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In Re: Somasundaram Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1948Mad264; (1947)2MLJ541
AppellantIn Re: Somasundaram Chettiar and ors.
Cases Referred(see The Pharmaceutical Society v. London and Provincial Supply Association
Excerpt:
.....stressed on the fact that the club was intended for ordinary recreation purposes just like other clubs and it also provided card games with stakes and as it was a bonafide club intended for the recreation of its members, it could not fall within the category of a 'common gaming house. ' i am unable to see how it follows logically that because the club also provides for games like tennis, it ceases to be a 'common gaming house' if it otherwise satisfies the conditions found in section 3 of the act......under section 9 of the act for being found gaming, or present for the purpose of gaming, in a ' common gaming house' and accused 18 and 19 were convicted under section 8 of the act for keeping, or permitting to be used, a ' common gaming house.' on appeal, the sub-divisional magistrate, devakottai, set aside the conviction against accused 8 to 17 but confirmed the conviction against the rest of the accused. accused 1 to 7, 18 and 19 are the petitioners in this court.2. it has now been found-and it is not disputed-that at 5-15 p.m., on 31st january, 1946, accused 1 to 7 were actually playing a game of cards called ' three cards ' in the precincts of the lakshmi club at karaikudi. accused 8 to 17 were found merely watching the gaming and they were acquitted by the appellate magistrate.....
Judgment:
ORDER

Rajamannar, J.

1. 19 accused were tried by the Additional Sub-Magistrate,Tiruppattur,for offences under the Madras Gaming Act, 1930. Accused 1 to 17 were convicted under Section 9 of the Act for being found gaming, or present for the purpose of gaming, in a ' common gaming house' and accused 18 and 19 were convicted under Section 8 of the Act for keeping, or permitting to be used, a ' common gaming house.' On appeal, the Sub-Divisional Magistrate, Devakottai, set aside the conviction against accused 8 to 17 but confirmed the conviction against the rest of the accused. Accused 1 to 7, 18 and 19 are the petitioners in this Court.

2. It has now been found-and it is not disputed-that at 5-15 p.m., on 31st January, 1946, accused 1 to 7 were actually playing a game of cards called ' three cards ' in the precincts of the Lakshmi Club at Karaikudi. Accused 8 to 17 were found merely watching the gaming and they were acquitted by the appellate Magistrate on the ground that it could not be concluded that they were there for gaming purposes only. Accused 18 is the clerk of the club and was found present at the game by the Sub-Inspector of Police, Karaikudi, who made a raid of the club premises on the day. He had with him a sum of Rs. 175 collected from the players. Accused ig is the secretary of the club who was however absent at the time when the raid was made.

3. The most important question which arises for decision in the case is whether the premises of the Lakshmi Club, and in particular the room in which the play was going on, is a ' common gaming house ' within the meaning of Section 3 of the Madras Gaming Act of 1930. The definition of a ' common gaming house '' in that section so far as it is relevant to this case is as follows

common gaming house ' means any house, room...or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using, or keeping such house, room...or place, whether by way of charge for the use of instruments of gaming or of the house, room...or place or otherwise howsoever, and includes any house, room...or place, opened, kept or used, or permitted to be opened kept or used, for the purpose of gaming.

4. Both the trial and the appellate Magistrates have held that the precincts of the Lakshmi Club would fall within the definition. Mr. K. V. Ramachandra Aiyar, the learned advocate for the petitioners, attacked the conclusion of the lower Courts . in several ways. He first contended that the club was not a ' person ' within the meaning of Section 3 but did not try to support his contention by any authority or argument. It appears to me to be impossible to contend that the club is not a ' person.' Prima facie the word ' person ' includes a natural person as well as an artificial person like a corporation (see The Pharmaceutical Society v. London and Provincial Supply Association, Ltd.(1880)5 A.C. 857 . Apart from the prima facie meaning, Section 3, Sub-section (22) of the Madras General Clauses Act which applies to the Madras Gaming Act defines a 'person' thus

'person' shall include any company or association of individuals, whether incorporated or not.

5. That this is a familiar legal conception even for purposes of penal provisions is clear from Section 11 of the Indian Penal Code according to which the word ' person' includes any company or association or body of persons, whether incorporated or not. The Lakshmi Club is admittedly a society registered under Act XXI of 1860.

6. A society registered under that Act becomes a corporate body. The property, move able and immoveable, belonging to a society so registered, if not vested in trustees,, shall be deemed to be vested for the time being in the governing body of such society. Such society may sue or be sued in the name of the president, chairman or principal secretary, or trustees as shall be determined by the rules and regulations of the Society, and, in defect of such determination, in the name of such,person as shall be appointed by the governing body for the occasion. It cannot be contended that a corporate body like the Lakshmi Club registered under the Societies Registration Act is not a ' person ' within the meaning of Section 3 of the Madras-Gaming Act.

7. It was next contended that the Club cannot be said to have kept or used the card, tables etc., for profit or gain. In dealing with this contention it shall be noted that the profit or gain according to the definition should be to the person owning, occupying, using or keeping the house or room. As I have already held that the Club is a 'person', the question is whether the Club derives any profit or gain either by way of a charge for the use of the instrument of gaming or of the house or room, etc. Mr. Ramachandra Aiyar attempted to contend that the condition required according to Section 3 is not satisfied because no individual member is entitled to receive any profits from the society. He also relied upon the provisions embodied in Section 14 of the Societies Registration Act that upon the dis solution of any society registered under the Act, the surplus assets shall not be paid to, or distributed among the members of the society, but shall be given to some other society. This contention involves mixing up the club as an entity with its members who have an individual existence apart from the society. The relevant question is not whether any member of the club makes a profit but whether the club as a 'person' occupying, or using or keeping the house or room, makes a profit or gain.

8. This question is essentially a question of fact, and both the lower Courts have found that the premises of the Club was utilised for gaming purposes for the profit of the club. There is ample evidence to support this finding. It is in evidence that a charge of Re. 1 or Rs. 2 (there is some conflict about this) was made for every sitting from each player. Ex. P-10 shows that there were two sittings and the club collected Rs. 14. Ex. P-9 shows that sitting fees of an amount of Rs. 14 was collected from seven players. It is in the evidence of P. W. 1 who was a former president of the club that the expenditure of the club will be about Re. 1 in respect of card packets. Mr. Ramachandra Aiyar suggested that the amount of Re, 1 or Rs. 2 collected from each player represented the cost of the playing cards but not only is that suggestion not borne out by the evidence but it is controverted by the evidence of P. W. 1. It is impossible to accept the suggestion that one or two card packets cost anything like Rs. 14 in 1946. The petitioners should have shown, by producing the accounts of the club, the expenditure incurred by the club on account of the cards playing and the income from the sitting fees. Though the prosecution summoned the accounts of the club they were not produced and an allegation was made that the Sub-Inspector seized all the accounts. This allegation was, as observed by the trial Magistrate, made recklessly because when P. W. 2, the Assistant Commercial Tax Officer and P.W. 6 the Sub-Inspector of Police who made the raid, were being examined they were not asked if the accounts of the Club had not been seized by them. In the absence of the accounts, there is: no reason not to act upon the evidence of P. W. 1 and on the general probabilities. There was also evidence that besides the members, outsiders were allowed to participate as guests. Even from them the sitting fee was collected, 'vide Ex. P-10 and Ex. P-11. The Club derives enormous income by the collection of sitting fees and this income, after making due allowance for the cost of the playing cards, must be taken to be the profit or gain made by the Club. In fact the real income of the Club appears to be this profit. It was faintly suggested by Mr. Ramachandra Aiyar that the fee collected from each player is in return for the amenities of the Club which the player enjoys ; but he was unable to point out any basis for this contention in the evidence. Mr. Ramachandra Aiyar stressed on the fact that the Club was intended for ordinary recreation purposes just like other clubs and it also provided card games with stakes and as it was a bonafide club intended for the recreation of its members, it could not fall within the category of a ' common gaming house.' I am unable to see how it follows logically that because the Club also provides for games like tennis, it ceases to be a 'common gaming house' if it otherwise satisfies the conditions found in Section 3 of the Act. The conclusion of the lower Court is therefore right.

9. On the finding that the premises of the Club is a 'common gaming house' the conviction of accused 1 to 7 must stand. Accused 18 is the clerk who was left in charge of the Club in the absence of the Secretary. He was, as already mentioned, found with an amount of Rs. 175 which had been collected from the members. He must therefore be held to have assisted in conducting rthe business of a ' common gaming house.' He may also be said to have permitted the Club to be used as a ' common gaming house ' as in the absence of the secretary he was the person who was in charge of the club premises. Accused 19, the secretary himself, would certainly be held liable under Section 8 of the Act as a person who permitted the Club to be used as a ' common gaming house.' There is in evidence a resolution of the club by which the secretary is authorised to collect sitting fees and the stake amounts from the card players and distribute them. No doubt it is arguable that a mere servant or at tender may not be punishable under any sections of the Act if he is not actually taking part in gaming but a clerk and secretary would not fall within that class of servants. The convictions of accused 18 and 19 also must stand.

10. The revision petition is dismissed.


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