JUDGMENT
Jack, J.
1. The petitioner obtained this rule on account of convictions under Sections 483 and 485, I.P.C. and sentences of fine of Rs. 500 under each section. The prosecution case was that the petitioner counterfeited the trade mark of M. L. Bose and Co., namely the word “Sree Ram Chandra Murti” with the figure of Earn and he has also been charged of having been in possession of an iron mould for counterfeiting the above trade-mark. The rule was issued on the ground first of all that there was no evidence or finding that the petitioner intended the bottles to contain the hair oil or goods similar to that of the complainant. In support of this proposition a passage from Kerly on trademark is quoted to the effect that trademarks are restricted to the class of goods for which the mark is used and it is further argued that no infringement of the trade, mark has been proved inasmuch as it is not proved that it was intended to sell hair oil in these bottles. But as pointed out by the appellate Court these bottles contain not only the trade-mark moulded in the glass of the bottles but the actual name of the hair oil and it is clear that the intention must have been to sell this hair oil in these bottles’. It is argued that even if the intention was to sell this particular oil of this particular firm in these bottles there would have been no infringement of the trademark. That may be so but under the proviso to Section 28, I.P.C. it shall be presumed, until the contrary is proved that the person so causing one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised, and in the circumstances of the present case, the onus was on the accused to show that in making these bottles he had no fraudulent intention and in the absence of such evidence it cannot be said that he had no such intention when appearances are so much against him.
2. The second ground on which the rule was issued was that there was no finding as to what symbol constituted the trademark of the complainant. The judgments of the Courts below did not indicate that there was any dispute as to what was the trade-mark or that the trade-mark was other than that described in the complaint. Reference is made to a passage in the judgment of the appellate Court in which the learned Judge states that these bottles contain in addition to the picture of Sam the fact of the registration of the trade-mark in London, the name of the firm and the actual name of the hair oil and it is quite absurd to suggest that in these bottles anything else except the hair oil could have been sold. It is not suggested here that there is any question as to what constituted the trade-mark. There is therefore no substance in this ground.
3. The third ground is that under Section 71, I. P.C., the two sentences were illegal. The two sentences would be illegal if they come under the first portion of Section 71 which however only applies where anything which is an offence is made up of parts any of which parts is itself an of-fence. It cannot be said that counterfeiting is an offence which is made up of parts of possessing the mould for counter felting and the act of counterfeiting. This case seems to come under the latter portion of the section namely, where several acts of which one or more than one would by itself or themselves constitute an offence constitute, when combined, a different offence. But even if this applies in the present case the offender has not been punished with a more severe punishment than the Court could award for any one of the offences, the maximum fine which a First Class Magistrate could impose being Rs. 1,000. There appears therefore to be no illegality in the sentences. The rule is accordingly discharged. The petitioner will surrender to his bail bond and serve out the remainder of the sentence imposed upon him in default of payment of the fine.
