Skip to content


K.T.K.A. Alagappa Chettiar and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1932Mad678
AppellantK.T.K.A. Alagappa Chettiar and ors.
RespondentEmperor
Cases Referred and King Emperor v. Musa
Excerpt:
- - at the best the omission of these words can only mean that in spite of there being no evidence to the contrary the court need not accept them as conclusive evidence but it cannot mean that the prosecution cannot succeed without calling other evidence. (1) that a game of chance could not be played without hollow bamboo stumps--a perfectly ridiculous contention and (2) that nattukottai chettiars never play games of chance;.....last preceding section, or any person found therein shall be evidence that such place is used as common gaming house, and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the police officer or any of his assistants.2. section 11 says:nothing in sections 5 to 10 of this. act shall be held to apply to games of mere skill wherever played.3. it was argued that the ' evidence ' referred to in section 6 is not presumptive evidence and that the omission of the words ' until the contrary be proved ' which are found in section 9 shows this. the corresponding section in the bengal public gambling act 2 of 1867, section 6, says:when any cards, dice, gaming table, cloth, boards or other instruments of gaming are found in any house,.....
Judgment:
ORDER

Walsh, J.

1. The six accused in C.C. No. 81 of 1931 on the file of the Taluk Magistrate of Tirupathur were convicted of an offence Under Section 9, Madras Gambling Act, 3 of 1930. The convictions were confirmed on appeal. Against this revision petitions are filed by accused 1, 3 and 6. Mr. Mocket appears for accused 1 and accused 3 and 6 are represented by Mr. Jayarama Ayyar. The facts of the case are stated in the judgments of the lower Courts. They are briefly these: P.W. 2. who was on inimical terms with accused 6, gave information to P.W. 1, the Sub-Inspector of Police, Karaikudi, that gambling was going on in the house of accused 6. P.W. 1 applied to the Deputy Superintendent of Police for a warrant and with this he raided the house at 8 15 p.m. on 20th December 1930, accompanied by a Sub-Inspector, four Head constables and three constables. All the six accused were seated on a carpet and a rattan mat in a raised dais in a circle. Each had a small heap of cholis or small shells in his front and each had cards in his hands. There were cash Rs. 3-12-6 and currency notes for Rs. 80 on the carpet and a small casket M.O. No. 1, known as ' Table Contribution Box ' ' Mesai kasu petti ' in which the fees or the commission due to accused 6 were put. It was locked and on the request of P.W. 1 it was opened by accused 6 and it contained a five rupee note, cash Rs. 1-14-0 and 115 cholis and 6 mandys. Two almirahs which were locked were opened by accused 6. In one of them was found M.O. No. 14, another table contribution box. There were also two dozen packs of cards. The main contention in this case is that the onus of proving that the cards etc., were used for the purposes of gaming rests upon the prosecution and that it has not proved it. Alternatively it is argued that if the prosecution has given evidence to this effect, the accused have rebutted the same. The important sections in this connexion are 6 and 11. Section 6 runs:

Any cards, dice, gaming table or cloth, board or other instruments of gaming found in any place entered or searched under the provisions of the last preceding section, or any person found therein shall be evidence that such place is used as common gaming house, and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the Police Officer or any of his assistants.

2. Section 11 says:

Nothing in Sections 5 to 10 of this. Act shall be held to apply to games of mere skill wherever played.

3. It was argued that the ' evidence ' referred to in Section 6 is not presumptive evidence and that the omission of the words ' until the contrary be proved ' which are found in Section 9 shows this. The corresponding section in the Bengal Public Gambling Act 2 of 1867, Section 6, says:

When any cards, dice, gaming table, cloth, boards or other instruments of gaming are found in any house, tent, room, space or walled enclosure entered or searched under the provisions of the last preceding section, or about the person of any of those who are found therein, it shall be evidence, until the contrary is made to appear that such house, tent, room, space or walled enclosure is used as a common gaming house, and that the person found therein were there present for the purposes of gaming....

4. Section 8 of the English Act of 1845, 8 and 9 N.C. 109 is as follows:

Where any cards, dice...shall be found in any house...suspected to be used as a common gaming house and entered under a warrant or order...it shall be evidence, Until the contrary be made to appear, that such house...is used as a common gaming house ....

5. I am unable to see that the omission of these words means that the prosecution is bound to put in further evidence than the articles themselves, It might even be argued that their omission makes the presumption irrebuttable but it is not necessary to go to this extent and in view of Section 11, I should feel considerable reluctance in doing so. At the best the omission of these words can only mean that in spite of there being no evidence to the contrary the Court need not accept them as conclusive evidence but it cannot mean that the prosecution cannot succeed without calling other evidence. It needed no special section to say that material objects found in a house raided by the police can be used as evidence in the same way as any other material objects can be used and that is the interpretation of the section which I am asked by the petitioners to accept. The latter part of the section appears to me to put the matter beyond doubt. There it is stated that the existence of gaming instruments

shall be evidence that such place is used as a common gaming house, and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the police officer or any of his assistants.

6. How is it possible, if the police officer or his assistants have not seen the gaming, for them to discharge the onus of proving that the articles were used for the purpose of gaming if they must adduce additional evidence? I am told that the section means that in that case they must prove it by outside evidence. That would necessitate the extraordinary presumption that where there is police evidence available no other evidence can be offered by the prosecution or that is only in default of police evidence that such evidence is admissible. It seems to me that the section is capable of only one reading and that is that the mere finding of the articles mentioned therein raises a presumption on which the Court can act. As I said it is unnecessary for the purpose of this case to find whether in the absence of evidence to the contrary the Court must presume that the persons found therein were present for the purpose of gaming and that the plea is a common gaming house. It is sufficient if it can use the evidence at all. As regards the second point, whether the defence evidence has rebutted the presumption, the question is one of fact and I see no reason whatever for differing from the view taken by the lower Courts. In the light of Hari Singh v. King Emperor [1907] 6 C.L.J. 708 and King Emperor v. Musa [1917] 40 Mad. 556, it would probably be only necessary for the accused to prove that the game which was being played was one mainly of skill but no evidence was let in to show that the game which was being played there was one mainly of skill. The petitioners have not typed the defence evidence on the point; but it is summarised in the first sentence of para. 10 of the trial Court's judgment, and the correctness of that summary has not been disputed. It runs:

Evidence has been let in to show that only playing dice with hollow bamboo stamps constitute game of chance, and that plays of the kind in which Nattukottai Chettiars indulge, are not games of chance but games of skill.

7. So the attempted defence consisted of two propositions: (1) that a game of chance could not be played without hollow bamboo stumps--a perfectly ridiculous contention and (2) that Nattukottai Chettiars never play games of chance; that would mean that no Nattukottai Chetti can be convicted of gaming. The Court was right in refusing to believe such evidence. It may be noted that the cards played with included two jokers. Accused 6 being admittedly the owner of the house which Under Section 6 may be presumed to be a gaming house, is obviously guilty under that section also, for he is the keeper of a common gaming house. A special case on the facts pleaded for accused 1 is that he is a respectable person and that his name is not mentioned in Ex. D, by P.W. 2 as a frequenter of the gaming house. The reason given by him for his being in that house on that day was disbelieved. That is a question of fact, and moreover, the lower Courts were, in my opinion, absolutely justified in rejecting that story. He was found with cards in his hands. There were six piles of money which would indicate that six persons were engaged in gaming. As remarked by the trial Court, the evidence of D. W's. 2, 3 and 4 contradicts the evidence of D. W's. 11 and 12; moreover if the story of D. W's. 2, 3 and 4 were true accused 1 would have represented the matter to the police at once saying that his comrades were waiting outside, who would have confirmed the truth of this statement. I see no reason to interfere in revision. The petitions are dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //