Judgment

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 conviction and sentence passed by the Trial Magistrate under Ss. 482 and 486 of the Penal Code.

2. One Sheojanan 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, He claimed to have evolved a formula for manufacturing a scent to which he gave the name of Basant Bahar . The scent, when put into market, soon became popular and in the course of time gathered custom. The scent used to be packed in cartons and other receptacles which carried on them the picture of a Pari (an angel) holding a bunch of flowers in her hands and an inscription "Basant Bahar Scent Khushbuon Ka Badshah . The cartons and receptacles were of green colour and had on them in print the name of the manufacturer, namely, Basant Bahar Perfumery Co. Shahabad . Sheojanam Prasad thereafter applied before the Registrar of Trade Marks for registration of the trade mark. The application was, however, not granted as it contained certain technical defects. His case was that nonetheless the said scent with the aforesaid marks became popular in the market as the scent manufactured and sold by him.

3. The case of Sheojanam Prasad was that the appellant was also conducting a provisions store in Arrah. 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 Raj. The Pushp Raj scent, however, did not become popular with customers. The appellant, therefore, started putting out for sale his said scent under the name of Basant Bahar in cartons and receptacles, similar to those of his (Sheojanam Prasad), in the same colour, shape and size, except for one particular only, namely, the name of the manufacturer, such name being Basant Bahar Chemical Co. Ltd., Shahabad. In paras 14 and 15 of his complaint against the appellant, Sheojanam Prasad averred as follows:

"14. 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 receptacles of the various varieties with inferior quality of scent which are easily being palmed off as the genuine "Basant Bahar of the complainant with the result that the accused uses false mark and sells inferior quality Basant Bahar to defame and destroy the good name of the complainant and his scent (Basant Bahar) and make illegal gain for himself.

15. That the accused is manufacturing spurious scent and defrauding the public as genuine Basant Bahar with counterfeit 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.

4. 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 it was Sheojanam Prasad who imitated the genuine scent evolved by him, and that therefore, there was no question of his having committed any offence either under S. 482 or S. 486 of the Penal Code. Both the parties examined witnesses. The Trial Magistrate, on such evidence, found (1) that it was the complainant who placed the scent under the name of Basant Bahar first in the market, (2) that the 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 complainant. On these findings, the Trial Magistr