Emperor Vs. Latif - Court Judgment

Excerpt:
act no. xlv of 1860 (indian penal code), sections 478 and 482 - 'trade-mark'--importer using a distinctive mark has property in it as against the rest of the world. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - it appears that they deal in machine-made sugar as well, but in the cases where they supply the hand-made article they have it put up in sacks stamped with the name of their firm. they use the mark in question for the purpose of denoting that the sugar contained in bags so marked has been selected and imparted by them :their customers accept the mark as a guarantee that the sugar is hand-made, and by reason of the reputation so acquired for the mark the complainants have established a special trade to the benefit of which the are 8. i have no difficulty in finding, therefore, that the complain-ant firm's mark is a 'trade-mark' as defined in section 478 of the indian penal code and that the accused was rightly found guilty of an offence punishable under section 482 of the indian penal code.lindsay, j.1. this is the application in revision of one latif miyan who has been convicted of an offence under section 482 of the 'indian penal code, that is to say, the offence of using a false trade-mark2. the facts as found by the court below are as follows : the accused and one ali miyan carry on business as commission agents in the bazar in cawnpore and deal principally in sugar. a few doors away from the accused's place of business is the shop of another firm of commission agents called hardeo das and kalyan mal. this firm too deals in sugar, and the evidence is that they have established a special line of trade in hand-made sugar which they export from cawnpore to rajputana. it appears that they deal in machine-made sugar as well, but in the cases where they supply the hand-made article they have it put up in sacks stamped with the name of their firm. the machine-made sugar on the contrary is supplied in the sacks as they come from the manufacturer. according to the evidence, when orders are placed for hand-made sugar, the complainant firm procures the goods from certain manufacturers in ghazipur, azamgarh and ballia this sugar is then put in bags bearing the name of the firm and passed on to the purchaser. the complainants say that in this way they have acquired a trade reputation and that their firm's name stamped on the bags is accepted as a guarantee that the bags contain hand-made and not machine-made sugar.3. on the 9th march an employee of the complainants noticed outside the place of business of the accused a collection of forty sacks stamped with the name of the complainants' firm. having ascertained that no bags bearing the name had been sold to the accused's firm he questioned the accused, who gave evasive replies. the police were communicated with and in the meantime the accused began to obliterate the marks. the learned judge has held that the marks were a colourable imitation of the marks used by the complainants. the defence was that the sugar in these bags-machine made sugar-had been obtained to the order of a merchant named qasim miyan, and that it was the latter and not the accused who had put the marks on the sacks. this man was summoned as a witness for the defence, but his attendance could not be procured. the judge was of opinion that in any case it was proved that the accused had abetted qasim miyan in he matter of affixing the false marks, and, as i have said, there is the evidence to show that it was the accused who began to obliterate, the marks when the complainants' man went to inform the police.4. it has been argued in the first place that on the facts found no case of 'using' the false marks was established against the accused. this contention is disposed of by what has just been said. the anxiety of the accused to cause the disappearance of the marks can only be attributed to the fact that he put them there himself or assisted in putting them there.5. the principal argument has been that the mark which the complainants put upon their bags containing hand-made sugar is not a trade-mark. it is true that the complainants do not profess to manufacture this kind of sugar, but i think it is established, that the hand-made sugar in which these complainants deal is their 'merchandise' within the meaning of section 478 of the indian penal code. it has been held that a distinctive mark may be adopted by a person who is not the manufacturer but the importer of goods, and he will acquire the property in that mark as indicating that all goods which bear it have been import ed by him. ralli v. fleming (1878) i.l.r. 3 calc. 417 and lavergne v. hooper (1884) i.l.r. 8 mad. 1496. as was observed in the judgement in the latter case, 'the object of the law in recognizing a right to trade-marks is to protect the public from fraud, to secure to a purchaser reason able certainty that he is purchasing an article which has certain reputation in the market, and to secure to a manufacturer or selector the reward of his skill and care, the benefit of the custom which he deserves and which is intended for him' -millington v. fox ( ) my. and cr. 338 : 45 r.r. 271.7. applying these principles here, we find that the complainants are selectors who import hand-made sugar to cawnpore when they receive orders for it. they use the mark in question for the purpose of denoting that the sugar contained in bags so marked has been selected and imparted by them : their customers accept the mark as a guarantee that the sugar is hand-made, and by reason of the reputation so acquired for the mark the complainants have established a special trade to the benefit of which the are8. i have no difficulty in finding, therefore, that the complain-ant firm's mark is a 'trade-mark' as defined in section 478 of the indian penal code and that the accused was rightly found guilty of an offence punishable under section 482 of the indian penal code. the application is dismissed.