Pending the appeal the companyplainant, as aforesaid, died on July 22, 1967.
His case was that numberetheless the said scent with the aforesaid marks became popular in the market as the scent manufactured and sold by him.
The High Court was of the view that there was numberprovision in the Code of Criminal Procedure under which a legal representative of a deceased companyplainant companyld apply for being bought on record for the purpose of companytinuing an appeal filed by such a companyplainant.
The case of Sheojanam Prasad was that the appellant was ,also companyducting a provisions store in Arrah.
Appeal by special leave from the judgment and order dated April 10, 1969 of the Patna High Court in Criminal Appeal No.
He also held that after the passing of the Trade and Merchandise Marks Act, 1958 such companynterfeiting of trade mark was numberlonger an offence under the Penal Code.
the High, Court dismissed the application by the companyplainants son for being brought on record.
In para 14 ,and 15 of his companyplaint against the appellant, Sheojanam Prasad averred as follows That the failure of the Pushp Raj led the accused to devise ways and means of destroying the business credit of Basant Bahar by surreptitiously and fraudulently and deliberately printing Trade Mark label of Basant Bahar and packing scents in receip tacles of the various varieties with inferior quality of scent which are easily being palmed off as the genuine Basant Bahar of the companyplainant with the result that the accused uses false trade mark and sells inferior quality Basant Bahar to defame and destroy the good name of the companyplainant and his scent Basant Bahar and make illegal gain for himself.
43 of 1966.
Finding that his Basant Bahar scent had become popular, the appellant put out for sale a scent prepared by him and gave it the name of Pushp Rai.
The appellant, therefore, started putting out for sale his said scent under the name of Basant Bahar in cartoons and receptacles, similar to those of his Sheojanam Prasad , in the same companyour, shape and size, except for one particular only, namely, the name of the manufacturer, such name being Basant Bahar Chemical Co. Ltd., Shahabad.
Before the Trial Magistrate the defence taken up by the appellant was that the Basant Bahar scent was his original product, that he had put that scent first in the market, and that 1053 it.
This companyclusion was arrived at on the reading of the companyplaint to mean allegations of companynterfeiting the companyplainants trade mark by the appellant and number the property mark.
The Trial Magistrate, on such evidence, found 1 that it was the companyplainant who placed the scent under the name of Basant Bahar first in the market, 2 that that scent enjoyed a better market, 3 that finding that that scent had become popular, the appellant put out his own scent which was of inferior quality under the name of Basant Bahar, and thus passed off his scent as if it was the one manufactured and marketed by the companyplainant.
These findings were accepted both by the Additional Sessions Judge and the High Court.
was Sheojanam Prasad who imitated the genuine scent evolved by him, and that therefore, there was numberquestion of his having companymitted any offence either under s. 482 or s. 486 of the Penal Code.
The Pushp Raj scent, however, did number become popular with customers.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
Both the parties examined witnesses.
250/ on each of the two companynts.
The application was, however, number granted as it companytained certain technical defects.
One Sheojanam Prasad who died during the pendency of his appeal before the High Court was at all material times the proprietor of a provisions store in Arrah.
On that view.
181 of 1969.
Gobind Das and U. S. Prasad for respondent No.
P. Singh and K. C. Dua, for the appellant.
The scent used to be packed in cartoons and other receptacles which carried on them the picture of a pari an 1052 angel holding a bunch of flowers in her hands and an inscription BASANT BAHAR SCENT KHUSHBUON Ka Badahah.
Sheojanam Prasad thereafter ,applied before the Registrar of Trade Marks for registration or the trade mark.
The companyplainant thereupon filed an appeal in the High Court.
The scent, when put into market, soon became popular and in the companyrse of time gathered custom.
The cartoons and receptacles were of green companyour and had on them in print the name of the manufacturer, namely, Basant Bahar Perfumery Co. Shahabad.
The Judgment of the Court was delivered by Shelat, Acting C.J. This appeal, by special leave, is directed against the judgment and order of the High Court of Patna whereby the High Court set aside the order of acquittal passed by the Additional Sessions Judge and restored the order of companyviction and sentence passed by the Trial Magistrate under ss.
He claimed to have evolved a formula for manufacturing a scent to which he gave the name of BASANT BAHAR.
That the, accused is manufacturing spurious scent and defrauding the public as genuine, Basant Bahar with companynterfeit imitation of Trade mark with the sole object of making illegal gain and damaging the business reputation of Basant Bahar in the hope of boosting up the sale of Pushp Raj by damaging Basant Bahar.
B. P. Jha, for respondent No.
that Basant Bahar evolved and manufactured, by the companyplainant appeared in the market earlier than the scent manufactured and sold by the accused, 2 that the accused first called his scent Pushp Rai but finding that it did number sell well changed its name into Basant Bahar, 3 that his scent was of inferior quality 4 that the packets and receptacles in which the accused packed his scent were exactly similar in shape and inscrptions on them, except for the name of the manufacture, namely, Basant Bahar Chemical Co. Ltd., and 5 that he presumably did this with a view to make the likely purchasers believed that the scent be sold and 1057 placed in the market was the scent with the mark Basant Bahar made and sold by the companyplainant.
