1. The appellant has been convicted of an offence under Section 486, I.P.C., and sentenced to pay a fine of Rs. 500. The charge against the accused was that he had in his possession for sale or purposes of trade certain tins of corn-flour bearing a trade-mark or property mark which was a counterfeit of the mark of Messrs. C. & B. Morton Ltd. Of the marks forming the subject matter of the charge only one described as 'Matrons' has been held by the learned Chief Presidency Magistrate to be a counterfeit under the section, but although this is so, it is nevertheless relevant in the present case to observe that at the search which resulted in the prosecution certain other brands of this commodity were found in the accused's possession in which he also traded, bearing different labels, namely 'Nortons' 'Motor' 'Leton's' and 'Newtons.' 'Nortons' has been the subject of injunction proceedings in the High Court and as the Magistrate notes is a closer counterfeit than the others. The conviction, as already stated, is only in regard to 'Matrons.' We have lad an opportunity of comparing the tins and labels for ourselves. As the learned Magistrate observes, no one could possibly mistake them if he were in the least on the alert, and knew the original at all well. It is equally, clear that the purchaser (if literate) would not be deceived if he had the two tins side by side. But that is not the proper test; it must be considered from the point of view of the ordinary un wary purchaser. There are no doubt, as has been pointed out to us, a large number of differences, chiefly in deail; among these may be mentioned the fact that the offending label states that the goods are 'made in Calcutta' whereas the complainant's tins are embossed at the foot 'Manufactured in Eagland :' other considerable differences may be noted in the colour, or rather in the shade of colour used, and the price at which the articles were sold, Rs. 13-4-0 per (sic) as opposed to Rs. 7-8-0 per ft. The resemblances in the get-up are also fairly numerous, the chief ones being the name G. & I. Mations as against C. & B. Mortons, the shape and size of tin, the 'Eagle' or 'bird' brand in a white oval forming a prominent part of the label design, and the general similarity of get up in the mixture of red and green employed on the label. We are satisfied that upon the whole there is ground to support the finding of the learned Magistrate, that the resemblance is such that a person might be deceived thereby, and the presumption is that the accused intended thereby to practice deception or know it to be likely that deception would thereby be practised. This presumption under Section 28, I.P.C., the accused contends, is rebutted by the fact that he purchased the rights in the offending label and design with dies, etc., at a receiver's sale in 1924, and he relies on that to show that he 'acted innocently' under Section 486(e), I.P.C. This may help him as far as it goes, but the ' other circumstances in the case, and particularly the possession of 'Nortons,' would rather go to show that the accused is concerned to see how near the line he can go in trading on the reputation of another manufacturer. A further point wag taken that Section 15, Merchandise Marks Act, was a bar to the prosecution as having bean commenced more than three years after the commission of the offence. This however is of no substance : that part of this section is designed to prevent stale claims from becoming the subject-matter of criminal prosecution, and cannot apply to a case such as this where the offence is a continuing one.
2. The appeal is accordingly dismissed and the conviction and sentence upheld.