Giridharilal Marwari vs Emperor

Mohamad Noor, J.—The petitioner Girdharilal Marwari, who is a partner of the firm of Shew Bhagwan Girdhari Lal, biri manufacturers of Jhalda in Manbhum, was convicted by a Magistrate of Ranchi u/s 482, I.P.C., and sentenced to pay a fine of Rs. 1,000 and in default to suffer six months'' rigorous imprisonment for using on the packets of biris manufactured in his firm a false trade mark being colourable imitation of the registered trade mark of the firms Maliram Mahabir Prasad and Bansidhar Anantram, also biri manufacturers at Jhalda and masters of the complainant. Out of the fine if realized Rs. 500 was awarded as compensation to the complainant u/s 545, Criminal P.C. His appEal has been summarily dismissed by the Judicial Commissioner of Chota Nagpur. It is not disputed that the petitioner used the trade mark in question, nor is it contended, if the label used by the petitioner is false, that he used it without any intention to defraud. In fact it has been established beyond doubt by the evidence of the manufacturers of the disputed label and the letters of the petitioner that the latter wanted that the label should be as much similar to the one used by the firms of the complainant''s masters as possible.

Only two points have been urged on behalf of the petitioner: (1) that there is no evidence that the petitioner used the label at Ranchi and therefore the Magistrate at Ranchi had no jurisdiction to try the case and (2) that the disputed label is not a colourable imitation of the label of the complainant''s masters. About the first point, it is true that there is no clear statement by any of the witnesses examined that the petitioner himself sold the packets of biris bearing the false trade mark at Ranchi, but there is clear evidence that the biris bearing that mark are stocked by shop-keepers at Ranchi and that they have been selling them there, and a reading of the evidence of the witnesses as a whole leaves no room for doubt that the petitioner did use the false trade mark at Ranchi. Hira Lal (P.W. 2) says:

I stock both brands of biris.... I commenced stocking the horse brand (complainant''s masters'' brand) biris five years ago and the biris bearing the sheep brand (the accused''s brand) three months ago. I have been purchasing the sheep brand as the packets are cheaper. The brands seen together appear similar.

M.K. Das Gupta (P.W. 3) says:

I purchase the sheep brand mostly as the sale of horse brand biri has declined The horse and the sheep brands appear similar except for the animals. An illiterate cannot differentiate between the two brands.

Balu Ram Kahar (P.W. 7) says:

I am now purchasing the sheep brand biris as it is cheaper. Seen from a distance the two brands appear similar. The illiterate villagers cannot detect the difference in the two brands. I have often sold a sheep brand biri for a horse brand demanded.

Though these witnesses do not depose where they purchased the sheep brand, it is clear that they were speaking of purchases at Ranchi. As it is not denied that the petitioner has sold the biris with the disputed label the witnesses must have purchased them from him at Ranchi. However, the question now is not of any importance. Section 531, Criminal P.C., says:

No finding, sentence, or order of any criminal Court shall be set aside merely on the ground that the inquiry, trial, or other proceeding in the course of which it was arrived at or passed took place in a wrong Sessions Division, District, Subdivision, or other local area unless it appears that such error has in fact occasioned a failure of justice.

Jhalda is midway between Ranchi and Purulia. If, as contended on behalf of the petitioner, the user was at Jhalda only, the accused could have been tried at Purulia in Manbhum. It has not been shown how the petitioner has suffered on account of the trial being held at Ranchi, The important question is whether the trade mark used by the petitioner is the colourable imitation of the trade mark of the complainant''s masters. The two labels are exactly of the same size. The colour and the design are almost similar. The name of the brands which is written in Bengali is "Double Ghora" (two horses) on the label of the complainant''s masters and "Double Bhera" (two rams) on the label of the petitioner. In both the cases the two animals, namely, the horses on the one and the rams on the other, are white on green ground. In one case the two horses are facing one another as if fighting with their fore legs raised and similarly in the disputed label the two rams are also in white on green ground facing one another as if about to fight with their fore legs raised. The various colours on the two labels are almost exactly the same, though the green colour in one case is deeper than in the other. Similarly, the blue colour where there are heads of the animals is deeper in one case than in the other. The space where the name of the brand is written in Bengali is yellow in one case and yellow and white in the other. No doubt, the two paintings are not identical, but it is not necessary that they should be so. It is enough that there should be such similarity that an unwary customer may not be able to distinguish the one from the other, especially when he sees the one without having the other before him. The names of the brands "Double Ghora" and "Double Bhera" sound similar. The only difference is that there is "Gho" in the one and "Bhe" in the other. In short, the resemblance is too close to be noticed by illiterate customers. The biri smokers mostly belong to this class and it cannot be expected that they will be able to distinguish between the two.

I do not propose to discuss the various decisions placed before me. In my opinion the question whether the trade mark, the subject matter of the prosecution, is a colourable imitation of another trademark is one of fact and the Court must come to its own conclusion after having placed itself in the position of an unwary customer. The learned advocate for the petitioner has contended that there is no evidence to show that anybody was in fact deceived. First of all, there is the evidence of Baluram Kahar (P.W. 7) to the effect that he often sold a "sheep brand biri" when "horse brand" was demanded. But the question is not whether anyone has been deceived in fact, but whether an average customer can be deceived and for this, as I have said, the Court must form its own opinion. In Payton & Co., Ltd. v. Snelling, Lampard & Co., Ltd. (1901) AC 308, Lord Macnaughten in the House of Lords referring to the evidence of witnesses said:

But that is not a matter for the witness; it is for the Judge. The Judge, looking at the exhibits before him and also paying due attention to the evidence adduced, must not surrender his independent judgment to any witness.

In that case the Court of appeal treated the question as one entirely of fact and that was upheld by the House of Lords. The same view has been taken in Jamal Noor Mohamed Sait & Co. v. Abdul Kareem & Co. 1934 Mad 211. It was contended in that case that the Court cannot act simply on its own comparison of the two papers. This contention was overruled and the decision of the House of Lords in the case referred to above was relied upon. In this case the two Courts below on a comparison of the two labels have held that the one in dispute is a colourable imitation of the other and I agree with them. The only appreciable difference to a man who can read is the difference of one word in the name and that the printed figures in the two are different, though in exactly the same relative position. Where there are figures and words in the one there are also figures and words in the other. Where there are Bengali words in the one there are Bengali words in the other. Where there are English words and figures in the one there are also these in the other. The only difference is in the heads and tails of the two animals. In the one it is of horses and in the other of rams. No doubt, if the two labels are placed side by side an observer will mark the difference, but for a man who has not carefully noticed the features too closely it will be difficult to distinguish the one from the other. There is therefore in my opinion no merit in either of the two contentions raised before me.

Coming to the question of sentence, first of all the imprisonment awarded in default of payment of fine is illegal. The maximum punishment of imprisonment which can be inflicted u/s 482 is one year. Therefore u/s 65 of the Code the imprisonment in default of payment of fine cannot exceed three months. The fine itself is somewhat excessive. The measure of punishment should be the damage caused to the complainant''s masters of which there is very little evidence in the case. No doubt, as the learned Magistrate has remarked the user was deliberate in order to steal the trade of the complainant''s masters, but all such cases are cases in which there is a deliberate attempt of this nature. If the user is without intent to defraud it is not criminal. I would therefore reduce the sentence to a fine of Rs. 400 and in default of payment of the fine the petitioner will suffer three months'' rigorous imprisonment. Out of the fine if realized Rs. 300 will be paid to the complainant.