LexTHE STATE OF UTTAR PRADESH versus HAFIZ MOHAMMAD ISMAIL AND HAFIZ JAWED ALI
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...... S.C .. R. SUPREME COURT REPORTS 911 fact as the utilisation of a portion of the reserve as working capital has to be proved by the employer by evidence given on affidavit or otherwise and after giving an opportunity to the workmen to contest the correctness of such evidence by cross-examination. We must therefore reject the contention urged on behalf of the employer-appellant that the balance- sheet that has been filed is sufficient to prove that Rs. 2,27,000 of the depreciation fund was actually used as working capital. There is, as we have already stated, no material on the record from which any conclusion can be reached as regards the utilisation of the whole or any portion of this sum lying in depreciation fund as working capital. The appellant's counsel finally asked that the matter may be sent back to the Industrial Tribunal and an opportunity given to him to adduce proper evidence on this point. We do not see any circums- tance that will justify us in making an order of remand in a case of this nature. The appeal is accordingly dismissed with costs. Appeal dismissed. THE STATE OF UTTAR PRADESH v. HAFIZ MOHAMMAD ISMAIL AND HAFIZ JAWED ALI (JAFER IMAM, K. N. WANCHOO AND J. c. SHAH, JJ.) Criminal Trial-Counterfeit trade mark-Wrappers and labels of soap made to resemble those of another soap-If Counterfeit- Indian Penal Code, I86o (XLV of I86o). ss. 28 and 486. The respondents were found selling counterfeit Sunlight and Lifebuoy soaps and were prosecuted under s. 486 of the Indian Penal Code. The Magistrate found that the resemblance between the wrappers and labels in which the soaps were being sold and those of the genuine soaps was such that a person may be deceived by it and convicted the respondents. An appeal to the Sessions Judge was dismissed. On revisl.on the High Court held that the wrappers and labels were mere colourable imitations of the genuine trade mark, but were not counterfeit and acquitted the respondents. II6 P. T. Red Dye Wo?hs Ltd. v. Dyes &- Chemical Workers' Union Das Gupta]. February, 9 • • r960 State of U. P, v. H ufiz ~VJ ohnnirned Ismail & Hafiz jawed Ali 912 SUPREME COURT REPORTS [1960(2)] Held, that the wrappers and labels were counterfeit of the genuine wrappers and labels of Sunlight and Lifebuoy soaps. In order to prove that the v.rrappers and labels were counterfeit within the meaning of s. 28 of the Indian Penal Code rear! with Explanation z thereof the Court had to decide (i) whether the \vrappers and labels on the soaps sold by the respondents were made to resemble the \vrappers and l:J.b~ls of the genuine Sunlight and Lifebuoy soaps, and (ii) if they were so made to resemble, whether the resemblance \Vas such as might deceiyea pcr':'..on. It \\-'as not necessary to import \Yards like "coluurablc imitation " ins. 28. Explanation I of s. 28 provided that it \Vas not essential to counterfeiting that the imirntion should be exact and the High Court had erred in not considering \vhether tl1e resemblance was such as might deceive a person, inspite of the difference in detail between the two sets of wrappers and labels. Criminal Appellate Jurisdiction : Criminal Appeals Nos. 129-130 of 57. ' Appeals by special leave from the judgment and order dated July 13, 1956 of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Revi- sions Nos. 118 and 119 of 1955, arising out of the judgment and order dated March 31, 1959 of the Second Civil and Sessions Judge, Lucknow in Criminal Appeals Nos. 511 and 512 of 1954. H. N. Sanyal, Additional Solicitor-General of India, G. C. Mathur, and 0. P. Lal, for the appellant. N uruddin Ahmad and N aunit Lal, for the respon · dents. 1960 February, 9. The Judgment of the Court < was delivered by ,.. Wanchoo J. W ANCHOO, J.-These are two connected appeals by special leave againt the judgment of the Allahabad c High Court. The brief fa<>ts necessary for their disposal are these. Oue Bhagwan Swarup Saxena, the Trade Marks Investigator, Lever Brothers Limited India (hereinafter called the company) was working in Lucknow on behalf of the company. He came to know that counterfeit Sunlight and Lifebuoy soaps were being manufactured and sold on a large scale in Y ahiaganj and other places in Lucknow. This was investigated on behalf of the company which manu- factured genuine Sunlight and Lifebuoy soaps. It was found that two soap factories i
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