RATANSI MULJI Vs. VINOD RATILAL GANDHI

JUDGEMENT

(1.) THESE two Criminal Writ Petitions filed under Art. 227 of the Constitution of India and S. 482 of the Code of Criminal Procedure, 1973 can be disposed of through a common judgment. The petitions are substantially between the same parties and the points of law and the facts that are involved are also common. The petitions raise issues of considerable importance and of farreaching consequence. I am, therefore, outlining the brief heads that fall for determination in these petitions which are as follows:-

(2.) THE brief facts giving rise to the present petitions are as follows 1n the year 1983, the Government of India enacted the Textile undertakings (Taking Over of Management) Act, 1983 (hereinafter referred to as "the Take-over Act") and by virtue of that Act, took over the management of several textile undertakings. Two of such undertakings were the Finley Mills Ltd. and the Gold Mohur Mills Ltd. we are, in the present Petitions, concerned with the Finlay Mills Ltd. and its Directors along with their representatives, who have been prosecuted by the officers of the National Textile Corporation Ltd. for infringement of the trade-marks that were owned by the Finlay Mills Ltd. It is an admitted position that the Finlay Mills Ltd. , even after the take-over, continue to function as a limited Company. The subsequent Act of nationalisation of the Company that was contemplated in the year 1983 has so far not taken place. Under the present Act of 1983, it is only the management of the undertaking that has been taken over by the National Textile Corporation, which has been designated as "the Custodian" under the Take-over Act. It appears from the record that the Finlay Mills Ltd. , who are the registered owners of several trade-mark s that are registered in their name, initially sought to prosecute the National Textile Corporation for unauthorised user of the trade-marls in question. Subsequent to this, the Finlay Mills Ltd. filed a suit on the Original Side of the Bombay High Court, being Suit No. 1815 of 1984, for the purposes of obtaining an injunction restraining the National Textile Corporation from using the trade-marks in question. On an interim application for injunction being made by the plaintiffs in that suit, the learned single Judge of this Court dismissed the application, and it is against this order that the plaintiffs went in appeal to the Division Bench. The Division Bench by its order dated 12-6-1986 dismissed the appeal and in the course of the order observed that the National Textile Corporation was authorised to use the trade-marks in question.

(3.) PURSUANT to this order of the Division Bench, the officers of the National Textile Corporation, acting under the assumption that the observations of the Division Bench conferred on them not only the right to use the trade-marks but the exclusive right to do so to the exclusion of other parties, instituted certain prosecutions against the Finlay Mills Ltd. and its directors and representatives alleging that the user on their part of the trade-marks in question constituted offences punishable u! Ss. 78 and 79 of the Trade and Merchandise Marks Act, 1958. In view of the fact that some of the products manufactured by the Finlay Mills Ltd. and the National Textile Corporation, which has now taken over the unit, are extremely well-known in the market in different parts of the country, such prosecutions were instituted not only in the city of Bombay but in Calcutta and elsewhere. The accused moved the Calcutta High Court by way of a Petition No. C. O. 15611 (W) of 1988, which petition came to be decided by the learned single Judge through his judgment and order dated 12-11-1990. The learned single Judge upheld the position that the accused cannot in law be prosecuted for the user of the trade-marks in question and that consequently the criminal prosecutions were liable to be quashed.