S.K. Pothilingam Pillai and Another vs Nagoor Meeran Rowther

Sadasivam, J.—The petitioners in both these revision cases are the same. The first petitioner has been convicted under Sections 482 and

I.P.C. and sentenced to pay a fine of Rs. 50/- on each count and in default to rigorous imprisonment for one month and the second petitioner

has been convicted u/s 486. I. P. C. and sentenced to pay a fine of Rs. 50/- and in default to rigorous imprisonment for one month in C. C. 1846

of 1965 on the file of the Sub-Magistrate of Sankarankoil. The criminal case was initiated on a private complaint filed by the respondent for an

alleged offence of using false property mark imitating that of the complainant in manufacturing and selling bug poison. The complainant is a

manufacturer and seller of a bug killer liquid called ""Byron"" and his concern is known as Laila Co. M.O. 1 is a card board box containing the bottle

of bug killer. The second petitioner was original nally working as an accountant under the complainant but he was discharged from service. The

Complainant''s case is that the first petitioner manufactured bug killer by name ""Bairavan"" in bottles enclosed in card board box M. O. 3, similar in

shape, size and design to M. O. 1 and that both the petitioners sold the said bug killer as that of the complainant

Both the petitioners have been prosecuted in the Court of the Sub-Magistrate (1) Tirunelveli in C. C. No. 1739 of 1966 for again infringing the

property mark of the respondent complainant. There the petitioners raised a preliminary objection that the complaint against them would also

constitute offences under Sections 78 and 79, Indian Trade and Merchandise Marks Act of 1958 that such offences are triable, according to

Section 89 of the said Act, by a magistrate not inferior to a First Class Magistrate and that they could not therefore be tried by a Sub-Magistrate.

The Sub-Magistrate overruled the objection and the petitioners have filed Crl. R. C. 747 of 1966 against that order. It is stated by the learned

advocate for the respondent that a case has been filed in the Court of the Sub-Divisional Magistrate of Koilpatti, against the petitioners for

infringement of the Trade Mark of the respondent complainant.

The contention of the learned advocate for the petitioners in both these cases is that the trial Court, namely, the Court of the Sub-Magistrate,

had no jurisdiction to entertain the complaints by virtue of Section 89 of the Trade and Merchandise Marks Act, as the offences alleged against the

petitioners really fall under Sections 78 and 79 of that Act. The further contention of the learned advocate for the petitioners is that even if the facts

alleged in the complaint of the respondent amount to offences both under Sections 78 and 79 of the Trade and Merchandise Marks Act as well as

under Sections 482 and 486 of the Indian Penal Code, the Sub-Magistrate would be clutching at jurisdiction in trying the offences under Sections

482 and 486, I.P.C. ignoring the offences under Sections 78 and 79 of the Trade and Merchandise Marks Act of 1958.

""Property mark"" is defined in Section 479 I.P.C. as a mark used for denoting that moveable property belongs to a particular person, ""Trade

mark"" is defined in Section 2(v) of the Trade and Merchandise Marks Act as a registered Trade Mark or a mark used in relation to goods for the

purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to

use the mark, in relation to Chapter X of that Act, and in relation to other provisions of that Act, as a mark used or proposed to be used in relation

to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right,

either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person and includes a

certification of trade mark registered as such under the provisions of Chapter VIII of that Act. After the passing of the Trade and Merchandise

Marks Act, offences relating to infringement of Trade Marks have been omitted in the Indian Penal Code leaving intact offences relating to

property mark.

The term ""property mark"" as used in the Indian Penal Code, is not known to English law. The distinction between trade mark and property

mark is however found in the Indian Penal Code. If a person passes off the goods of another as his own, the English Law, provided a cause of

action for the same which is independent of the cause of action for Infringement of the trade mark. It is pointed out in Ratanlal''s Law of Crimes

that the distinction between a ''trade mark"" and a ''property mark'' is, that the former denotes the manufacture or quality of the goods to which it is

attached and the latter denotes the proprietor of them.

I am unable to accept the contention of the learned advocate for the petitioners that the complaint filed by the respondent is only for infringement

of trade mark. In para 2 of the complaint in C. C. No. 1846 of 1965 on the file of the Sub-Magistrate, Sankarankoil, the complainant has stated

that in respect of his bug poison under his trade mark ""Bayron"" and in respect of shape of bottles and shape or size of card board box as stated in

the previous paragraphs and with colour as found therein, they are distinctive of his goods and he has acquired property rights in respect of them.

In fact in the subsequent paragraphs the complainant has stated that the petitioners have been passing off their goods as his goods by infringing his

property; mark. A mere comparison of M.Os. 1 and 3 in the case is sufficient to convince the correctness of the findings of the Courts below that

the petitioners have infringed the property mark of the respondent complainant in C. C. 1846 of 1965. It is true the alleged infringement of

property mark in the other case has yet to be enquired into. It is sufficient to state that the Sub-Magistrate, Sankarankoil, in the first revision case

and the Sub-Magistrate I, Tirunelveli in the second case had materials before them to take cognizance of the offence for infringement of property

mark, punishable under Sections 482 and 486, I.P.C. on complaint of the respondent in respect of the same.

The only other question to be considered is, whether by reason of the infringement of the trade mark, which is also evident from the complaints

and which would amount to offences under Sections 78 and 79 of the Trade and Merchandise Marks Act 1958 the Sub-Magistrate would have

no jurisdiction to entertain the complaints under Sections 482 and 486, I.P.C, on the ground that be would be clutching at jurisdiction by ignoring

obvious facts. The offence of infringement of trade mark is distinct from an offence of infringement of property mark. In fact the existence of such a

distinction is clear from the provisions in the Penal Code with regard to trade mark prior to the enactment of the Trade and Merchandise Marks

Act, when the offences relating both to trade mark and property mark were triable by Sub-Magistrates.

At page 1240 of Ratanlal''s Law of Crimes (20th Edn.) it is pointed out that if A is known not to be the maker or manufacturer of the goods he

sells, but only to have selected and put them up and he uses a certain mark to indicate to his customers that they will thus have the benefit of his

skill in selection, then, in the terminology of the Penal Code, the mark would be a property mark and not a trade mark, but if the main purpose of

the mark were to indicate the quality of the goods, then even though A was not the maker of them, it would be a trade mark and not a property

mark. Even in cases of goods which have no trade mark or in cases in which the trade mark has not been registered, a person could have a cause

of action both in civil and criminal Courts for infringement of property mark. It is only in respect of offences falling under Sections 78 and 79 of the

Trade and Merchandise Marks Act the complaint should be filed before the First Class Magistrate.

The complaints of the respondent in the cases before me are only for infringement of his property mark by reason of the conduct of the petitioners

in trying to pass off their goods as his goods, by adopting the property mark of the respondent. I am therefore unable to accept the contention of

the learned advocate for the petitioners that the Sub-Magistrate of Sankarankoil in the first case or the Sub-Magistrate (I) of Tirunelveli in the

second case has no jurisdiction to try offences relating to infringement of the property mark of the complainant. The criminal revision cases are

therefore dismissed.