Mangalprasad Jethalal Upadhyaya vs Tofikbhai Karimbhai and Others

D.H. Shukla, J.—The appellant, Mangalprasad Jethalal Upadhyay, lodged a private complaint dated 3-1-1979 in the Court of the learned Judicial Magistrate, First Class, Bagasara Vadiya, as the power-of-attorney-holder for and on behalf of Hiralal Parbhuram Tapkirwala, a registered partnership firm, having its Registered Office at Yeola, district Nasik Maharashtra, against unknown under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as "the Act").

In his complaint, he averred that his principals are manufacturers of Beedies which were sold under the trade-mark, the specimen of which he produced with his complaint. He averred that the beedies produced by his principals had acquired a reputation in the market and that his principals had a very large business in the same subject-matter. He averred that the trade-mark was duly registered under the Act, and its Registration No. 176239. He averred that his principals had come to know that in the market of Vadia, beedies bearing a trade-mark deceptively similar to the trade-mark of his principal was floated. He further averred that the accused persons appeared to have full knowledge of the popularity of the goods of the complainant''s principals and therefore it is clear that the accused wanted to sell their beedies of inferior quality under a deceptive trade-mark. He, therefore, prayed that the matter be referred to the Police for investigation and necessary action. The learned Judicial Magistrate, First Class, Bagasara-Vadia examined the complainant and ordered an inquiry u/s 202 of the Criminal Procedure Code. After the inquiry was over a criminal case under Sections 78 and 79 of the Act was put up against the two respondents, Tofikbhai Karimbhai and Rajakbhai Karimbhai. The trial Judge recorded the plea of the accused and on the accused denying and liability, proceeded to try them.

At the end of the trial, he acquitted both the accused and hence the present appeal by the original complainant.

Mr. R.K. Shah, the learned Advocate for the appellant, took me through the judgment, of the trial Court as well as the evidence on record.

Before I proceed to discuss the merits of the appeal, I would hasten to state that after hearing the learned Advocates for both the sides, i.e. to say Mr. R.K. Shah, for the appellant, and Mr. D.G. Karia, for respondents Nos. 1 and 2, and Mr. K.J. Vaidya, for the respondent No. 3-State, I have reached a conclusion that the acquittal judgment rendered by the trial Court is not required, under the circumstances of the case, to be interfered with. The acquittal-judgment is required to confirmed. Since I am confirming the acquittal judgment, I do not propose to discuss the entire evidence in my judgment, nor do I propose to examine all the arguments discussed by the trial Judge, on the basis of which arguments he reached the conclusion to acquit the accused. The Supreme Court in the case of State of Karnataka Vs. Hemareddy Alias Vemareddy and Another, , observed:

This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, that it is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with reasons given by the Court the decision of which is under appeal, will ordinarily suffice.

Mr. R.K. Shah fairly conceded that Section 78 of the Act was not attracted under the facts and circumstances of the case and that if the conviction of the respondents Nos. 1 and 2 can be based, it can only be based on Section 79. On perusal of Section 78 of the Act, I agree with him.

Mr. Shah submitted that the trial Judge has erred in holding that the non-production of power-of-attorney by the complainant is fatal to the prosecution case. Mr. Shah has supported his submission by referring to the judgment of the Supreme Court reported in Vishwa Mitter of Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot Vs. O.P. Poddar and Others, . It does appear that the contention raised by Mr. Shah is supported by the ratio of this authority. Mr. K.J. Vaidya and Mr. D.G. Karia both agreed that the complaint could not have been dismissed on the ground of non-production of power-of-attorney, inasmuch as there is nothing in the Act to militate against the general provision of the Criminal law that any person can put the Criminal law in motion. Of course, the facts in the reported judgment are different, but the tenor of the judgment indeed is that the general law that any person can put the Criminal law in motion is not in any way provided against by the particular Act under which the offence is alleged to have been committed. I have not agreed with the acquittal judgment on the ground that the complainant was not authorised to put the law in motion against the respondents. I have agreed with the trial Judge on the examination of the entire record of the case, the perusal of which has persuaded me to take the view that it is not possible to upturn the acquittal-judgment. Significant it is to scan the examination of the respondents u/s 313 of the Criminal Procedure Code. The case of the prosecution is that the respondents Nos. 1 and 2 are trading in Beedies on which is applied a false trademark which is deceptively similar to the registered trade-mark of the principals of the complainant. It is surprising to find that no question at all is asked to the respondents Nos. 1 and 2 on the very basis of the prosecution case. The first question which is asked is that the respondents Nos. 1 and 2 have heard the prosecution case and what do they have to state about it. It is indeed a general and a vague question which cannot give any idea to respondents Nos. 1 and 2 as to what is the gravemen of the charge with which the prosecution has approached the Criminal Court. The second question is regarding the evidence of Mangalprasad Jethalal, the complainant himself. It is asked that Mangalprasad is deposing in his evidence that he had received a complaint that in the area of respondents Nos. 1 and 2, the imitation beedies under ''Hiralal Chhap'' were being sold. On receiving the complaint, he had lodged a complaint at the Vadia Police Station and on 9th or 10th April, imitation beedies were recovered from the Paradise Pan Centre belonging to respondents Nos. 1 and 2, which beedies were taken into custody by the Police under a Panchnama. This is the liberal translation of the second question put by the learned Magistrate to both the respondents. Significant it is to note that there is nothing to suggest in the question regarding the gravemen of the prosecution case that the offence consisted of a false trade-mark applied to the beedies which were recovered from their shop and that the same trade-mark was deceptively similar to the trade-mark of the principals of the complainant. At this stage, it is necessary to note that this defect is to be found in the very plea of the accused which was recorded at the commencement of the trial. The emphasis was more on beedies than on trade-mark and therefore the accused''s plea was that they were not manufacturing the beedies, but that they were vending ready beedies. It is also relevant to note the reply which both the accused gave to the second question. They states: "It is not true the genuine beedies were found from the shop which they had purchased from the market. Naturally, when the question was based on the manufacture of imitation beedies, the answer also would be in regard to the imitation beedies. There is nothing to suggest that the prosecution case is based not on the beedies themselves, but on the wrapper which was applied to the beedies. According to the prosecution, the wrapper which was applied to the beedies which were recovered from the shop of respondents Nos. 1 and 2, was containing a false trade-mark which was deceptively similar to the trade-mark of the principal of the complainant. The third question relates to the deposition of witness Rajesh Mangaljibhai who had taken certain photographs at the time of the seizure of beedies from the shop of respondents Nos. 1 and 2. Nothing much turns upon it. The next and the last question relates to the deposition of Ahmadbhai Mehmadbhai Jamadar. Ahmadbhai has stated in his deposition that on 6-4-1979 the matter was entrusted to him for investigation and at 10-30 a.m. on 10-4-1979, he accompanied by Panchas, had gone to the shop of the respondents, and in presence of the complainant, had launched a raid during which he had recovered 11 packets, 7 loose packets and two broken beedies which the complainant had alleged was imitation goods. The Panchnama (Exh. 24) was drawn and the beedies recovered were collectively marked ''Article 3''. In this respect, what did the respondents Nos. 1 and 2 want to say? In the first place, this is a complicated question and covers several matters into one question. Such method of putting questions u/s 313 of the Criminal Procedure Code, has times out of number been criticised by the Supreme Court.

The Supreme Court in Ram Shankar Singh and Others Vs. State of West Bengal, at page 1244 that: "Examination of the accused u/s 342 is not intended to be an idle formality, it has to be carried out in the interest of justice and fairplay to the accused by a slipshod examination which is the result of imperfect appreciation of the evidence, idleness or negligence the position of the accused cannot be permitted to be made more difficult than what it is in a trial for an offence." Drawing from Ajmer Singh Vs. The State of Punjab, , it is found to be observed that it is not a sufficient compliance with the Section (Section 342, Criminal Procedure Code) to generally ask the accused that having heard the prosecution evidence what he has to say about it. He must be questioned separately about each material circumstance, which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and question must be fair and must be couched in a form which an ignorant or illiterate person may be able to appreciate and understand. In Ajmer Singh''s case it was further observed that every error or omission in complying with Section 342 does not vitiate the trial. "Errors of this type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree or error and upon whether prejudice has been or is likely to have been caused to the accused." In the present case, it does appear to me that the examination u/s 313 of the Cr. P.C. analogous to Section 342 of the Old Criminal Procedure Code, is extremely perfunctory and that not only that the circumstances appearing against the respondents have not been put, but even the main case of the prosecution is not explained to the accused.

It is further necessary to note that the Panch witness to the recovery of goods, namely, Jesingbhai Nanjibhai (P.W. No. 2) and Maheshbhai Mangaljibhai (P.W. No. 3) have turned hostile. The very recovery of the goods on which the prosecution case is based is not supported by the Panch witnesses. Mr. R.K. Shah submitted that the respondents in their statement did admit that beedies were recovered from their shop and that this inculpatory statement is enough to wipe out the deficiency in the prosecution case by the hostility of the two Panch witnesses. With respect to him, I do not agree with him, in view of the way in which the question is framed on the basis of the evidence of Ahmadbhai Mehmadbhai. The question is too complicated to be grasped by the respondents Nos. 1 and 2.

Section 79 of the Act prescribes that the conviction may be based upon a person being found in possession for sale etc. of goods to which a false trade-mark is applied, unless such person proves that he 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 has been committed in respect of the goods, and 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 that otherwise be had acted innocently. Now, in this regard, I find from the record that in his cross-examination, Mangalprasad admitted that he did not know whether the respondents Nos. 1 and 2 knew whether their goods were original goods or imitation goods. Along with this admission of the prosecution, we must read the reply of respondents Nos. 1 and 2 to the first question asked to them u/s 313 of the Criminal Procedure Code to the effect that the prosecution case is not true. The beedies which were recovered from their shop were original beedies and that they had purchased them from the market. Now, further we may read the evidence of Ahmadbhai Mehmadbhai, the Investigating Officer, who has stated in his cross-examination that he had recorded the statement of Rajak Karimbhai (respondent No. 2) and he had disclosed in his statement that they had purchased the goods in question from ''Anida Gam Sahkari Mandali'' and that he had also shown the voucher of purchase. In my view, these circumstances on the record of the case go to show that their case is covered under both the defences, that they had no reason to suspect the genuineness of the trade-mark applied to the goods found from them and that when the Investigating Officer demanded, they had given the information in their power with regard to the person from whom he had obtained such goods or things. Thus, it appears that the respondents had acted innocently. As a matter of fact, it is surprising that the prosecution ended the investigation with the seizure of the goods from respondents Nos. 1 and 2 and did not carry the search further to find out as to what part was played by Anida Gam Co-operative Society from which respondents Nos. 1 and 2 purchased the goods. It is necessary to note that even the Investigating Officer has admitted that he would not say after comparing the true and false labels produced on the record of the case as to which one was original and which was imitation one. The points of distinction which are pointed out in the evidence of the complainant are rather too minute to be observed by an unwary purchaser. According to the respondents Nos. 1 and 2, they themselves were purchasers of these goods from a named source, namely. Anida Gam Co-operative Society and therefore I have reason to believe that they had no reason to suspect the genuineness of the trade-mark applied to the goods found from their possession.

Mr. R.K. Shah wanted me to note some of the points on which the learned Magistrate had gone wrong, but I do not find it necessary to do so, since I am clear or main lacuna in the prosecution case, on the basis of which I am confirming the acquittal of respondents Nos. 1 and 2.

In the result, the acquittal is confirmed and the appeal is dismissed.