The offence of infringement of trade mark is distinct from an offence of infringement of property mark, and the Sub-Magistrate has jurisdiction to try offences relating to infringement of property mark, even if the same facts also constitute offences under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958.

ORDER :- The petitioners in both these revision cases are the same. The first petitioner has been convicted under Sections 482 and 486, 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 under Sec. 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 originally 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.

2. Both the petitioners have been prosecuted in the Court of the Sub-Magistrate (I) 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.

3. 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.

4. "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 provis