The State of Assam vs Rishimani Gupta and Another

D. Pathak, Actg. C.J.

Accused Respondents Rishimani Gupta Riswanath Gupta were charged u/s 78 and 79 of the de and Merchandise Marks Act read with Section 34, Indian Penal do for applying false trade-mark or deceivably similar mark "Morton". "Mohan" which is identical with or similar to trade-mark "Morton" of M/s. C&E (Morton (India) Ltd. Without any assent from the proprietor of the trade-mark "Morton" and were in possession of die block, machine, plates: (SIC) etc, for the purpose of falsifying in furtherance of (SIC) intention, of both the Respondents. They were also (SIC)rged that on or about 23.3.72 the respondents sold or exposed for sale and possessed for sale for the purpose of trade manufacture of Lacto Bon Bon, toffees, Lozenge3, etc, to on the said false trade-mark was applied in furtherance of (SIC) intention of both the Respondents In order to deceive said M/s. C.&.E. Morton (India) Ltd.

On a complaint lodged by the Branch Manager of the many, the investigation was started and ultimately they were rge-sheeted under the aforesaid two sections of law. The Court framed charge and after completion of the trial (SIC) the evidence on record convicted both the Respondents the aforesaid sections of law and Imposed a fine of Re. (SIC) each under each court in default R. L. for two months (SIC) under each count. The accused-Respondents being aggrl-(SIC) preferred an appeal and the appellate Court let aside the (SIC) and order passed by the trial Court, against which present appeal has been preferred by the complainant.

A brief narration of the facts leading to the present (SIC) appears from the judgment of the appellate Court. The (SIC) Shri Balkrisana Sharma, Branch Manager of the ? Morton (India) Ltd. lodged an ejahar stating that M/s C.&E. (SIC)rton (India) Ltd is the owner and proprietor of the registered (SIC) and Mark "Morton" and the said Company is (SIC)nag on the business of manufacturing and selling of (SIC), Including toffees, lozenges under the said trade-name mark "Morton" since 1923. It has been alleged that (SIC) advantage of the reputation and quality of the aforesaid (SIC) of the said company, the nocused-Respondents who are the proprietors and partners of M/s. Ashok confectionery Dibru-garh bad entered Into a conspiracy to pass off in the market to unwary public confectionery viz. Lacto bonbon, toffees, lozenges etc. of interior quality wrapped in wrappers "Morton",. Mohan" which so nearly resembles the trade-mark of "Morton" of the complainant-Company as to deceive or so cause confusion with wrongful object to trap the unwary purchasers into purchasing the goods in the belief that they are buying the goods of the said Company. On these allegations the proceedings started and the trial ended in convictions and sentences of the accused-Respondents, as aforesaid, which was later on set aside by the learned appellate court. It is against this acquittal, the complainant has come up in appeal before this Court.

We have gone through the evidence as well as the judgment and order of the learned appellate Court. It comes to our notice that there was no material to show that the accused-Respondents by any means passed-off their goods to be that the complainant-Company. The only thirds that were seized from the premises of the accused-Respondents, were some wrappers with the Inscription of "MORTON" and "MOHAN". We have very carefully gone through the evidence of PW 1 Balkrishna Sarma, Branch Manager of the complainant Company who lodged the compliant, but we do not find any material to show that the Respondents anywhere tried to pass-off or to falsify or to deceive the customers by any goods displayed or stocked for sale with some die or mark similar to those of the complainant-Company. The evidence of P.W. 1 discloses that he Instructed the police what to seize and what not to seize and the police seized some of the wrappers with the above inscriptions namely "MORTON", "MOHAN" at the behest of the complainant. Material Ext. 5 are some of the wrappers seized from the premises of the accused-Respondents. It is curious to find from the evidence of P.W. 1 that he wanted the police to believe that material Ext. 5 was spurious. On an over-all consideration of the evidence adduced on behalf of the complainant we do not find any materiel that there was any intention of the Respondents to pass off any of their manufactured goods to be that of the complainant-Company. The law as regards the infringement of the trade-mark is no longer rea integra. (SIC), does not mount to offence unless there is an infringement of a patent (SIC) copyright or an attempt to pass goods as those of another (SIC) or manufacturer either by using a false trade mark or description likely to deceive purchasers by deliberate imitation of Renuine mark or description or by falsely giving out goods as goods of some other dealer or manufacturer.

On scrutiny of the evidence we do not find that the respondents have in any way made infringement of the trade-mark of the complainant Company. At any rate, the prosecution has (sic)led to substantiate the allegation of the infringement of trade-marks by the Respondents. In this view of the matter, we do (SIC) find any merit in this appeal and the same is dismissed such.