kind is raised, the circumstances, indicated above, rebut it effectively.
11. The next point stressed by learned Counsel for the appellant is that the seized articles have been identified by witnesses before the trial court. It is now to be seen how far this assertion is correct. (After discussing the evidence the judgment proceeded).
12. The above evidence demonstrates that the so-called identification of the articles before the court is not convincing or dependable. Rather it is farcical and thoughtless identification.
13. learned Counsel for the appellant then submitted that the court can itself compare the articles recovered with those which are genuine and reach the conclusion that the articles so recovered were counterfeit and spurious. In support of this proposition he has mainly relied upon State of U. P. v. H. M. Ismail : 1960CriLJ1017 . In that case their Lordships of the Supreme Court looked at the wrappers and the labels and the articles recovered from the shops of the accused and compared them with the wrappers and labels of the genuine articles and agreed with the opinion of the Magistrate and the Sessions Judge that the resemblance was such that a person could be deceived by it learned Counsel also cited Parle Products v. J. P. & Co. Mysore. : 3SCR289 . wherein it has been laid down:
It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. It is of no use to note on how many points there is similarity and in how many others there is absence of it.
The above authorities indicate that a court can compare the samples in order to appreciate the evidence on the record, That does not mean that the court should perform the functions of a witness as well as of a Judge. In Hari Das Mundhra v. The State, ILR (1962) 1 All 451. the Allahabad High Court held that a Court can also under Section 73 of the Evidence Act compare the signatures itself but should not base its -judgment about handwriting only on the basis of comparison by itself, with greatest respect. I agree with the proposition laid down by the Allahabad High Court in the above case.
14. Coming now to the question of evidence led by the prosecution, it may be stated that P. W. 7 Khurshed Sorabji is a highly interested witness. 20% of his business in the firm Surendra Fine Arts Litho Works, Nagpur depends upon the complainant's party Pyar Chand Keshri Mai of Kamptee, He also admits that as a witness he appeared in the court only in this case and that he did not pass any examination in Litho works. He is only a matriculate. He did not compare the articles with the genuine articles. He says:
The police did not bring any original package with which the other packages were to be checked.
From the evidence of this witness it appears that he compared the samples with the blocks but the blocks are only a secondary evidence. The possibility of the seized wrappers and labels having been printed in some other concern with some minute difference also cannot be ruled out. At the end of his cross-examination this witness says:
I have not brought the original design.
How can the comparison be possible by the court unless the original design is produced by the witness?
15. P. W. 8 Desh Raj Grover (expert) is also a Manager of a Company known as Shiv Raj Fine Arts Litho Works, Nagpur. That press prints labels for complainant. This witness, therefore, is also an interested party. Besides, he is not an expert. He admits in the cross-examination:
I have not passed any examination relating to litho work.' The witness says that no genuine labels had been sent to him along with the seized packets for comparison. He also says that he did not send with his examination report the labels with which he had compared the seized labels. From this evidence it is clear that Desh Raj Grover is not an expert, nor does he show that he compared the seized labels with the standard samples. P, W, 6 Rameshwar Reddy is also admittedly not an expert. He says in the cross-examination:
I wanted to ascertain from 2 or .4 persons and to be sure whether the articles were counterfeit.
That shows that he is not an expert. He admits on the court question;
My duties are not related to printing department.
Besides the above testimony of the 3 witnesses, there is no other evidence on the record to show that the articles seized from the accused were really counterfeit. Unless standard articles had been sent to the experts, comparison of the seized articles was not possible: see Sarojini Dassi v. Hari Das AIR 1922 Cal 12 and Gaffar Buksh v. Emperor AIR 1927 Pat 408 : (28 Cri LJ 411). When there is no evidence on the record that the articles seized from the accused were in fact spurious, it would be risky in the extreme to assign the duty to the court to function as a witness to compare the disputed articles with genuine ones and convict the accused.
16. I now switch over to the last' contention raised on behalf of the appellant in respect of the offence relating to Section 420, IPC It is alleged by the prosecution that P. W. 1 Ganesh went to the accused's shop at Bhilwara and he purchased 2 packets of 'Biris' from there. These two packets are alleged to be counterfeit. No police officer says that the packets bought by Ganesh from the accused's shop were duly seized and sealed P. W. 11 Station House Officer Avtar Singh states that no goods were produced by Rameshwar Reddy along with the first information report. The witness also does not prove the alleged recovery memo Ex. P, 1. That apart, the goods alleged to have been produced by Ganesh P. W. 1 were also not duly sealed, nor is there any mention in this respect in Ex. P. 1. Ganesh also does not identify the goods before the trial court. P. W. 1 Ganesh, P. W. 2 Shanker and P. W. 3 Rama, it appears, are hirelings of the complainant. They were taken to Mandal by the police. They had no business to go there. It is given in the statement of Ganesh that he went to accused Bhanwar Lai's shop at Bhilwara. The accused told him that the bundles which he was giving were genuine, bearing bull-dog labels of Kamptee and that they had the agency of the Kamptee firm, Normally no businessman would talk like this to a buyer. Cheating is defined in Section 415, IPC and is made punishable under Section 417. IPC Section 420, Penal Code deals with the certain specified classes of cheating. It deals with the cases of ceating whereby the deceived person is dishonestly induced;
1) to deliver any property to any person or;
2) to make, alter or destroy;
a) the whole or any part of a valuable security or;
b) anything which is signed or sealed and which is capable of being converted into a valuable security.
None of the above ingredients has been established by the prosecution in this case. Even the first information report filed by Mr. Reddy does not speak that there was any false representation. Such an omission is not a minor one but it is an omission of a very substantial nature which affects the truth of the evidence given before the court: see Yudhishtir v. The State of Madhya Pradesh 1971 Cri App R 247 : (1971 Cri LJ (N) 39 (SC)). Apart from this, the 'Biris' alleged to have been recovered from the possession of P. W. 1 Ganesh were not sent duly sealed to any expert for examination. It cannot, therefore, be said that they were not genuine. In that context the question of wrongful loss or wrongful gain does not arise. The trial court, therefore, was correct in holding that the offence under Section 420, I. P, C., has not been brought home to 'the accused.
17. It is true that this Court is empowered to consider the evidence on the record in an appeal under Section 417, Criminal Procedure Code and this power is as extensive as its powers in appeals against conviction. Nevertheless the Court has always to bear in mind the presumption of innocence of the accused. Where the lower court has not found the accused guilty and unless the conclusions reached by it are palpably wrong or based on an erroneous view of the law or that its decision is likely to result in grave injustice, this Court would be reluctant to interfere with its finding. Again, if two reasonable conclusions can be drawn on the basis of the evidence on the record, then the view in support of the acquittal of the accused has to be preferred. As has been observed by their Lordships of the Supreme Court in Khedu Mohton v. State of Bihar : 1971CriLJ20 , the fact that the High Court is inclined to take a different view of the evidence on the record is not sufficient to interfere with the order of acquittal,
18. Under Section 78 of the Trade and Merchandise Marks Act. 1958, the onus of proving that the accused has falsified or falsely applied a trade mark is upon the prosecution. The prosecution has to prove that the trade mark on the accused's goods is likely to deceive an average purchaser using average caution, though it is not necessary for the prosecution to prove that the accused has acted fraudulently. Similarly Section 79 of the Act casts the onus upon the prosecution to prove that the accused sold the goods to which a false trade mark or false trade description was applied. The charge framed against the accused reads that both the wrappers and the labels were fabricated and affixed on the 'Biris' and the 'Biris' were kept by the accused for the purpose of sale. There is no evidence on the record to show that his 'Biris' were manufactured by the accused and that these 'Biris' were not genuine. The first information report does not speak of labels and of the labels being counterfeit. It speaks of the 'Biris' being counterfeit. If the goods are genuine and wrappers or labels have been fixed thereupon, it would neither cause any wrongful loss or wrongful gain to any party. Unless the proprietor of the firm Pyar Chand Keshri Mai comes forward and says that seized labels and wrappers were not manufactured by them, it is difficult to say that the articles seized were not the goods of the complainant.
19. For the foregoing reasons, I am satisfied that the prosecution has failed to prove its case satisfactorily against the accused and that this appeal hardly warrants and interference in the judgment of acquittal. The appeal, therefore, fails and is hereby dismissed.