JUDGMENT P.N. Goel, J. 1. This appeal is directed against the order dated 24-7-1974 passed by Additional City Magistrate Kanpur. The appellant is an Inspector of Western India Match Co. Ltd., Bareilly. He filed a complaint against the respondents under sections 78 and 79 of this U. P. Trade and Merchandise Marks Act, 1958. The Additional City Magistrate, Kanpur, who tried the case did not take any action against the respondents. Therefore, the complainant has filed this appeal. Undoubtedly Western India Match Company, called Wimco, Bareilly, manufactures safety matches. Their trade mark is 'Tekka'. The Label which is pasted on the match boxes displays marks of the 4 suits of the playing cards, namely, spade, heart, club and diamond. The match boxes of Wimco are also called Tash Marks. Mohan Lal Daga, respondent no. 2 is son of Deep Chand Daga, respondent no. 1. These two respondents and Ganesh Mal Bapal, respondent no. 3 are said to be the partners of Orient Match Company and Match Marketing Company, Sivakasi, district Ramnad in the State of Madras. These companies were getting safety matches manufactured from Ranga Match Work and Radha Match Works in Thayilpatti and Parhaickampatti in district Ramnad. The label on the match boxes manufactured by Orient Match Company and Match Marketing Company was 'Chaukhat'. THIS label contained four marks of diamond, one of the four suits of the playing cards,, In October, 1966, the Orient Match Company sent two consignments of chaukhat brand safety matches to Kanpur to self (Exs. Ka-20 and Ka-21). This Company ultimately submitted two bills of these consignments to M/s. Ratan Lal Jain and Sons, 52/34 Nayaganj, Kanpur on 27-10- 1966 for Rs. 9, 557. 73 P. each. Or 28-10-1966 Deep Chand Daga, respondent, received payment of the amount of the two bills from M/s. Ratan Lal Jain and Sons (vide Exs. Ka-23 and Ka. 24). The grievance of the appellant was that the chaukhat label was deceptively similar to the Tekka label, that the respondents had infringed on the trade mark of Wimco, that the Chaukhat brand safety matches were sold by the respondents at Kanpur and that therefore, they were liable to be punished under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958. Mohan Lal Daga and Deep Chand Daga denied the allegations of the complainant. Mohan Lal Daga and Deep Chand Daga denied the allegations of the complainant. Deep Chand Daga asserted that the complainant had brought the case with a view to put down his cottage industry. Mohan Lal Daga asserted that the complaint had been filed with a view to bring pressure on him to stop the sale of his father's products. Ganesh Mal Havel showed ignorance in respect of the allegations made by the complainant. He asserted that he remained a partner of Orient Match Marketing Company upto March 31, 1966. 2. To prove his case the complainant examined himself, Shanker Das, Salig Ram Bajpai, Chhotey Lal, Phool Chand, Wahidul Hasan and Om Prakash, PWs. 1 to 7 and filed some papers. One of the papers (Ex. Ka. 17) is copy of the judgment dated 10-11-1971 of a civil suit decided at Jabalpur restraining the respondents from using Chaukhat Label on their match boxes. Another paper is an order of the Joint Registrar of Trade Marks, Bombay, refusing to register Chaukhat trade mark of the respondents, Exs. Ka. 2 and Ka. 3. The complainant had brought a similar complaint at Bareilly. The Magistrate held that he could not take any action because the safety matches were manufactured at Madras and Chaukhat brand match boxes were not sold at Bareilly. The complainant then filed criminal appeal no. 2275 of 1970 in this Court which was dismissed on 29-11- 1973. The order of the Magistrate acquitting the respondents under sections 78 and 79 was upheld. In the present case the Additional City Magistrate, Kanpur did not take any action against the respondents for the following reasons :- (1) Judgment of Criminal Appeal No. 2275 of 1970. (2) Chaukhat Label was not deceptively similar and no person was deceived by the Chaukhat Label. 3. Learned counsel for the parties have been heard at length and the record has been examined with their assistance. 4. Section 78 of the Trade and Merchandise Marks Act, 1958 punishes a person who falsifies any trade mark or falsely applies to goods any trade marks or makes, disposes of, or has in his possession any die etc. for the purpose of falsifying a trade mark or applies any false trade description or tampers with, alters or affaces an indication of origin. for the purpose of falsifying a trade mark or applies any false trade description or tampers with, alters or affaces an indication of origin. Then section 79 punishes a person who sells, or, exposes for sale, or has in his possession for sale or for any purpose of trade or manufacture any goods or things to which any false trade mark or false trade description has been applied. 5. Section 2, (f) defines expression "false trade description" as a trade description which is untrue or misleading or any marks or arrangement or combination thereof applied to goods in such manner as to be likely to lead persons to believe that the goods are the manufacture or merchandise of some person other than the person whose merchandise or manufacture they really are. 6. Section (2) (d) defines expession "deceptively similar" as "a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion.'' In the present case it is undisputed that the respondents manufacture Chaukhat brand of safety matches in the State of Madras and not at any place in the State of U. P. It was clearly held between the parties in Criminal Appeal No. 2275 of 1970 that because the respondents are manufacturing Chaukhat brand safety matches in the State of Madras, they were not liable to be proceeded against by the complainant in the State of U. P. The learned counsel for the appellant has conceded that even in the present case, the respondents cannot be convicted under Section 78 of the Act. 7. The appellant's counsel has [further conceded that in the present case there was no evidence to show that Mohan Lal Daga and Ganesh Mal Bapal, respondents Nos. 2 and 3 had sold or exposed for sale or had in their possession for sale Chaukhat mark safety matches at Kanpur and therefore, these two respondents could not be proceeded with under section 79 of the Act. 8. The appellant's counsel urged that the complainant had proved that the Chaukhat mark was deceptively similar to Tekka mark of Wimco and that Deep Chand Daga had sold Chaukhat mark safety matches at Kanpur and therefore. Deep Chand Daga was liable to be punished under section 79 of the Act. 8. The appellant's counsel urged that the complainant had proved that the Chaukhat mark was deceptively similar to Tekka mark of Wimco and that Deep Chand Daga had sold Chaukhat mark safety matches at Kanpur and therefore. Deep Chand Daga was liable to be punished under section 79 of the Act. So far as Deep Chand Daga is concerned two facts should be proved by the complainant : (1) Chaukhat mark label was deceptively similar to Tekka mark label of Wimco, and (2) Deep Chand Daga sold Chaukhat mark safety matches at Kanpur in October, 1966. 9. THE appellant's counsel has referred to the case of Parle Products (P) Ltd. v. j. P. and Co. Mysore, AIR 1972 SC 1359 which lays down test to determine deceptive similarity. The relevant observations are : "It is, therefore, clear that in order to come to the conclusion whether the mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him". In this case it was further observed : "In this case we find that the packets are practically of the same size, the colour scheme of the two wrappers is almost the same the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other. The essential features of both are that there is a girl with one arm raised and carrying something in the other with a cow or cows near her and hens or chickens in the foreground. In the background there is a farm house with a fence. The words "Gluco Biscuits" in one and "Gluccose Biscuits" on the other occupy a prominent place at the top with a good deal of similarity between the two writings. In the background there is a farm house with a fence. The words "Gluco Biscuits" in one and "Gluccose Biscuits" on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Any one in our opinion who has a look at one of the packets today may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not carefully enough to note the peculiar features of the wrapper on the plaintiffs' goods, he might easily mistake the defendants' wrapper for the plaintiff's if shown to him some time after he had seen the plaintiffs'. After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have therefore no doubt that the defendants' wrapper is deceptively similar to the plaintiffs' which was registered." 10. In the present case the Magistrate compared the appearance of Tekka label and Chaukhat label. He stated that in the Tekka label spade and club marks were in black and heart and diamond marks were in red whereas in the Chaukhat label all the four marks were of diamond out of which two were black and two were red. in the Tekka label there were marks of spade, heart, club and diamond on the four-corners whereas in the Chaukhat label there were stars on the four corners. In the Tekka mark, the writing on the top is in English whereas in the Chaukhat mark, it is in Hindi. In Tekka label words 'safety match' are written at the bottom in English whereas in Chaukhat label the name of the Company is written. In Tekka mark word 'Tekka' in English is written on both sides whereas in Chaukhat mark on one side word 'safety' is written and on the other side word 'Messrs' is written. In Tekka label the middle portion is in Gujrati Urdu and words "made in India" are written in English, whereas in Chaukhat Label price 7 paise naye is written under the four bricks (diamond). The surface of Tekka label is a little more yellow whereas the surface of Chaukhat label is a little whitish. On account of these differences in appearance, the learned Magistrate held that the Chaukhat label was not deceptively similar. The surface of Tekka label is a little more yellow whereas the surface of Chaukhat label is a little whitish. On account of these differences in appearance, the learned Magistrate held that the Chaukhat label was not deceptively similar. Because of the differences in the two labels mentioned by the Magistrate, it can easily be said that the two labels are not identical. Tekka label is Exs. 3, 4 and 5 on record. Chaukhat label is Exs. 7 and 8. A bare glance of these two labels clearly shows that they are labels of playing cards. In the middle of both the labels two marks opposing each other are in black and two marks opposing each other are in red. The red marks in both the labels are in the middle. The size of labels appears to be similar. If a person looks to these labels from a distance, he cannot easily distinguish them unless he has closely observed them from before. The outer line as well as the inner line in both the labels is in red. The space between these two lines in both the labels is in black. The interior rectangle in both the labels is almost in similar colour. In Tekka it is light yellow. In Chaukhat it is of white. Thus the general impression which is left on the mind is that Chaukhat label can give an impression of Tekka label. The Chaukhat mark is clearly likely to deceive or cause confusion to an ordinary purchaser. Therefore, the Magistrate, simply on the basis of the differences mentioned by him was not justified in holding that Chaukhat label was not deceptively similar to Tekka label. In the opinion of this Court Chaukhat Label is undoubtedly deceptively similar to Tekka label. 11. In this connection two facts which have a bearing on the point involved need mention. Ordinarily a trade mark is registered. Chaukhat mark was not registered. On the other hand, the joint Registrar of Trade Marks, Bombay, refused to register Chaukhat mark by order dated 23-1-1968. The Joint Registrar clearly held that the Chaukhat mark is likely to deceive or cause confusion in view of the Tekka mark of Wimco. The Wimco filed suit no. 22-A/69 against Match Marketing Company through Deep Chand Daga and Ganeshmal Bapal for permanent injunction because Chaukhat mark was deceptively similar to their Tekka mark. This suit was decreed on. The Joint Registrar clearly held that the Chaukhat mark is likely to deceive or cause confusion in view of the Tekka mark of Wimco. The Wimco filed suit no. 22-A/69 against Match Marketing Company through Deep Chand Daga and Ganeshmal Bapal for permanent injunction because Chaukhat mark was deceptively similar to their Tekka mark. This suit was decreed on. 1-11-1971 and the Match Marketing Company was restrained from using Chaukhat brand label on their safety matches and for selling or offering for sale safety match boxes bearing Chaukhat brand in any form whatever. This judgment has become final between the parties. Thus these two facts have their evidentiary value on the question whether Chaukhat label is deceptively similar to Tekka label or not 12. The position that follows from the above discussion is that Chaukhat label is deceptively similar to Tekka label. The finding of the Magistrate that no person was deceived by Chaukhat label has no bearing on the question whether the Chaukhat label is deceptively similar to Tekka label or not. 13. With regard to the second point there is positive evidence of Phool Chand, Partner, Ratan lal Jain and Sons, Nayaganj, Kanpur, (P W 5) and his employee Chhotey Lal, (P W 4) that Deep Chand Daga, respondent sold two consignments of Chaukhat brand match boxes and handed over railway receipts Exs. Ka-20 and Ka-21 and received payment of the two bills, Exs. Ka-23 and Ka-24 at Kanpur. The evidence of these two witnesses gets support from the statement of Salig Ram Bajpai, (P W 3) proprietor of M/s. Salig Ram Ashok Kumar, Nayaganj, Kanpur. He also deals in safety matches. The respondents, had first written to him to take delivery of the two consignments on the basis of railway receipts, Exs. Ka-20 and Ka. 21. But he refused to take the railway receipts from the Bank. Deep Chand Daga then met Salig Ram at Kanpur. Even then Salig Ram did not take delivery of the two consignments. It is thus evident that Deep Chand Daga had come to Kanpur to sell two consignments of Chaukhat brand match boxes at Kanpur. 14. Ka-20 and Ka. 21. But he refused to take the railway receipts from the Bank. Deep Chand Daga then met Salig Ram at Kanpur. Even then Salig Ram did not take delivery of the two consignments. It is thus evident that Deep Chand Daga had come to Kanpur to sell two consignments of Chaukhat brand match boxes at Kanpur. 14. The learned counsel for the respondent Deep Chand Daga has urged that while recording the statement of Deep Chand Daga under Section 342 CrPC, the Magistrate did not question him about making endorsement on the railway receipts in favour of M/s. Ratan Lal jain and sons at Kanpur and therefore it cannot be held that Deep Chand Daga had sold the consignments to Phool Chand at Kanpur. The learned counsel referred to the case of Tara Singh v. State, AIR 1951 SC 441 . In this case it was observed that the trial court is required, while examining the accused under section 342, to refer to the evidence and the circumstances appearing against him and that it was not enough to read over the questions and answers put in the Committing Magistrate's Court and ask the accused whether he has anything to say about them. It was then held that every error or omission in this behalf does not necessarily vitiate a trial and that it should be considered whether prejudice had been occasioned to the accused. There is no dispute to the principles laid down by the Supreme Court. In the present case the complainant attempted to prove his allegation by producing Phool Chand and Chhotey Lal. Both these witnesses clearly gave statements that Deep Chand Daga, respondent had sold the railway receipts to M/s. Ratan Lal Jain at Kanpur and had obtained payment of the bills of Orient Match Campany, Exs. Ka. 23 and Ka. 24 from Ratan Lal Jain and Sons at Kanpur. Their statements on these points were not challenged by the respondent in cross-examination. In other words their statements went uncross-examined and unchallenged. After the evidence of the complainant the Magistrate put a question to Deep Chand Daga, respondent that he had heard the statements of the complainant's witnesses and what he had to say thereof. Their statements on these points were not challenged by the respondent in cross-examination. In other words their statements went uncross-examined and unchallenged. After the evidence of the complainant the Magistrate put a question to Deep Chand Daga, respondent that he had heard the statements of the complainant's witnesses and what he had to say thereof. He did not state in reply that he did not come to Kanpur, that he had not sold the two consignments to the firm of Phool Chand and that he had not taken payment of the bills from him. In these circumstances no prejudice has been caused to Deep Chand Daga for not putting a direct question whether he had sold the two consignments to Phool Chand at Kanpur and obtained payment of the two bills. The respondents counsel then urged that Phool Chand was an interested person and as such his testimony should not be relied upon. This contention has no legs to stand because Phool Chand has produced documentary evidence in support of his statement. The said documentary evidence has not been challenged in any way. 15. No other point was urged by the respondent's counsel. 16. For the above discussion of the points involved, it is apparent that Deep Chand Daga is guilty of the offence punishable under section 79. The question which now arises is what punishment should be awarded to him. The offence in question was committed in the last quarter of the year 1966 i.e. about 14 years ago. The Jabalpur court issued permanent injunction in November, 1971. Deep Chand Daga obtained a sum of about Rs. 20,000.00 from M/s. Ratan Lal Jain and Sons. Pendency of a criminal case causes harassment and mental agony to an accused from the time of the commencement of the prosecution and upto the time of its final decision. An accused of the State which is quite far away has to meet sufficient expenditure in contesting the case. He has to come to the trial court on several dates and engage a lawyer to defend him. In all these circumstances, it will not be just that Deep Chand Daga be made to suffer imprisonment. Ends of justice will meet if he is sentenced to pay a fine of Rs, 2000.00 (Rupees two Thousand). 17. Appeal is partly allowed and partly dismissed. In all these circumstances, it will not be just that Deep Chand Daga be made to suffer imprisonment. Ends of justice will meet if he is sentenced to pay a fine of Rs, 2000.00 (Rupees two Thousand). 17. Appeal is partly allowed and partly dismissed. No action can be taken against Mohan Lal Daga and Ganeshmal Bapal, respondents Nos. 2 and 3. No action can be taken against Deep Chand Daga under Section 78 of the Trade and Merchandise Marks Act, 1958. Deep Chand Daga is, however, convicted under section 79 of the said Act and sentenced to pay a fine of Rs. 2000.00. In default of payment of fine, he will undergo RI for 6 months. He is given three months time from this day to deposit the amount of fine in the court below. - Appeal partly allowed.