1972 (8) TMI 131 - SC - Companies Law

Whether on the death of the complainant the appeal filed by him abated, and whether his son Ashok Kumar could be brought on record as the legal representative of the deceased complainant? Whether on the averments in the complaint and the evidence on record a case of counterfeiting the property mark of the complainant could be maintained? Held that - From the findings arrived at by the Trial Magistrate it must follow that the appellant marked his scent and the packets and receptacles in which it was packed with the same name, the same picture and the same inscriptions with the intention of causing it to be believed that the scent so marked was the one manufactured by and sold in the market by the complainant. The evidence clearly showed that the scent so marked by him was sold by him in the market with the intention and object aforesaid. The appellant thus committed the offence of both using a false property mark and of selling goods marked with a counterfeit property mark. Though the complainant used the words trade mark at several places in the complainant it was loosely used as can be seen from paras 14 and 15 of the complaint. The complainant s accusation was the use by the appellant of a property mark with the object of palming off to likely purchasers his scent of inferior quality as if it was the scent made by and belonging to the complainant and selling it or exposing it for sale as if it was the scent manufactured by and belonging to the complainant. Thus the High Court was right in setting aside the order of acquittal passed by the Additional Sessions Judge and in restoring the order of conviction and sentence by the Trial Magistrate. Appeal dismissed.

Issues Involved:
1. Whether on the death of the complainant, the appeal filed by him abated.
2. Whether the son of the deceased complainant could be brought on record as the legal representative.
3. Whether the allegations in the complaint and the evidence on record constituted a case of counterfeiting the property mark of the complainant.
4. Whether the appellant committed offenses under ss. 482 and 486 of the Penal Code.

Detailed Analysis:

1. Abatement of Appeal on Death of Complainant:
The High Court determined that there was no provision in the Code of Criminal Procedure under which a legal representative of a deceased complainant could apply to be brought on record for the purpose of continuing an appeal filed by such a complainant. However, the High Court held that the death of the complainant did not result in the abatement of the appeal. The rationale was that once a criminal appeal was admitted, the High Court had to continue and decide it, with the real interested party being the State rather than the complainant. This issue was not contested before the Supreme Court.

2. Bringing Legal Representative on Record:
The High Court dismissed the application by the complainant's son to be brought on record as the legal representative of the deceased complainant. This decision was based on the absence of any provision in the Code of Criminal Procedure allowing for such substitution for the purpose of continuing an appeal filed by the deceased complainant.

3. Counterfeiting of Property Mark:
The High Court examined the averments in the complaint, particularly paras 14 and 15, and the evidence on record. It concluded that although the complainant used terms like "trade mark" and "counterfeiting his trade mark," these expressions were loosely used. The substance of the complaint was about the counterfeiting of a property mark. The High Court disagreed with the Additional Sessions Judge's interpretation that the complaint was about counterfeiting the trade mark and not the property mark. The High Court restored the conviction and sentence passed by the Trial Magistrate.

4. Offenses under ss. 482 and 486 of the Penal Code:
The Trial Magistrate found that:
- The complainant first introduced the scent "Basant Bahar" into the market.
- The scent became popular.
- The appellant then introduced his scent under the same name "Basant Bahar" but of inferior quality, using similar packaging and labels except for the manufacturer's name.
- The appellant's actions were intended to deceive customers into believing they were purchasing the complainant's product.

The High Court upheld these findings and determined that the appellant's actions constituted the use of a false property mark and selling goods with a counterfeit property mark. The Supreme Court agreed with this conclusion, noting that the name "Basant Bahar," along with the picture of an angel and the inscription "Basant Bahar Khushbuon Ka Badshah," denoted the property mark of the complainant. The appellant's use of identical marks was intended to mislead purchasers into believing they were buying the complainant's product. Consequently, the appellant was found guilty of the offenses under ss. 482 and 486 of the Penal Code.

Conclusion:
The Supreme Court dismissed the appeal, affirming the High Court's decision to set aside the acquittal by the Additional Sessions Judge and restore the conviction and sentence by the Trial Magistrate. The appellant was found guilty of using a false property mark and selling goods with a counterfeit property mark, in violation of ss. 482 and 486 of the Penal Code.

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