Macpherson and Hill, JJ.
1. The appellant has been convicted under Section 485 and 486 of the Penal Code of having in his possession, (a.) instruments for the purpose of counterfeiting the trade or property mark of the Mercantile Bank of India, Limited; (6) for sale or trade a gold bar bearing a counterfeit impression of the trade or property mark of that Bank.
2. It appears that, on the 14th August, the appellant's shop was searched under a search warrant issued at the instance of the Sub-Manager of the National Bank of India, who had deposed that gold bars were in circulation bearing a counterfeit of the impression on the gold bars imported by his Bank, and that the appellant was suspected of being concerned in this. Nothing was found indicating the commission of any offence in connection with the mark of that Bank, but there was found a bar of gold (Exhibit G) stamped with the words Chartered Mercantile Bank of India, London and China, in the English and Guzrati character, and other words denoting the touch of gold and the names of the London Bullion Brokers: also a stamp or die (Exhibit B) which made an impression similar to the impression on Exhibit G. Mr. Fidler, the Manager of the Calcutta Branch of the Mercantile Bank of India, Limited, who was a witness for the prosecution, deposed that the mark on Exhibit G was a counterfeit of the mark on the gold bars imported by his Bank. No one else claimed any interest in that mark. On the 7th November, after all the witnesses for the prosecution had been examined, the appellant was charged under the sections cited with having in his possession instruments for counterfeiting the trade or property-mark of the National Bank of India, Limited, and also a gold bar bearing a counterfeit impression of the trade or property-mark of that Bank. The witnesses for the prosecution were recalled and cross-examined and on the 12th December, after the cross-examination had been concluded, it was discovered that there was what the Magistrate calls a clerical error in the charges, and that the National Bank of India, Limited, had by mistake been inserted for the Mercantile Bank of India, Limited. New charges were then framed with the corrections necessary to meet that mistake. Mr. Fidler was recalled and examined as a witness for the defence, and on 15th December the appellant was convicted on those charges.
3. It is contended on those facts that there has been no proper trial, and that the conviction is bad on that ground. It must be conceded that the original charges were most carelessly drawn, but there is no reasonable ground for supposing that the appellant was misled by them. The prosecution was based upon the finding of the articles, Exhibits G and B, in his possession; no one ever suggested that any instrument for counterfeiting the mark of the National Bank of India was found in his possession, and Mr. Fidler's evidence went to show that Exhibit G was a counterfeit of the mark, impressed on the gold bars imported by his Bank.
4. The matter is not, however, of much importance as we think the conviction must be set aside on another ground, and that is that it is not proved that the mark in question is the trade-mark of the Mercantile Bank of India, Limited, and, unless this is proved, the conviction cannot stand. It is not attempted to support the conviction on the ground that the mark is a property mark.
5. The case rests almost entirely on the evidence of Mr. Fidler, which in substance amounts to this that the Chartered Mercantile Bank of India, London and China, used to import from England gold bars impressed with the name of that Bank, and other words denoting the touch of gold and the names of the London Bullion Brokers that this impression was a well-known mark in the market, and that when that Bank ceased to do business in 1893 the Mercantile Bank of India as its successor continued to import gold bars with a precisely similar mark. In other words that this mark which was the mark of the Chartered Mercantile Bank of India, London and China, became by transfer, assignment or succession, the mark of the Mercantile Bank of India, Limited, and that the latter Bank occupied with reference to it exactly the same position as the Chartered Bank had occupied. It is enough, however, to say that, assuming this to have been the trade-mark of the Chartered Mercantile Bank, there is in the present case no proof of any transfer or assignment of the mark, and no proof that the one Bank succeeded the other in the sense either that it was a continuation of that Bank under another name, or that it succeeded to the business or acquired the good will of that Bank.
6. Assuming however that this mark, being the trade-mark of the Chartered Mercantile Bank of India, London and China, could after that Bank ceased to do business become by user the trade-mark of the Mercantile Bank of India, there is in this case no sufficient proof of the user necessary to effect that. A mark to be a trade-mark must be a mark used for denoting that the goods are the manufacture or the merchandize of a particular person and the particular person in this case is according to the charges the Mercantile Bank of India. The prosecution had, therefore, to prove that this mark was used for denoting that the gold bars were the manufacture or merchandize of that Bank. The mark in itself does not denote anything of the kind, and it is not necessary that it should do so. But it was originally used to denote something else, and there is no evidence that it had acquired in the market any other meaning or that it was understood to denote that the gold bars upon which it was impressed were the gold bars imported by the Mercantile Bank of India. Except Mr. Fidler, whose evidence is very vague and does not carry the case far enough, no one who has had anything to do with these gold bars has been examined and we do not know what the mark was understood by any person other perhaps than Mr. Fidler, to denote. The mere fact that the Mercantile Bank imported and sold gold bars with this mark impressed upon them, a mark which was not originally theirs, is not in the circumstances of this case sufficient to establish that the mark was the trade-mark of the Bank and the case is really carried no further than that.
7. The conviction must, therefore, be set aside. The result is to be regretted as it is impossible to suppose that the appellant was in the possession of the articles for any honest purpose. He has, however, been charged with and convicted of a particular crime, and that crime must, of course, be strictly proved.