ORDER Bind Basni Prasad, J.
1. This is a report under Section 438, Criminal P.C., by the learned Sessions Judge of Mirzapur recommending that the order of acquittal of Behari Lal Jain from offences under Sections 482, 483 and 486, Penal Code, be set aside. Briefly the facts are as follows:
2. Mohammad Sattar, the complainant, is a manufacturer of bidis in Mirzapur city. The packets of his bidis bear a pictorial trade-mark label known as 'Toofan Mail' Bidis. A copy of that picture is on the record. The accused is also a manufacturer of bidis in the same city and admittedly he has been using a pictorial trade-mark on the packets of his bidis known as the 'Imperial Mail'. It was Mohammad Sattar's case that the accused has by using the label known as the 'Imperial Mail' pirated upon his trade-mark and has thus committed offences under Sections 480, 483 and 486.
3. Learned trying Magistrate, Mr. P.J. Moore, by his judgment, dated 24-8-1946, acquitted the accused. His judgment runs into fourteen manuscript pages. He has dealt with the evidence and has critically examined every factor. He remarks:
Having regard to the definition of 'counterfeit' and the effect that the points of resemblance between the two labels might have on the average type of persons smoking bidis I should think that there can be little doubt that the ordinary public would easily confuse the 'Imperial' and 'Toofan' Mail brands and purchase the one thinking that it was the other. If, therefore, Mohd. Sattar's case were correct that B.L. Jain introduced his label 'Imperial Mail' in the circumstances alleged in the complaint and in the evidence of Mohd. Sattar and Gouri Shankar I should have little hesitation in holding that the accused fraudulently used a false trademark and sold bidis under a counterfeit mark.
I would say that in the present case the salient pictorial features of a railway train, water, hilly background and rail track are so common to both Exs. P2 and P3 that a person wanting 'Toofan' might easily have 'Imperial' foisted on him and vice versa.
Colourable imitation is enough to make a person liable; and the right to a trade-mark can be acquired by user, according to other rulings cited by complainant's counsel.
4. After quoting the evidence of D.W. 1 Panna Lal and D.W. 2 Sharif Main, learned Magistrate summed up the position as follows:
The position therefore is that 'Imperial Mail' brand was the property of Sharif Mian for some considerable time before this year.
There may be lack of good evidence regarding the exact sequence "of proprietors of 'Imperial Mail', but it is at least proved that these bidis were on the market for some years. Why Mohd. Sattar did not move against Sharif Mian or other previous owners of the mark 'Imperial Mail' is not clear; but I cannot believe that the complainant was unaware till early 1946 that bidis were being sold with a brand somewhat like 'Toofan Mail."
5. It may be noted here that D.W. Panna Lal stated before the Court that one Baijoo introduced the 'Imperial Mail' bidis on the market some 13 years before the case. The witness stated that he had worked for Baijoo for two or three years till the latter closed his business and then Panna Lal himself manufactured bidis and used that label for three or four years after which he changed over to the more profitable shellac trade.
6. It appears that on the date on which the learned Magistrate pronounced the judgment he was under orders of transfer to another district and so he sent his written judgment to his colleague Shah Pakhar Alain, who was at that moment doing the work of the City Magistrate and who delivered the judgment in open Court.
7. Learned Sessions Judge has referred the case on the following two grounds : (1) The delivery of judgment by Mr. Shah Fakhar Alarm was illegal and necessitates a retrial of the case. (2) The order of acquittal by the learned Magistrate was in view of the finding of fact arrived at by him wrong and occasioned a mis-carriage of justice.
8. On the first point I have no doubt in my mind that the view taken by the learned Sessions Judge is not correct. Nur Mahamed khan v. Emperor ('23) 10 A.I.R. 1923 All. 276, it was held that at the most the procedure in getting another Magistrate to pronounce the judgment was a mere irregularity completely covered by Section 587, Criminal P.C. Learned coun. sel for Mohammad Sattar relied upon Queen-Empress v. Hargobind Singh ('92) 14 All. 242 at p. 271. The facts of the case are quite distinguishable from the present. In that case what purported to be the judgment of the learned Sessions Judge did not comply with the requirements of Sections 366 and 367, Criminal P.C., and it was in that connection that the learned Judges emphasised upon the provisions of those two sections. The principle laid down in that case is not applicable to the facts of the present case. Here, Mr. Moore heard the entire evidence and arguments, wrote oat a fairly long judgment giving his reasons and as he was busy in packing up his household effects he sent his written judgment to his colleague. He fead not handed over charge then. I agree that strictly speaking he himself should have come to deliver the judgment in the open Court, but when he failed in this it was mere irregularity cured by Section 637.
9. Now, as regards the second point, the first question which arises is whether or not there should be an interference by this Court in an order of acquittal. Authorities are almost unanimous that in the exercise of its powers under Section 439, Criminal P.C., the High Court can in appropriate cases set aside an order of acquittal and order retrial. The real question is whether or not this is an appropriate case in which discretion should be exercised for interference with the order of acquittal recorded by the learned Magistrate. In this connection learned Counsel for Mohammad Sattar has referred to the following authorities : Venkatarao v. Padmanabha Raju 14 A.I.R. R. 1927 Mad. 981. This was a case under the Copyright Act. An author filed a complaint under Section 7, Copyright Act, for infringement of copyright. The accused pleaded that the complainant, not having paid the fee prescribed by Section 5, Copyright Act, 1847, which was the statute in force when the first edition of the complainant's work was published, the action was not maintainable and the accused were acquitted. It was held in revision that the com-plaint having been brought under Section 7 of Act 3[III] of 1914 which had repealed Act 20[XX] of 1817 and procedure about payment of fees having no place in the later Act, the non-payment of the fee prescribed under the earlier Act was no bar to the maintainability of the action, that the accused were wrongly acquitted and that there should be a retrial. Sham Lal v. Chaman Lal ('39) 26 A.I.R. 1939 Lah. 406 : This was a case under Section 409, Penal Code, in which the accused had been acquitted by the trying Magistrate and the Lahore High Court interfered in revision. An offence under Section 409 is punishable with imprisonment of either description for a term which may extend to ten years. Nand Ram v. Khazan ('21) 19 A.L.J. 589 : It was held in this case that the High Court should interfere with an order of acquittal only when the offence is of a serious character and the Judge comes to the opinion that there has been a miscarriage of justice. This was a case under Section 307, Penal Code and this Court interfered. Dhum Bahadur v. Hori Lal ('34) 21 A.I.R. 1934 All. 714 : This was a case under Section 408, Penal Code which is also punishable with seven years' rigorous imprisonment. Zamir Qasim v. Emperor ('44) 31 A.I.R. 1944 All. 137 : This was a case under Sections 120B and 457, Penal Code which are punishable with imprisonment extending to fourteen years.
10. On the other hand, learned Counsel for Behari Lal, relies upon the following authorities. In the matter of Sheikh Amin-uddin ('02) 24 All. 346 : It was held 'in that case that where the Provincial Government does not appeal from an order of acquittal, the High Court as a general rule will not entertain a reference under Section 438, Criminal P.C. The same view was followed in Emperor v. Madar Bakhsh ('03) 25 All. 128. In Qayyum Ali v. Faiyaz Ali ('05) 27 All. 359 it was held that although the High Court has power to interfere in revision with an original or appellate-order of acquittal, it will ordinarily not do so. In Pahalwan Singh v. Sahib Singh 8 A.I.R. 1921 All. 76U it was held that although a High Court has power under Section 439, Criminal P.C., to revise an order of acquittal, yet this is a power which should be used very sparingly, and it is a general and binding rule of practice that except in the most serious cases and in the event of grave miscarriage of justice the High Court will not interfere in revision in such matters. In In re Faredoon Cawasji Prabhu ('17) 41 Bom. 560 it was held that by a long established practice of the Bombay High Court re visional applications against orders of acquittal are not entertained from private petitioners except if it be on some very broad ground of exceptional requirements of public justice. The Lahore High Court also follows the same principle : Ganga Singh v. Ramzan ('23) 10 A.I.R. 1923 Lah. 601. There are rulings of other High Courts also laying down the principles just stated. Here I may refer also to three other rulings of the Calcutta High Court which have a bearing upon the propriety of interference with an order of acquittal like the one before us in the present case. In Surja Prasad v. Mahabir Prasad ('07) 11 C.W.N. 887 the accused had in close proximity to the shop of the complainant opened a shop from which he was selling rose-water in bottles which were similar to those which contained rose-water sold by the complainant and the accused had applied labels to his bottles which were similar to those used by the complainant, but on closer examination great differences in the labels were discernible. It was held that when a bona fide dispute exist between the parties as to the right to use a trade-mark, action should be taken before a civil and not before a criminal Court. In Ashutosh Das v. Kashab Chandra ('36) 23 A.I.R. 1936 Cal. 488 it was held that in deciding whether a dispute between the parties over trade, marks should be brought in a civil or a criminal Court, the real practical test is that the Criminal Procedure is only to be used in simple and clear-cut cases where a speedy relief is required by the prosecution. In all oases where complicated matters of registration, abandonment of user and so on are concerned, it is desirable that the dispute should be decided in civil Court. In Corporation of Calcutta v. Bengal Dooars Rly. Co. Ltd. ('40) 27 A.I.R. 1940 Cal. 531 it was held that the High Court shall always be reluctant to interfere with an order of acquittal in a criminal trial, specially when the real dispute between the parties can be properly decided in a civil action.
11. The preponderance of authorities, therefore, is that the High Court should interfere in an order of acquittal only when the case is of a serious nature. Offences under Sections 482, 483 and 486 cannot, having regard to the amount of punishment provided therein, be regarded as serious. The commission of these offences is punishable either with one or two years of imprisonment. The complainant has the civil remedy open to him. The judgment by the learned Magistrate was passed on 24th August 1946. It is eighteen months now when this revision has come up. If he could patiently wait for eighteen months, he can wait for a few months more to obtain a decision from the civil Court. Indeed, if instead of coming in revision to this Court he had gone to the civil Court, his suit would have certainly crossed the stage of the trial Court and might even have been decided by the Court of first appeal.
12. I do not wish to express any opinion whether or not there has been any act of piracy on the complainant's trade-mark by the accused, but the order of reference by the learned Sessions Judge will itself show that there are certain obscure points which have not been cleared in evidence. I have already referred above to the evidence of D.W. Panna Lal, according to whom the 'Imperial Mail' label had been in use for about thirteen years. Learned Magistrate, however did not record a finding accepting this period. He was, however, satisfied that this lable had been in use for several years past. It was also in evidence that the accused had bought the use of this label from one Sharif Mian and that he had paid a consideration of Rs. 500/- for the same. These were considerations which weighed with the learned Magistrate in acquitting the accused. It cannot be said that learned Magistrate committed any very grave error. In fact, learned Sessions Judge felt that if the lable of the 'Imperial Mail' was in use in the market for "10 or 12 or 14 years", then it might be a factor to exonerate the accused from criminal liability. Taking all these factors into consideration, I am of opinion that this is not a case in which this Court should interfere with the order of acquittal recorded by the learned Magistrate.
13. The reference is rejected. Let the record