Jaleel and Another v. Ofticer-in-Charge, Police Station, Kegaiie
(Dr. Gunawardena, J.)
JALEEL AND ANOTHER
OFFICER-IN-CHARGE, POLICE STATION, KEGALLE
COURT OF APPEAL,
DR, GUNAWARDENA, J.
CA NO. 210-211/88MC KEGALLE CASE NO. 37740OCTOBER 17TH, 1994.
Code of Intellectual Property Act No. 52 of 1979, Sections 152(2) and 152(4) -Charge of selling or exposing for sale tins of paint with forged mark – Defenceavailable.
The two accused were charged in the Magistrate Court, for selling or exposing forsale tins of paint with the forged mark Pentalite, an offence punishable undersection 152(4) read with section 152(2) of the Code of Intellectual Property Act.The accused had withdrawn the said tins of paint from the display racks, whichtins were found in a backroom of the shop. Upon inquiry by the police officer, theaccused stated that Pentalite paint was not available for sale. The receipt for thepurchase of the said tins of paint were produced by the accused, and theparticulars of the firm from which the said paint tins were purchased, were alsodisclosed to the police.
That in light of the evidence, (i) that the said paint tins were withdrawn fromthe display racks and were kept in a back room of the shop, (ii) the reply given tothe police officer upon inquiry, by the accused that, Pentalite paint was notavailable for sale, the prosecution has failed to prove an ingredient of the offencethat the said paint tins were for sale or were exposed for sale.
There are three defences available when charged with an offence underSection 152(2}:-
that the accused had taken all reasonable precautions and that hebelieved the mark or trade description to be genuine.
that the accused furnished to the prosecutor or> demand by him. all theinformation within the knowledge of the accused, in respect of the personfrom whom the accused obtained the goods.
that the accused acted innocently.
The facts proved in this case, entitled the accused to the benefit of all threedefences enumerated above.
Sri Lanka Law Reports
[1994J 1 Sri L.R.
APPEAL from judgment of the Magistrate's Court of Kegalle
P. A. L. Fernando for 1st and 2nd appellant M. Wijesundera S.C. for the A.G.
Cur adv vult.
October 17th, 1994.
DR. QUNAWARDENA, J.
The two accused in this case were charged in the Magistrate'sCourt of Kegalle. for selling or exposing for sale, paint tins withforged mark of Pentalite, an offence punishable under section 152(4)read with section 152(2) of the Code of Intellectual Property Act, No.52 of 1979. After trial, both accused were convicted of the saidcharge and a fine of Rs. 10,000/- was imposed, on each of them. Thisappeal is from the said conviction and sentence.
According to the prosecution witness lllangakoon, who was aManager of the C.I.C. Paint Company, he visited the paint shopbelonging to the accused on 04.05.1982, and found tins of paint withthe forged mark of Pentalite. The said paint tins were on display in theracks. Thereafter, on 16.6.1982 he had made a complaint to theKegalle police, and gone with S.l. Edirisinghe, to the shop belongingto the accused. The police officer had asked the 2nd accused, whowas in charge of the shop, at that time, whether they have Pentalitepaint tins for sale. The 2nd accused had replied that they do not havePentalite paint tins. Then the police officer had gone inside the shop,and found some paint tins in a back room of the shop. The policeofficer had taken charge of 10 four litre paint tins with the forged markof Pentalite. They were produced marked P1 to P10 at the trial. Onbeing questioned by the police officer, the 2nd accused hadproduced a receipt for 45 tins of four litre, and 45 tins of one litrepaint tins totalling to Rs. 9177/-. The receipt had been issued byBand Industries, from whose Agent, the accused have bought thepaint tins with the ferged mark of Pentalite. The said evidence oflllangakoon was corroborated by the evidence of S.l. Edirisinghe.
The said 10 tins of paint with the forged mark, along with the foursample paint tins taken from C.I.C. Limited, have been sent to theGovernment Analyst for report. The government Analyst's reportwhich was produced marked P15 stated that, the paints in P1 to P10
Jaleel and Another v. Officer-in-Charge, Police Station, Kegelle
(Dr. Gunawardena, J.)
were different from the paints found in sample paint tins, marked P11to P14.
The 2nd accused has given evidence and stated that the shopwas owned by his father and he got the tins of paint with the forgedmark, in 1982. On 16.6.82 a person from C.I.C. Limited came with aPolice officer and inquired from him whether they had Pentalite paintfor sale. He had replied that they do not have. According to him heproduced the receipt upon which they bought the paint, which wastaken away by the Police. He stated further that, he received acomplaint from one of the workmen who used this paint, about thepoor quality of the paint. Therefore he withdrew the paint from thedisplay racks and kept the paint in a back room of the shop. He hadinformed the Agent from whom they bought the paint, that he wantedto return the paint, as the paint was not of good quality. He stated thatthe said Agent came and took away two tins and the balance ofthose tins were found in the back room of the shop, by the police. Heasserted that the paint was not for sale.
It is clear from the evidence of the witnesses for the prosecutionthat the paint was found in a back room in the shop. Thus theprosecution evidence corroborates the accused's position that thepaint was in the back room of the shop and not in the racks. Thisindicates that the paint was not displayed for sale. Further, when theaccused was asked by the police officer for Pentalite paint, the replyhe received from the accused was that he did not have Pentalitepaint for sale. This position is corroborated by the fact that the paintwas withdrawn and had been kept in a back room of the Shop,although on 4.5.1982 witness lilangakoon had seen the paint tins withthe forged mark on the racks. Thus the evidence led for prosecutionfalls short of the proof that the tins of paint, with the forged mark,were for sale. Thereby the prosecution has failed to prove aningredient of the offence.
It is to be observed that three defences are available to anaccused person charged with an offence under Section 152(2) of thesaid Act. Firstly he can show that all reasonable precautions weretaken and he had no reason to suspect the genuineness of the mark.By the production of the receipt the accused in this have proved that
Sri Lanka Law Reports
[1994)1 Sri LR.
they bought the paint for valuable consideration from a known tradeAgency. Secondly it is a defence to show that on demand made by aprosecutor, he gave all the information in his power, with respect tothe person from whom he obtained such goods. This has also beendone by the accused by producting the receipt and disclosing thename and address of the trade Agency, from which they bought thesaid paint. The third defence is to show that he acted innocently.Therefore this Court is of the view that the charge against theaccused should fail, because the facts proved in this case show thatthe accused are entitled to the benefit of all the three defencesenumerated above.
This Court is of the view that for the aforesaid reasons theconviction of the accused-appellants cannot stand. The learnedMagistrate has failed to take all these matters into considerationwhen he convicted the accused-appellants of the said offence.Therefore the conviction and sentence of both the accused-appellants are hereby set aside, and both accused-appellants areacquitted. The appeals are allowed.
JALEEL AND ANOTHER v. OFFICER-IN-CHARGE, POLICE STATION, KEGALLE