John Beaumont, Kt., C.J.
1. This is an appeal by Government against the acquittal of the accused by the Presidency Magistrate, 8th Court, Bombay. The accused were prosecuted under Section 6 of the Indian Merchandise Marks Act (IV of 1889), and that section provides that if a person applies a false trade description to goods, he shall, subject to the provisions of the Act, and unless he proves that he acted without intent to defraud, be punished with imprisonment or fine, and on subsequent conviction with enhanced imprisonment or fine, as therein mentioned.
2. The findings of fact of the learned Magistrate are that the accused sold certain bales of piece goods, and that a substantial number of the pieces were stamped with a length mark of twenty-four yards, though in fact they were of less than that length. The variations were not constant; in the case of some of the pieces the shortage was much greater than in the case of other pieces; some pieces were correctly stamped, and some were even longer than the figure with which they were stamped; which facts suggest insufficient checking, rather than a fraudulent design. But on the facts the learned Magistrate held that the accused had applied a false trade description to goods, and I see no reason to differ from his finding. He acquitted the accused, because he held that 'mens rea' is an essential ingredient of an offence under Section 6, and that in consequence a corporation, like the accused, could not be convicted under that section. He added this :-
I go further and hold that even assuming that that element' (of mens rea) ' was not there, the accused have shown that they have taken all the precautions in the conduct of the business which they were expected to take according to the usual manner in which the business is carried on in the other textile factories in the city and there was no reason for them to suspect the genuineness of the marks put on the particular goods in question and had no intention to defraud.
That finding has not been seriously challenged, and I think we must accept the learned Magistrate's view that the accused through their agents had taken all ordinary precautions for finding out that the pieces were correctly stamped.
3. The question then is whether in law an offence was committed. I am not in agreement with the learned Magistrate's view that a corporation cannot be prosecuted and convicted under Section 6 of the Indian Merchandise Marks Act. Obviously a corporation can apply a false trade description to goods, and, having regard to the extent to which large businesses are in the hands of corporations, it would be an unfortunate omission from the Act if corporations cannot be prosecuted under this section. The' learned Magistrate considered' that there can be no 'mens rea' in the case of a corporation. As pointed out in Allard v. Selfridge & Co.  1 K.B. 129 mens rea means merely a criminal intention In the case of most crimes against property that does involve an intention to do something dishonest or fraudulent in the ordinary sense of those terms; but in the case of a section such as that with which the Court has to deal in this case, even if mens rea be required, it would, I think, amount to no more than this that there must be an intention to do that which the Act prohibits. In my view a corporation through its agents can entertain an intention to apply a false trade description to goods. But, in my opinion, a conviction under Section 6 does not involve the proof of any intention. I think that the offence is made absolute. If a person applies a false trade description to goods, he is liable to be convicted, whatever his intention may have been. Intention is material only under the proviso and by way of defence. He can escape the consequences of the act by proving that he acted without intent to defraud. Generally speaking, no doubt, an intent to defraud involves an intent to cheat in some form or other, and to cause loss to someone; but as was pointed out by a Divisional Court in Starey v. Chilworth Gunpowder Company (1889) 24 Q.B.D. 90 in which the Court was construing the) corresponding section in the English Act, there is a sufficient intention to defraud if there is an intention to deceive the purchaser. In that case the accused were liable to supply gunpowder of their own manufacture under a contract. They were unable to manufacture the necessary amount of gunpowder owing to an explosion in their works, and they, therefore, supplied gunpowder, not of their own manufacture, but of an equally good quality, and they described it as of their manufacture. The Court held that although they might have caused no loss to the purchaser, nevertheless they had deceived the purchaser by giving him something for which he had not contracted, and, therefore, there was an intention to defraud within the section. Now, here on the findings of the Magistrate, even giving the words 'with intent to defraud' that restricted meaning, what we have got is a misdescription of goods, without the knowledge that it was a misdescription. On that finding it seems to me impossible to say that there was any intention to defraud. There was not any intent to deceive the purchaser in any way, and I think that on that ground the acquittal was justified.
4. The appeal, therefore, must be dismissed.
5. I agree.