1. The three appellants have been convicted and fined by the Chief Presidency Magistrate, Madras, under S- 51 of the Madras City Police Act for winning from the complainant money by means of fraud or malpractice in betting.
2. The case of the complainant is that he betted with the appellants, that the horse on which he had bet won and that although he thereby became entitled to be paid the money promised by the appellants on the bet, they did not pay him. He complained to the police; and the present case was brought against the appellants under the City Police Act.
3. Section 51, makes it clear that what is punishable under that section is fraud, unlawful device, or malpractice in betting or gaming i.e., the fraud must be during the betting or gaming and not prior to it or subsequent to it. It seems to me that a breach of contract such as the appellants committed by not paying over money that was due to the complainant is not a malpractice or fraud at all, still less an unlawful device, but even if the failure to pay the money could be described by any of those expressions, the fraud or unlawful device or malpractice would be in the fulfilment of the contract and not in the actual betting itself. The betting had taken place before the race was won ; and the paying over of the money was no part of the betting; Playing with a marked card or loaded dice would come under the section; but not anything that occurred after the play or betting had ceased. If a man were induced to bet by one who had no intention of paying anything even if the horse backed should win, the man accepting the money would be guilty of cheating, but the appellants were not charged with that offence, and there is no reason to think that at the time they accepted the money from the complainant they had no intention of paying the winnings to him even though the horse that he had backed should win the race.
4. Two English cases have been referred to. They are both relevant to the question we are considering; because the betting law in England is very much the same as it is in the City of Madras. S- 17 of the Gaming Act, 1845 (8 & 9 Viet. c. 109), is very similarly worded to Section 51 of the Madras City Police Act. The question has been discussed in Rex v. Bailey (1850) 4 Cox. C.C. 390 and Rex v. Governor of Brixton Prison, Ex parte Sjoland and Metzler (1912) 3 K.B. 568 and it was emphasised there that the fraud or malpractice must be in the actual betting or gaming itself.
5. The appellants did not therefore commit any act punishable under Section 51 of the City Police Act. The appeal is consequently allowed and the conviction and sentence set aside. The fines paid will be refunded.