ANATH NATH DEY Vs. EMPEROR

JUDGEMENT

(1.) The appellant, Anath Nath Dey, has been convicted by the Fourth Presidency Magistrate of offences under Sections 482, 485 and 486 of the Indian Penal Code, and sentenced to pay a fine of Rs. 210, or in default to undergo 3 months simple imprisonment, the fine if realised to be paid to the complainant as compensation. The appellant was also charged in the alternative with offences under Sections 6 and 7 of the Merchandise Marks Act, 1889, but, beyond stating the fact at the commencement of his judgment, the learned Magistrate has taken, no further notice of it. He has not at all discussed those charges or come to any finding upon them. The case of the complainant Ashutosh Pal, as put forward in his petition of complaint, is that he manufactures and carries on business in umbrellas; that his business is of long standing and his umbrellas known in the markets as "Butto Kristo Pal" umbrellas, "Butto Kristo Pal" being the name of his son; that his trademark is the device annexed to the petition and marked A. (In Court it has been marked as Exhibit 1.) He farther complained that the appellant who had recently started business in umbrellas had counterfeited the said trade-mark, using one very similar to it, (Exhibit B). (In Court that has been marked as Exhibit 2.) He accordingly charged the appellant under Sections 482, 485 and 486 of the Indian Penal Code, and Sections (5 and 7 of the Merchandise Marks Act, 1889. The appellant filed a written statement denying the complainant s trade-mark. He alleged that Butto Kristo Pal was the son of Tulsi Das Pal, whose umbrella business he (the appellant) had purchased. He further complained that, the parties being rival traders, this case had been brought against him falsely and maliciously in order to ruin his business.

(2.) When the case came on for hearing the complainant gave evidence. He swore that the umbrellas manufactured by him in the name of his son were known as "Butto Kristo Pal" umbrellas. He further swore to the design (Exhibit 1), and to the appellants alleged counterfeit of it (Exhibit 2). In cross-examination he alleged his trade-mark in umbrellas to be "Butto Kristo Pal" or "Sri Butto Kristo Pal. One of the complainant s partners, Nagendra Nath Dey, stated: "The trade-mark of the umbrellas is Butto Kristo Pal. " The other partner, Lal Behari Ghose, in cross-examination went farther. He said: "Our trade-mark is Butto Kristo Pal. This configuration (meaning Exhibit 1) is not our trade-mark. Butto Kristo Pal only is our trade- mark." He admitted that it had not been advertised, still less registered. Butto Kristo Pal, the son of complainant, has no business connection with his father, except that Nagendra Nath Dey, one of complainant s partners, is also his partner. They carry on. a separate business at 120, Old China Bazar, the complainant s shop being at 121. Butto Kristo Pal, in cross- examination, said.: " Butto Kristo Pal is my trade-mark at No. 120. The shop at No. 120 was opened 3 or 4 years ago." The complainant called a number of other witnesses, merchants, who had bought umbrellas of his firm, and others. Not one of them speaks to any device or trade-mark of the complainant, but their evidence goes to show that there is a brand of umbrellas in the market known as "Butto Kristo Pal" umbrellas, and when they are asked for such, umbrellas they write to the complainant s firm for them. It is said that the complainant has been doing this business for 10 or 12 years.

(3.) The charge against the appellant is, that he has also been selling umbrellas as "Butto Kristo Pal" to umbrellas, a number of which were found at his place of business, No. 125-6, Old China Bazar. A wooden block, the die of Exhibit 2, was also found and has been put in to support the charge under Section 485.