THE STATE OF ASSAM Vs. RISHIMANI GUPTA AND ANR.

JUDGEMENT

(1.) ACCUSED Respondents Rishimani Gupta Riswanath Gupta were charged Under Section 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.

(2.) 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.

(3.) 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.