1. There is no dispute about the faces of these cases which are that the National Bank of India sells gold bars in the Calcutta markets bearing a stamp showing the name of the bank in English and Guzrati with the words '100 touch' in Guzrati and the name3 of the bullion brokers, whoever they may be, in English. On 10th and 19th March 1926, certain men employed by the bank bought on each occasion one gold bar from the shop of the petitioner Akshoy Kumar De and these bars bore the counterfeit mark of the National Bank upon them. Further, the police searched the petitioners' shop on 22nd March and found several other gold bars bearing this mark and some dies for stamping the mark upon them. The defence taken was that the gold bars sold are composed of what is known in the market as bator gold and that the petitioners had sold bars of this make under this particular mark in the open market for years past. The learned Chief Presidency Magistrate found that, though it was true that the firm had been using the counterfeit mark for some time, they had not succeeded is establishing this defence or their further defence that other gold bars bore the same mark as the English gold bars of the National Bank, and he further found that, by their use of the counterfeit mark, the accused firm had the opportunity of deceiving others and that it was no answer to the charge to say that the counterfeit would not deceive an expert. He, therefore, held that the mark in question was the property of the National Bank used by them to distinguish their English gold and that the mark used by the accused firm was counterfeit. These findings have not been challenged before us.
2. It has, however, been argued before us, as it was argued in the Court below, that the prosecution is barred by Section 15, Merchandise Marks Act (4 of 1889).
3. This section is in the following terms:
No such prosecution as is mentioned in the last foregoing section shall be commenced after 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.
4. Sir Benod Mitter, who has appeared for the petitioners contends that, as the Magistrate has found that the sale of gold bars under the counterfeit mark has continued for many years, the offence must have been known to the bank and, therefore, as the bank took no action within the statutory period a prosecution will not lie. He has relied upon the case of Ruppell v. Ponnusami Tevan  22 Man. 488, and the two cases decided by the lower Burma Chief Court, namely, the cases of Abdul Majid v. Emperor  9 L.B.R. 31 and Mahomed Jawa v. H.S. Wilson  4 Bur. L.T. 83. Mr. Basu for the Crown argues, on the other hand, that the offence specified in Section 15, Merchandise Marks Act, is the particular offence charged and that it makes no difference whether the original infringement took place two or five or ten years ago. He also says that the words 'first discovery' mean when the complainant first discovered the offence and that he was to take action within one year from that time. The point is by no means free from difficulty; but we are on the whole satisfied that Mr. Basu's contention is correct. We think that the word 'offence' means 'the offence charged.' If it had meant only the infringement of the trade-mark, we think that the section would have said so. The charge here is under Section 486, I.P.C., that is, for selling goods marked with a counterfeit trade-mark. The complainant first discovered that this offence took place on 10th March 1926 and he lodged his complaint within a month of that date. It has been contended that the bank must have known of the use of this counterfeit trade-mark long ago. But apart from the suggestion that their broker Jagannath must have known of it there is no evidence as neither he nor Krishna Lai of the other firm of brokers have been called as witnesses by the defence. On the other hand we have the definite denial by Mr. Collier the Accountant, that the bank knew anything about it. We think, therefore, that the first discovery, to use the words of the section, on the part of the bank did not take place before 10th March 1926 when Aratoon purchased a gold bar from the petitioners' shop.
5. Sir Binod Mitter has next contended that the petitioner Akhoy Kumar De personally has no connexion with the firm. We think it sufficient to say that when the firm bears his name and the books show payments of many sums to him and when moreover in his petition he describes himself as the proprietor of the firm, we consider that his connexion with the firm is well established.
6. Sir Benod next contends that the petitioner Nirode Baran Dutt cannot be held liable under this prosecution as all that he is said to have done was to have handed) over one of the bars to the petitioner Gokul Chunder Sil and nothing more. But the evidence shows that he actively promoted the sale and was, in fact, as the learned Magistrate has found, the broker.
7. Sir Benod has finally urged that the order made by the learned Magistrate for the forfeiture of the gold bars found by the police in the shop which are stated to be worth about Rs. 4,000 is too severe. The learned Magistrate was no doubt, competent under Section 9, Merchandise Marks Act, to make the order. But we do not think that, in the circumstances of this case, it was a necessary order. We think it will be sufficient, therefore, while setting aside the order of forfeiture, to direct that the bars be restored to the petitioners, subject to their satisfying the Magistrate that the offending marks have been obliterated. With this modification, Rule 1160 is discharged.
8. With regard to the petition for enhancement of sentence on the above-mentioned petitioners (Revision Case No. 1208 of 1927) we are of opinion that no action is necessary. That application is accordingly rejected.