Bangalore District Court
State By Kamakshipalya Police vs Nagesh S/O Muddegowda on 7 November, 2018
IN THE COURT OF V ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AT: BANGALORE
Dated this 07 day of November, 2018
th
:PRESENT:
Shri. SOMASHEKARA .A, B.A.L., LL.M.
V ACMM Bangalore .
CRIMINAL CASE No. 4350/2014
Complainant : State by Kamakshipalya Police
station, Bangalore
(Rep by Sr.A.P.P)
VS
Accused : 1. Nagesh S/o Muddegowda,
Aged about 21 years,
R/at:5th cross road,
Kempegowda Nagara, Byadarahalli,
Magadi main road, Bangalore.
2. Rathan (Splitup)
3. M.C.Channappa,
S/o Chikkanarasegowda,
Aged about 38 years,
R/at: No.69,
1st cross, Raghavanagara,
Srinagara, Bangalore.
(Rep., by Sri.H.K.H & R.S., Advocate,)
2 Criminal case.No.4350/2014
Judgment
1. Date of commencement 28072013
of offence
2. Date of report of offence 28072013
3 Arrest of the accused The accused No.1 & 3 are on
bail
4. Name of the N.H.Ramachandraiah
complainant
5. Date of recording of 19062017
evidence
6. Date of closing of 27102018
evidence
7. Offences complained of Secs.78(a)(6), 80 of KP Act
and sec.420 of I IPC
8. Opinion of the Judge The accused are not found
guilty
9. Complainant by The Learned Sr.APP
10 Accused defence by Sri.H.K.H & R.S., Advocate,
JUDGMENT
The accused have faced trial for the offence punishable Under Secs.78(a)(6), 80 of KP Act and sec.420 of I IPC., upon the charge sheet submitted by Subinspector of Police, Kamakshipalya Police Station, Bangalore.
2. The gist of the prosecution case is reads as under: It is the case of the prosecution that on 28072013 at about 5.00 pm., the complainant and his staff members were Judge Sign 3 Criminal case.No.4350/2014 Judgment enquiring about Cricket Betting near Summanahalli Junction, Kamakshipalya, by the time CW.1/N.H.Ramachandraiah had received credible information that in Balaji Lodge situated at Magadi main road, Sunkadakatte, Bangalore some unknown persons are involving in Cricket Betting and inducing the public through mobile phone and insisting to deposit Cricket Betting amount and thereby cheating the public at large. Upon receipt of the said information the complainant had approached Assistant Commissioner of Police and obtained search warrant to search the said large and at about 8.30 pm., along with panchas the complainant and his staff members have raided on room No.103 and wherein I found that one person was sitting in the said room and by watching the T.V., he was involved in Cricket Betting and as such he apprehended the accused and recover betting amount, mobile phones, one laptop, data card, 11 white sheets, one pen, one dairy and two mobile charges, further he conducted Ex.P.2/Seizure Mahazar in the presence of pancha witness Judge Sign 4 Criminal case.No.4350/2014 Judgment and after completing the formalities, he came to police station and lodged Ex.P.1/Complaint. On the basis of the said complaint police have registered the case in crime No.582/2013 for the aforesaid offences and on the same day the accused was produced before the court and thereafter he enlarged on bail. As usual police have proceeded with the investigation and after its completion they submitted the final report against the accused for the aforesaid offences against No.1 and 3 and accused No.2 has shown as absconding accused. Inspite of issuing NBW the police have not secured the accused No.2 and as such the case against accused No.2 is ordered to be splitup. On the basis of the charge sheet materials my predecessor in office was please to taken cognizance for the aforesaid offences against the accused.
3. On appearance of the accused, all the prosecution papers were supplied to them as provided U/s 207 of Cr.P.C. After hearing the learned counsel for the accused and the learned APP, since there was sufficient material to proceed against the Judge Sign 5 Criminal case.No.4350/2014 Judgment accused No.1 and 3, plea was prepared, readover and explained in the language known to them. They pleaded not guilty and claimed the trial.
4. The prosecution in order to prove its case, got examined the witnesses as PW 1 to 5 and got marked the documents Ex.P1 to 3 and MO No.1 to 8 and closed its case. The statement of the accused U/s 313 of Cr.P.C. was recorded wherein, they have totally denied the incriminating circumstances appearing against them, in the evidence of prosecution witnesses.
5. Heard the arguments on both the sides.
6. Following are the points that arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubts that on 28072013 at about 5.00 pm., in room No.103 of Balaji Lodge, situated at Sunkadakatte, Magadu Road, Bangalore the accused found playing Cricket Betting and thereby you accused have committed the offence punishable U/s 78(a)(6) and 80 of K.P. Act?
Judge Sign 6 Criminal case.No.4350/2014 Judgment
2. Whether the prosecution proves beyond all reasonable doubts that the above said date, time and place the accused induced the public and involved them in Cricket Betting to the effect that if Srilanka win the match he will pay 75 paisa for Rs.1 and in the event South Africa wins the match he will pay 70 paisa for Rs.1 for the customers and thereby cheated the public and committed an offence punishable U/s 420 of IPC ?
3. What order?
7. My findings to the above points are as under:
Point No.1 : In the "Negative"
Point No.2 : As per the final order
for the below given reasons
REASONS
8. POINT NO.1 & 2: These two points are interlinked with each other and as such they are taken up together for common discussion.
It is the case of the prosecution that on 28072013 at about 8.45 pm., in room No.103 of Balaji Lodge situated at Sunkadakatte, the accused No.1 was found playing Cricket betting game and on enquiry the accused disclosed about the involvement of accused No.2 & 3.
Judge Sign 7 Criminal case.No.4350/2014 Judgment
9. The prosecution to bring home the guilt of the accused got examined CW1/Ramachandraiah, the then Police Inspector, CCB, Bangalore. He testified that on 28072013, when he along with his staff were near Summanahalli Junction, by the time he received information that in room No.103 of Balaji Lorge, Sunkadakatte, one person is doing Cricket Betting and upon receipt of the said information he, panchas and staff members i.e., CW.2 to 6 were proceeded to the said lodge at about 8.30 pm., he raided on the said room and the accused No.1 was in room and infront of him he found 17 mobile phones, one laptop, data card and cash of Rs.8,600/, one dairy and two mobile charges and on enquiry the accused discloses that he was involving in Cricket Betting to the effect that if Srilanka win the match he will pay 75 paisa for Rs.1 and in the event South Africa wins the match he will pay 70 paisa for Rs.1 for the customers, who involved in the betting. The said act of the accused is against the law and legal business and as such he lodged Ex.P.1/complaint.
Judge Sign 8 Criminal case.No.4350/2014 Judgment PW.1 is subjected for cross examination, the relevant portion of cross examination is extracted herein below;
" ಸಸಬ ಠಣಯಯದ ಸಸಯಕದಕಟಟ 5 ಕ.ಮಮ.ದದರದಲರಸತತದ. ಸದರ ಅಪರಧ ಸಸಳ ಜನನಬಡ ಪ ಪಧಮಶ ಎಯದರ ಸರ. ಕಮಕಪಳಳದಯದ ಅಪರಧ ಸಸಳ 2 ಕ.ಮಮ.ದದರ ಇರಸತತದ. ದಳ ಸಮಯದಲ ನನನ ಜದತ ಹಜರದದ ಪಲಮಸರಗ ಮತಸತ ಪಯಚರಗ ಲಖತ ನದಮಟಮಸ ನಮಡರಲಲಲ.
ಯವ ಗಣಕಯಯತ ತದಲ ನಪ.2 ನಸ ಚ ಮಡಲಯತಯದಸ
ನ ಬರಳಚಸ
ಹಮಳಲಗಸವದಲಲ. ಮಸದ ಮಲಸ1 ರಯದ 8 ರ ಮಮಲ ಪಯಚರ ಸಹ ಇರಸವದಲಲ. ಜಪತದ ವಸಸತಗಳ ಪಪಕ ಹಣ ಹದರತಸಪಡಸ ಉಳದ ವಸಸತಗಳಸ ಮರರಟ ನಲ ಸಗಸವ ವಸಸತಗಳಸ ಎಯದರ ಸರ".
The above testimony of PW.1 shows that, he has not received any written complaint from any of the publics surrounded to Balaji Lodge and the said place is residential and busy area. In respect of Ex.P.2/Seizure mahazar is concerned, it was computerized copy and as such the learned counsel for the accused has posed a question that in which computer Ex.P.2 got typed. But the witness has clearly stated that I do not from where it got typed, the said admission given by the PW.1 makes it clear that the Ex.P.2 has been created for the purpose of this case.
Judge Sign 9 Criminal case.No.4350/2014 Judgment
10. It is pertinent to note that in the chief examination the PW.1 has not stated whether he had approached his superior officer or the jurisdictional court to get search warrant to search the Lodge in question. In this regard, no documents have been placed by the prosecution to believe that the complainant being police inspector had follow the law in respect of ride, search and seizure of MO.1 to 8 as procedure contemplated by the Code of Criminal Procedure and thus it is clear the complainant has not discharge his duty as per law.
11. PW.3/Ashok and PW.5/Mallegowda are projected as seizure mahazar witnesses, unfortunately, both of them have turned hostile and not supported the case of prosecution and as such the learned Sr.APP cross examined them at length but nothing has been elicited from their mouth, hence, the very ride conducted by the police on accused No.1 creates doubt in mind of this court.
12. PW.4/Ravikumar, Head Constable, CCB, Bangalore has testified that on 28072013 at about 8.00 pm., when he was Judge Sign 10 Criminal case.No.4350/2014 Judgment in CCB office by the time the CW.1 received information that in room No.103 of Balaji Comfort Lodge, the accused by name Nagesh was involving in Cricket Betting game and as such the CW.1 had taken him on CW.5 along with panchas to the said place and raided on the accused and recovered MO.1 to 8 from his possession.
13. During the course of cross examination he categorically stated that when CW.1 was received information when he was in CCB, Police Station. The said testimony of PW.4 is contrary to the evidence adduced by the PW.1. According to PW.4, he was in CCB police station, but as per the say of PW.1, when he along with his staff was near Summanahalli Junction, by the time they received information of this case. Thus, it is clear the evidence of PW.4 is contrary with the evidence of PW.1 and there is no corroboration evidence on record to believe the case set out by the prosecution. Therefore, it is my opinion that the entire case of the prosecution falsifies from the testimony of PW.4.
Judge Sign 11 Criminal case.No.4350/2014 Judgment
14. CW.2 /Vasimulla, PSI., is the investigation officer of this case, he testified that on 15092013, he received file of this case to conduct further investigation of this case. He recorded statements of CW.2 to 6 and after completion he submitted charge sheet against the accused. His evidence is nothing but the part of investigation conducted by him and as such same is formal.
15. The allegation against the accused person is that the accused No.1 was found one playing Cricket Betting illegally for his wrongful gain. The term gaming and game of chance has been defined under Section 2(7) of the Act, which reads as under:
"Gaming" does not include a lottery but includes all forms of wagering or betting in connection with any, game of chance, except wagering or betting on a house race, (run on any race course within or outside the State) when such wagering or betting takes place, Judge Sign 12 Criminal case.No.4350/2014 Judgment on the day on which such race is run; and in an enclosure set apart for the purpose in a race course by the licencee of such race course under the terms of the licence issued under Section 4 of the Karnataka Race Courses Licensing Act, 1952 (Karnataka Act VIII of 1952; and) between any person being present in such enclosure, on the one hand and such licencee or other person licensed by such licencee in terms of the aforesaid licence on the other in such manner and by such contrivance as may be permitted by such licence. Explanation,In this clause,
(i) "Wagering or Betting", includes the collection or soliciting of bets, the receipt or distribution of winnings or prizes, in money or otherwise, in respect of any act which is intended to aid or facilitate wagering or such collection, soliciting receipt or distribution;
(ii) "Game of chance" includes a game of chance and skill combined and a pretended game of chance or of chance and skill combined, but does not include any athletic game or sport;
Judge Sign 13 Criminal case.No.4350/2014 Judgment
16. Now let me reverting to the factual scenario of the present case to consider whether evidence led by the prosecution is sufficient to constitute the essential ingredients of offence punishable under Sections 78 and 80 of The Karnataka Police Act. It is very important to note that, prosecution has not placed any Iota of evidence to show that, who is the owner of the said lodge. Nothing has been placed on record. Prosecution has also not placed any record to show that, said lodge is used as gaming house for betting.
17. It is also pertinent to consider that, in seizure mahazar Ex.P2 it is stated that, 11 white sheets were lying on the bed. It is also worthwhile to note that, PW.1 and 4 in their cross examination has stated that, Cricket betting cannot be played alone. As per the prosecution the accused was making transaction through mobile phone regarding betting, but the cal details of the accused is not placed by the investigation officer to show that the accused had made mobile phone calls to customers and assured them to pay access amount in the Judge Sign 14 Criminal case.No.4350/2014 Judgment event of either Srilanka or South Africa win over them. In the absence of this evidence, accused cannot be fastened with criminal liability for the offence punishable under Section 78 and 80 of The Karnataka Police Act.
18. In this connection, learned counsel for the accused has placed reliance on the decision of Hon'ble High Court of Karnataka reported in AIR 1997 (1) Kar.L.J. page 274 (Eranna & Others Vs. State of Karnataka), wherein it has been held as under:
"Karnataka Police Act, 1963, Ss.79 & 80Charge of playing a game of chanceproof The charge against the accused were that they were found playing the game of cards known as "Andar Bahar" in a club and that Andar Bahar was a game of chance.
Held unless the prosecution proved how the game of Andar Bahar is played and in what manner bettings are recorded, it could not be inferred that it was a pure and simple game of chance and not a game of skill.
Judge Sign 15 Criminal case.No.4350/2014 Judgment AIR 1954 MB 145 rel on (1969) 1 MysLJ 398 and (1971) 2 MysLJ 187 are not authorities to hold that Andar Bahar was a game of chance."
19. Learned counsel for the accused has also placed reliance on the decision reported in 1996 Crl.L.J. 1024 (Madras) (Siddaraj and others V. State of Tamil Nadu and another), wherein it has been held as under:
"As per Section 8 of the Tamil Nadu Gaming Act, whoever opens, keeps or uses or permits to be used any common gaming house for gaming therein is liable to be punished. And under Section 9 of the Act, whoever is found gaming or present for the purpose of gaming in a common gaming house is guilty. And any person found in any common gaming house during any gaming or playing therein shall be presumed until the contrary is proved to have been there for the purpose of gaming. The existence of a common gaming house is an essential prerequisite for initiation of proceedings under Sections 8 and 9 of the Act. In the absence of Judge Sign 16 Criminal case.No.4350/2014 Judgment any common gaming house, no offence is made out under these two sections.
And the definition of expression " Common gaming house" is S.3 of the Act runts as under: "Common gaming house" means any house room, tent, enclosure, vehicles, vessel or any place whatever in which cards, dice, tables or other instruments of gaming are kept or used for the profit of gain of the person owning. Occupying using or keeping such house, room, tent, enclosure, vehicle, vessel or place whether by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure, vehicle vessel or place or otherwise howsoever, and includes any house, room; tent, enclosure, vehicle vessel or place opened, kept or used or permitted to be opened, kept or used for the purpose of gaming."
20. Reverting to the facts of the present case, as already noticed that, either the averments of First Information Statement or the evidence led by the prosecution does not disclose that, lodge is not a common gaming house. In the absence of materials to show that, lodge is a gaming house, Judge Sign 17 Criminal case.No.4350/2014 Judgment indictment of the accused for the offences punishable under Sections 78 and 80 of The Karnataka Police Act, is not sustainable.
21. Learned counsel for the accused has also placed reliance on the decision reported in 1999 Crl.L.J. 1179(Kerala) (P.K. Anthumayi and others Vs. The State), wherein it has been held as under:
"4. Admittedly, the building XI/172 belongs to the first petitioner. So, it is a private house. There is no mention of any common gaming house in the first information report. The only information the Sub Inspector of Police got was that the petitioners were gaming in the house of the first petitioner. Even if the petitioners were gaming in the house of the first petitioner, since it is not alleged to be a common gaming house, it cannot constitute an offence. In Kunhilkannan Vs. Assistant SubInspector of Police, 1985 Ker LT 484, this Court held as follows: "For invoking Ss.7 and 8, one of the conditions precedent is that there must be a common gaming house. Gaming in a private building or place is not Judge Sign 18 Criminal case.No.4350/2014 Judgment made offence. There is nothing to show that it is intended to be prohibited also. The words used are not "gaming house", but "common gaming house".
Common gaming house indicates that it is a place intended and used frequently as a common place for the purpose. The existence of such place and gambling conducted there may be public nuisance and the purpose of the act is to prevent the same and make violations punishable as offence."
This decision is squarely applicable to the facts of this case. The learned Public Prosecutor fairly conceded that there is no allegation that the petitioners have committed offence in a common gaming house. Petitioners were found playing cards for profit in a private building in the possession of the first petitioner. That is not an offence coming under Sections 7 and 8 of the Act."
22. Learned counsel for the accused has placed reliance on the ratio laid down by the Hon'ble Supreme Court of India in 1986 Crl.L.J. 1973 (Bhimrao Trimbalkrao Ingle and others V. State of Maharashtra), wherein it has been held as under:
Judge Sign 19 Criminal case.No.4350/2014 Judgment " What is not a 'common gaming house' in fat in the light of evidence cannot become a common gaming house by reason of presumption under S.7. What the prosecution is required to establish by recourse to the presumption is that the room is a 'common gaming house' as defined in the dictionary of S.3(ii) that is to say, that the occupier is collecting charges for the use of the room. When evidence is adduced and the prosecution fails to establish that such charge are in fact collected, it cannot become a 'common gaming house' because of the presumption. An offence under S.5 can be committed only provided the persons concerned were gaming or were present for the purpose of gaming in a 'common gaming house'. In absence of such finding the accused are entitled to acquittal. Decision of Bombay High Court Reversed."
23. In the light of principles emerging from the decision relied upon by the learned counsel for the accused, if the present case is viewed from any angle, prosecution has utterly failed to prove beyond all reasonable doubts, the charges leveled against the accused. Hence, I answer the Point No.1 in the "Negative".
Judge Sign 20 Criminal case.No.4350/2014 Judgment
24. POINT No.2: In the foregoing reasons, I proceed to pass the following: O R D E R Acting under section 248(1) of Cr.P.C. the Accused No.1 and 3 are hereby acquitted for the offences punishable under Secs.78(a)(6), 80 of KP Act and sec.420 of IPC.
Their bail bonds and surety bonds shall stands cancelled.
Accused No.1 & 3 shall execute personal bond of Rs.10,000/ each towards compliance of section 437(a) of Cr.P.C.
Keep the copy of the judgment in splitup C.C.No.7788/15.
(Dictated to the stenographer, transcribed by her and corrected by me, then pronounced in the open court, on this 07th November, 2018) (Somashekhar.A) V ACMM, Bangalore Judge Sign 21 Criminal case.No.4350/2014 Judgment ANNEXTURE
1. Witnesses examined by the prosecution.
P.W.1 Ramachandraiah 19062017
P.W.2 Vasimulla 19062017
P.W.3 Ashok 11012018
P.W.4 Ravikumar 19072018
PW.5 Mallegowda 27102018
2. List of the documents exhibited for the prosecution.
Ex.P.1 Complaint
Ex.P.1(a) Signature of PW.1
Ex.P.2 Mahazar
Ex.P2(a) Signature of PW.1
Ex.P2(b) Signature of PW.4
Ex.P3 Statement of PW.3
3. List of the witnesses examined for defence. NIL
4. List of the Documents exhibited for defence.
NIL
5. List of the MOs marked in the evidence.
MO.1 : Black Bag
MO.2 : Rs.8,600/ cash
MO.3 : 17 mobile phones
MO.4 : Laptop and Data Card
MO.5 : 11 sheets
MO.6 : one Pocket Dairy
MO.7 : one pen
MO.8 : Two mobile chargers
(SOMASHEKAR. A)
V ACMM, Bangalore.
Judge Sign