Legal Provisions of Section 28 of Indian Penal Code, 1860.
When a person causes one thing to resemble another thing with the intention of deceiving thereby or with the knowledge that deception will thereby be practised, he is said to counterfeit. Explanation 1 makes it clear that it is not necessary that the imitation should be exact. As long as there is such a close resemblance that deception may be practised it is of no importance that, there are differences between the original and the imitation, and if the abovementioned intention or knowledge is proved it will be a case of counterfeiting. Actual deception takes place or not is of no consequence.
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Where there is no possibility of a deception because the imitation is so different from the original, the case does not fall under this section. Explanation 2 which deals with the question of presumption, states that when a person causes one thing to resemble another thing and the resemblance is such that there is a likelihood of a person being deceived thereby, the law shall presume that the intention of the person is to practise deception or that he had knowledge that deception would thereby be practised. Putting trade mark of a company on an old article of the same company is not counterfeiting. The Supreme Court has held that since the section nowhere restricts the subject-matter of the offence, imitating foreign currency is also counterfeiting within the scope of this provision.
In Khasim v. State of Tamilnadu, the Supreme Court observed that the word ‘counterfeit’ under section 28, Indian Penal Code does not connote an exact reproduction of the original counterfeited. Explanation 2 of the section is of great importance and lays down a rebuttable presumption where resemblance is such that a person might be deceived thereby. In such a case the intention or knowledge is presumed unless contrary is proved.