JUDGMENT

P.N. Bakshi, J. - This appeal under section 417 (3), Criminal Procedure Code is filed by Ram Krishna Singhal, representative of the Western India March Co., Ltd. Bareilly, against the judgment of Additional District Magistrate (Judicial), Bareilly dated 14th August, 1970, acquitting respondent No. 2, the Match Marketing Company, North Car Street, Shivkashi, district Ramnad, Madras State 1 and its proprietor Deep Chand Doga, respondent No. 1. The appellant filed a complaint against respondents No. 1 and 2 and seven others for their prosecution for offences under section 78 and 79 of the Trade & Merchandise Marks Act, 1958 read with Section 109, Indian Penal Code Padma Match Works situate in Madras State and V. Kandasamy Naicker its proprietor, who were opposite parties No. 1 and 2 in the complaint filed by Ram Krishna Singhal, pleaded guilty. Akhlaqul Hasan, Proprietor of Matches Biri Stores, Pull qazi, Bareilly opposite party No. 9 in the said complaint, also pleaded guilty. Bharat Match Stores, Matches Importers, Naya Bens, Delhi; Messers Manohar Lal, Manmohan Lal and Kitnti Lal opposite parties No. 5 to 8 in the complaint were discharged under Section 253, Criminal Procedure Code In the present appeal against acquittal we are not concerned with opposite parties No. 1, 2 and 5 to 9 of the complaint. This appeal is directed only against the acquittal of the two respondents, who were opposite parties No. 3 and 4 in the complaint filed by Ram Krishna Singhal. The complaint case briefly was that the respondents had manufactured matches with Chaukhat labels which were deceptively similar to Tekka matches and had sold them at Bareilly and other places.

2. The respondents aforesaid pleaded not guilty to the charges levelled against them. Their defence was that the court at Bareilly had no jurisdiction to try the case and that the Chaukhat labels of their match boxes were not deceptively similar to the Tekka labels of the match boxes manufactured by the Western India Match Company and as such they had not falsified any trade mark of the appellant. They denied having sold their goods at Bareilly.

3. The prosecution in support of its case examined 9 witnesses, namely, Ram Krishna Singhal P.W. 1, Ram Gopal P.W. 2, Jumman Khan P.W. 3, Hem Chandra Jain P.W. 4, Chhotey Lal P.W. 5, K. L. Widge P.W. 6, P.P. Ayer P.W. 7, Shahid Ali P.W. 8 and B.L. Verma P.W. 9.

4. On a consideration of the evidence of the prosecution witnesses the Additional District Magistrate (Judicial), Bareilly recorded a finding that there was a deceptive similarity between the label Chaukhal and the registered trade mark label Tekka, and that on a comparison of the two the impression on the mind of the ordinary purchaser of r the two match boxes would be that they are one and the same thing belonging to one and the same Company. On this finding the court below held that the respondents had falsified the trade mark of WIMCO. But the court below further held that as the falsification of trade mark WIMCO was done by the accused not in Bereilly but at the place of the manufacture of the match boxes and in particular of the labels Chaukhat, which admittedly was done at Madras, the court at Bareilly had no jurisdiction to try the accused for the offence under Section 78 of the Trade and Merchandise Marks Act. In this view of the matter the Additional District Magistrate (Judicial), Bareilly acquitted the accused for the offence under Section 78 of the said Act including the charge of abatement.

5. With respect to the second charge under Section 79 of the Trade, and Merchandise Marks Act the court below has also acquitted the respondents on the following findings :

"1. There is no evidence at all to the effect that the respondents sold match-boxes at Bareilly to their agent Akhlaqul Hasan.

2. There is no evidence also that Akhlaqul Hasan sold Chaukhat match-box at Bareilly with the aid or encouragement of the respondent Deep Chand Daga.

3. That the allegation of the accu