Krishnaswami Reddy, J.
1. The appellant Hazarimal L. Shah was convicted under Section 79 of the Trade and Merchandise Marks Act 1958 and sentenced to pay a fine of Rs. 500, in default to undergo simple imprisonment for a period of three months, by the second Presidency Magistrate, Madras.
2. The prosecution case is briefly this : Philips India Ltd., a registered firm manufacturing and dealing in all varieties of Electrical goods under the distinctive trade mark Philips' is the complainant in this case. They are manufacturers of electrical lamps of 100 W, 60 W, 40 W and 25 W which earned a great reputation in the market. They have acquired exclusive right to use the trade mark. The complainant had information that some spun', ous and inferior quality bulbs under the trade mark 'Philips' were being sold in the shop of the appellant at No. 128.A Nainiappa Naicker St. Madras. P. W. 4, B. Venkappa Naick, a Research Investigator of the Madras School of Social Work who usually used to purchase Philips bulbs for lighting his house, went to the shop of the appellant in November 1964 and purchased four bulbs as per bill Ex. P. 4. He suspected the genuineness of the bulbs as he found some change in the bulbs. When he rubbed at the bottom of the bulba the trade mack came off. He made a complaint Ex. P. 4 to the Philips Co., and handed over the bulba purchased by him along with the bill Ex, P. l(a), issued by the appellant. P. W. 5, R. Govindao, an advocate also purchased bulbs from the shop of the appellant and they were found to be spurious.
He also made a complaint to the Philips India Ltd. P. W. 1 Seshari, Manager, Customers Products Department, Philips India Ltd., described the manner in which bulbs were packed and trade marks affixed. He stated that the bulbs were packed in card board cartons which bore emblems and word 'Philips' and also the picture of a bulb. He checked the bulba produced by P. Ws. 4 and 5 and found them to be spurious and the marks 'Philips' found there were not genuine. He found three eye lida in the spurious bulbs whereas there must be two eye lida in the genuine Philips bulbs. The trade mark on the spurious bulbs was easily erasable with the fingernail; but it was not easy in the case of trade mark on genuine bulbs. The filament in the genuine bulb will not protrude at either end whereas it protruded on the spurious bulbs. The eye lids in the genuine bulbs were neatly circled whereas in spurious bulbs they were irregular. P. W. 1 also came to know that the appellant was living in the house opposite to his shop and was affixing seals on spurious bulba to make them look like the complainant's bulbs. P. W. 1 further stated that the cartons used by the appellant were also deceptively similar to the genuine cartons, though the trade marks on the false cartons were not neat and clear as on the genuine cartons.
3. On an application by the complainant, a search warrant was issued by the Presidency Magistrate to search the shop and the house of the appellant and P. W. 8, the Sub-Inspector of Police, Elephant Gate Police Station, in pursuance of the warrant, searched the shop in the presence of P. W. 1 and one M. S. Krishnamurthi and recovered 141 bulbs of 60 W and 80 bulbs of 40 W with cartons, bearing the trade marks and emblems of Philips. He also recovered from the house of the appellant six bulbs (M. O. 6 series) without any markings of any trademark. These bulbs, on examination by P. W. 2, the Lighting Engineer in the firm of Philips India Ltd., were found to be spurious and that they were being sold under the trademark 'Philips'.
4. When examined under Section 842, Criminal P.C., the appellant stated that the bulbs produced by P. Ws. 4 and 5 were not Bold by him though the bills were his, that he was only a dealer who purchased bulba in lot cases in the market and Bold in retail ignorant at the distinction between genuine and spurious bulbs and that he purchased bulbs without any marks from (bulba ?) suppliers. He further stated that he did not notice the differences between genuine and spurious bulbs.
5. There is no dispute that the bulba which were seized from his shop bearing the tradename 'Philips' were spurious. But the defence of the appellant is that he used to purchase them in lot oases and that he had no occasion to note the differences between the genuine and spurious bulbs. It can be equally of no doubt that he sold the spurious bulba with false Philips trademark to P. Ws. 4 and 5 though the appellant would deny it. There is no reason for P. Ws. 4 and 5 who are respectable persona to say that they had purchased spurious bulbs from the appellant. It is significant to note that they have also produced the bills. There cannot be any doubt that the appellant was dealing in spurious bulba under the false trade marks Philips and some of the bulbs, without any mark.
6. The learned Counsel contends that he could not have known, in the circumstances that what he was selling were spurious and that the prosecution has not established be-yond reasonable doubt that the appellant was dealing in spurious bulbs knowing that they contained false trademarks. To appreciate the contention of the learned Counsel, it may be necessary to note the relevant section under which the appellant was convicted.
7. Section 79 of the Trade and Merchandise Marks Act 1958 runs as follows:
Any person who sells, or exposes for sale, or has in his possession for sale or for any purpose of trade or manufacture, any goods or things to which any false trademark or false trade description is applied or. which, being required under Section 117 to have applied to them an indication of the country or place in which they were made or produced, or the name and address of the manufacturer or the person for where the goods are manufactured, are without the indication so required, shall, unless he proves : (a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods ; and (b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things ; or (c) that otherwise he had acted innocently ; be punishable with imprisonment for a terra which may extend to two years, or with fine or with both....
8. There is a proviso to this clause which may not be necessary to be stated the purpose of this case.
9. As already pointed out, so far as the bulbs are concerned, there is no dispute that it contained a false trade marks. But the point to be determined is whether the appellant comes under any one of the Sub-clauses of Section 79, namely (1) did the appellant take reasonable precautions and had no reason to suspect the genuineness of the trade mark at the time of sale or exposure for sale in his shop (2) Whether he gave all the information readily and spontaneously on demand by the prosecutor, and (8) could it be said in the circumstances of the case, that the appellant acted innocently ?
10. I do not think from the facts of the case that it can be said that he had no reason to suspect the genuineness of the trade marks or that he acted innocently. He is a dealer in electrical goods in large quantities. When he purchased the bulbs from the other shops, it could not be said that be hid not taken care to check and verify whether the bulba purchased by him were used or unused, genuine or not genuine, broken or unbroken and like things similar and if he had taken such care, be must have detected the difference between genuine and spurious bulbs. I do not accept for a moment that he had no occasion or scope to verify and check those bulba. According to the appellant, he purchased them from unauthorised dealers. He should have taken more care when, especially he had purchased the bulbs from unauthorised dealers to find out whether he was purchasing genuine Philips bulbs. It cannot be said in those circumstances that the appellant acted innocently in selling or in having been in possession of spurious bulbs. The appellant of course examined defence witnesses on his side besides examining himself as D, W. 1. He admitted in cross-examination that he was able to see the difference between a Philips genuine bulb and a spurious bull).
11. D. W. 2, Ramaswami, Chief Salesman of the appellant, produced counter-foils of the bills issued to P. Ws. 4 and 5. D. W. 8 Sheth, proprietor of Geetha Trading Co., dealing in electrical goods stated that he also purchased Philips bulbs; but never used to verify and check regarding the genuineness of these bulba, D. W. 4 Lakahmi Dass B Modi, partner in Modi Electric Corporation would also say that he could not find out the difference between the genuine and spurious bulba and that he would simply purchase Philips bulbs if it carried the word ''Philips' on the bulbs. Their evidence is highly artificial as rightly pointed out by the lower court. In the result, I find that the appellant was in possession of the Philips bulbs with false trade mark, that be knew that he was in possession of spurious bulba and that he sold the same knowing that the bulba contained a false trade mark. There are no indications in the case that he acted innocently. The conviction by the lower court is correct and it is. therefore, confirmed. However, taking all the circumstances of the case into consideration, I reduce the sentence of fine to Rs. 100, in default to undergo simple imprisonment for one month. The excess fine (if the fine amount has been collected), will be refunded to the appellant.
12. The appeal is dismissed with the above modifications in the sentence.