as the case may be, or under section 6 of this Act, of applying to goods any false trade description, or under section 485 of the Indian Penal Code of making any die, plate or other instrument for the purpose of counterfeiting a trade-mark or property mark, and proves--

(a) that in the ordinary course of his business he is employed, on behalf of other persons, to apply trade-marks or property marks, or trade descriptions, or, as the case may be, to make dies, plates or other instruments for making, or being used in making, trade-marks or property marks, and that in the case which is the subject of the charge he was so employed, and was not interested in the goods or other thing by way of profit or commission dependent on the sale thereof, and

(b) that he took reasonable precautions against committing the offence charged, and

(c) that he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the mark or description, and

(d) that, on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons on whose behalf the mark or description was applied,

he shall be acquitted.

Forfeiture of

goods.

FORFEITURE OF GOODS.

9. (1) When a person is convicted under section 482 of the Indian Penal Code of using a false trade-mark, or under section 486 of that Code of selling, or exposing or having in possession for sale or any purpose of trade or manufacture, any goods or things with a counterfeit trade-mark applied thereto, or under section 487 or section 488 of that Code of making, or making use of, a false mark, or under section 6 or section 7 of this Act of applying a false trade description to goods, or of selling, or exposing or having in possession for sale or any purpose of trade or manufacture, any goods or things to which a false trade description is applied, or is acquitted on proof of the matter or matters specified in section 486 of the Indian Penal Code or section 7 or section 8 of this Act, the Court convicting or acquitting him may direct the forfeiture to Her Majesty of all goods

and things by means of, or in relation to, which the offence has been committed or, but for such proof as aforesaid, would have been committed.

(2) When a forfeiture is directed on a conviction and an appeal lies against the conviction, an appeal shall lie against the forfeiture also.

(3) When a forfeiture is directed on an acquittal and the goods or things to which the direction relates are of value exceeding fifty rupees, an appeal against the forfeiture may be preferred, within thirty days from the date of the direction, to the Court to which in appealable cases appeals lie from sentences of the Court which directed the forfeiture.

Evidence origin.

*

*

13. In the case of goods brought into British India by sea, evidence of the port of shipment shall, of in a prosecution for an offence against this Act, or section 18 of the Sea Customs Act, 1878, as amended by this Act, be primâ facie evidence of the place or country in which the goods were made or produced.

Costs.

14. (1) On any such prosecution as is mentioned in the last foregoing section, or on any prosecution for an offence against any of the sections of the Indian Penal Code as amended by this Act, which relate to trade, property and other marks, the Court may order costs to be paid to the defendant by the prosecutor, or to the prosecutor by the defendant, having regard to the information given by and the conduct of the defendant and prosecutor respectively.

(2) Such costs shall, on application to the Court, be recoverable as if they were a fine.

15. No such prosecution as is mentioned in the last foregoing section shall be commenced after Limitation. the expiration of three years next after the commission of the offence, or one year after the first discovery thereof by the prosecutor, whichever expiration first happens.

18. (3) Nothing in this Act shall be construed so as to render liable to any prosecution or punishment any servant of a master resident in British India, who in good faith acts in

Protection servant.

of

obedience to the instructions of such master, and, on demand by the prosecutor, has given full information as to his master, and as to the instructions which he has received from his master.

Abetment of offence out of India.

22. If any person, being within British India, abets the commission, without British India, of any act which, if committed within British India, would under this Act, or under any section of that part of Chapter XVIII. of the Indian Penal Code which relates to trade, property, and other marks, be an offence, he may be tried for such abetment in any place in British India in which he may be found, and be punished therefor with the punishment to which he would be liable if he had himself committed in that place the act which he abetted. (Act IX. of 1891, s. 4.)

CHAPTER XIX.

OF THE CRIMINAL BREACH OF CONTRACTS OF SERVICE.

Breach of con

tract
of service
during a voyage or
journey.

490. WHOEVER, being bound by a lawful contract to render his personal service in conveying or conducting any person, or any property, from one place to another place, or to act as servant to any person during a voyage or journey, or to guard any person, or property, during a voyage or journey, voluntarily omits so to do, except in the case of illness or ill-treatment, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine, which may extend to one hundred rupees, or with both.

Illustrations.

(a) A, a palanquin-bearer, being bound by a legal contract to carry Z from one place to another, runs away in the middle of the stage. has committed the offence defined in this section.

A

(b) A, a cooly, being bound by lawful contract to carry Z's baggage from one place to another, throws the baggage away. ted the offence defined in this section.

A has commit

(c) A, a proprietor of bullocks, being bound by legal contract to convey goods on his bullocks from one place to another, illegally omits to do so. A has committed the offence defined in this section.

(d) A, by unlawful means, compels B, a cooly, to carry his baggage. B, in the couse of the journey, puts down the baggage and runs away. Here, as B was not lawfully bound to carry the baggage, he has not committed any offence.

Explanation.--It is not necessary to this offence that the contract should be made with the person for whom the service is to be performed. It is sufficient if the contract is legally made with any person, either expressly or impliedly, by the person who is to perform the service.

Illustration.

A contracts with a Dâk Company to drive their carriage for a month. B employs the Dâk Company to convey him on a journey, and during the month the Company supplies B with a carriage which is driven by A. A in the course of the journey voluntarily leaves the carriage. Here, although A did not contract with B, A is guilty of an offence under this section.

Breach of contract to attend on and supply the wants of helpless

persons.

491. Whoever, being bound by a lawful contract to attend on, or to supply the wants of, any person who, by reason of youth, or of unsoundness of mind, or of a disease or bodily weakness, is helpless, or incapable of providing for his own safety, or of supplying his own wants, voluntarily omits so to do, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, which may extend to two hundred rupees, or with both.

Breach of contract to serve at a distant place to which the servant is conveyed at the master's expense.

492. Whoever, being bound by lawful contract in writing to work for another person as an artificer, workman, or labourer, for a period not more than three years, at any place within British India, to which, by virtue of the contract, he has been, or is to be, conveyed at the expense of such other, voluntarily deserts the service of that other during the continuance of his contract, or without reasonable cause refuses to perform the service which he has contracted to perform, such service being reasonable and proper service, shall be punished with imprisonment of either description for a term not exceeding one month, or with fine not exceeding double the amount of such expense, or with both; unless the employer has ill-treated him or neglected to perform the contract on his part.

Commentary.

It has been held by the High Court of Bengal that the words "during a voyage or journey" govern the whole of s. 490, and, therefore, that breach of a contract to carry indigo from the field to the vats is not punishable under s. 490. (Neeonee v. Mullungha, 6 Suth Cr., 80; and see Saga v. Nirunjun, 9 Suth. Cr., 12.)

"

"This section does not apply to servants hired by the month, and under a continuing implied contract to serve until the engagement is terminated by a month's notice.' (Rulings of the Madras High Court, 27th March, 1863; S. C. Weir, 123 [216].) Nor to a servant engaged in Madras at a monthly salary who absconded after arriving at Cuddapah. (Mad. H. C. Rulings, 7th January, 1868; S. C. Weir, 124 [216].)

The words "artificer, workman, or labourer in s. 492 are the same as are found in s. 2 of Act XIII. of 1859. As to these, the Bombay High Court said: “A person who in the ordinary course would himself take part in the work he contracted for is an artificer, workman, or labourer within the scope of Act XIII. of 1859." (Re Amirkhan, Bom. H. C. Cr. R., 24th July, 1884; cited Sohoni, Crim. Procedure Code, 3rd ed., 519.) The words include labour skilled and unskilled, such as that of a plantation cooly (3 Mad. H. C. Rulings, 25; Reg. v. Gaub Gorah, 8 Suth. Cr., 6) or a silk spinner in a factory. (Koonjobehary Lall v. Raja Doomney, 14 Suth. Cr., 29.) They do not apply to contracts to serve as domestic servants (Reg v. Soobhoi, 12 Suth. Cr, 26), or to supply wood (Upper Assam Tea Co. v. Thopoor, 4 B. L. R., App. 1), or by a butcher to supply skins (7 Mad. H. C. Rulings, 13), or to a person who bound himself to another to render to him" service for agricultural and other purposes for one year (Reg. v. Bhagoan Bhivasan, 7 Bom., 379), or to any person who does not undertake personally to do the work, but who only contracts to get it done by some one else. (Gilby v. Subbu Pillai, 7 Mad., 100; Caluram v. Chengappa, 13 Mad., 351; re Balkrishna, 10 Bom., 96.)

In all three sections the essence of the breach of contract is that it should be done voluntarily, that is intentionally. (Ante s. 39.) Of course there is no offence where there is a legal justification for not carrying out the contract. (Ante s. 79; per Blackburn, J., in Unwin v. Clarke, L. R., 1 Q. B., 417, at p. 424; O'Neil v. Armstrong (1895). 2 Q. B., 70, 418.) A man who, under a mistake of fact, believes that he has given a notice to quit, which, if given, would dissolve the contract, is not liable. (Rider v. Wood, 29 L. J. M. C., 1; see per Blackburn, J., L. R., 1 Q. B., p. 424.) A man who leaves before his contract has expired, because he is wrongly advised that he is entitled to go, is liable. (Cooper v. Simmons, 31 L. J. M. C., 138, at p. 144.)

Under the English Master and Servant Acts (4 Geo. IV., c. 34, and 30 & 31 Vict., c. 14) it has been repeatedly held that an absenting from service, followed by the infliction of a penalty, does not cancel the agreement, and that a renewed or continued absenting can be punished by the inflction of a fresh penalty. (Ex parte Baker, 7 E. & B., 697; S. C., 26 L. J. M. C., 193; Unwin v. Clarke, L. R., 1 Q. B., 417; Cutler v. Turner, L R., 9 Q. B., 562.) These cases were decided upon the construction of Statutes which contain a procedure before the Magistrate, part of which provides for his cancelling the agreement if he thinks fit. This power is not given by Act XIII. of 1859. Accordingly, in a case under it. the Calcutta High Court decided that a labourer who was punished for absenting himself from service, and who did not return to it, could not be punished again for his continued absence. (Griffiths v. Tezia Dosadh, 21 Cal., 262.) however, the party returned to service, and so treated the contract as still subsisting, and then broke it again, I do not see why he should not be punished again under Act XIII. of 1859, or under Chapter XIX. of the Code.

If,