N.C. Talukdar, J. - (1.) This appeal being Cr. App. No. 192 of 1964 arising out of case No. P.R. 2865 of 1958 and the connected Rule, being Cr. Rev. No. 355 of 1964, arising out of case No. P.R. 2424 of 1958, involve the same points and evidence and so they are taken up together. In the Court below also the two cases were tried together and disposed of by the same learned Magistrate. The appeal is by the company, the Calcutta Ready and Forward Market Association Ltd., represented by Gangadhar Chamaria, and is against the order dated January 17, 1964, passed by Sri M. B. Mukherjee, Presidency Magistrate, Fourth Court, Calcutta, convicting the company under Sec. 3 of the West Bengal Gambling and Prize Competitions Act, 1957 (XXXII of 1957), and sentencing it to pay a fine of Rs. 250, in default to suffer S.I. for 12 days. The Revision case is at the instance of, the 13 directors of the said company and is against, the same order dated January 17, 1964, passed by the learned Presidency Magistrate, Fourth Court, Calcutta, convicting them under Sec. 3 of the West Bengal Gambling and Prize Competitions Act, 1957, and sentencing them to pay a fine of Rs. 200 each, in default to suffer S.I. for 10 days each.
(2.) The case has had a chequered history but the facts leading on to the Appeal and the Revision may be put in a short compass. The Calcutta Ready and Forward. Market Association Ltd., which has its office and the principal place of business at 149 Cotton Street, Calcutta, is a company limited by guarantee without any share capital and registered under the Indian Companies Act on November 14, 1955. There is a board consisting of 13 directors and the Association has its printed bye -laws relating to transactions in silver bar, passed by the Board of Directors for regulating the transactions of the Association as per its articles. The prosecution case briefly is that on the receipt of certain information the Police raided the premises No. 149 Cotton Street, Calcutta, on October 29, 1958, and arrested some persons found gambling there, in contravention, of the provisions of the West Bengal Gambling and Prize Competitions Act, 1957. Some documents, papers, cash memos., share scrips etc. were seized and an investigation followed. Several cases were started thereafter and the facts thereof are rather involved. Case No. P.R. 2865.of 1958, out of which the present Appeal arose, is against the company, represented by Sri Gangadhar Chamaria, the president of the Association, while cases Nos. P.R. 2424 -1 and P.R. 2424 -11 of 1958, relating to the directors, were subsequently rolled up into one as case No. P.R. 2424 of 1958 under the direction of the High Court. The connected Rule No. 355 of 1964 arises out of this case. Another case, being case No. 2428 of 1958, was instituted against some of the directors while case No. 2423 of 1958 was still pending at the time under Sec. 4 of the West Bengal Gambling and Prize Competitions Act, 1957, against some of the persons alleged to have been found gambling in the premises referred to above. Case No. 263 of 1959, which was against 19 accused persons who were found gambling at the premises, was ultimately quashed. As a result of the investigation, the accused persons as also the company were placed on trial before the learned Presidency Magistrate, Fourth Court, Calcutta, to answer charges under Sec. 3 of the West Bengal Gambling and Prize Competitions Act, 1957 (XXXII of 1957). The defence case, inter alia, is that the accused persons are not guilty; that the Association is a company limited by guarantee and registered under the Indian Companies Act, authorised by its memorandum to, inter alia, conduct and regulate forward trading, building, stocks and shares etc. for promoting business; that the company has its own bye -laws under the articles and memorandum of association and forward trading in silver and stocks in terms of the transactions and are entered into by and between the members of the. Association, pursuant to the orders received therefore by them from third parties and/or their clients and customers; that such bye -laws have received the approval of the Central Government under Sec. 11 of the Forward Contracts (Regulation) Act, 1952; that the delivery of silver is intended and is actually effected on due date ; that the transactions that take place are not in the nature of wagering contract or gambling transactions in imaginary silver bars, violating any of the provisions of the West Bengal Gambling and Prize Competitions Act, 1957 ; and that the transactions conform to the provisions of a Central Act, viz. Act LXXIV of 1952, whereunder specific penalties are provided for contraventions, but no such penalty was incurred and prosecution started. Fifteen witnesses were examined on behalf of the prosecution while two witnesses were examined on behalf of the defence and several documents were proved by both the parties. As a result of the trial, Sri M. B. Mukherjee, Presidency Magistrate, Fourth Court, Calcutta, by his order dated January 17, 1964, convicted and sentenced the company as also the directors as mentioned above. The said orders passed in the same judgment have been impugned and form the subject -matter of the present Appeal as well as the Revision.
(3.) Mr. Ajit Kumar Dutt, Advocate (with Mr. Prasun Chandra Ghosh, Advocate), appearing on behalf of the accused in both the cases made a nine -fold submission. The first contention of Mr. Dutt relates to procedure and refers to the fact that the learned Presidency Magistrate's refusal to grant a reasonable time to the defence for producing the witnesses on its behalf, resulted ultimately in their being not available for cross -examination before arguments were heard. Mr. Dutt in this context submitted that although the said failure was due to no fault on the part of the defence, the learned trying Magistrate, nonetheless, referred to the same in his judgment as a default on the part of the accused persons. The second contention of Mr. Dutt & that the company is not liable under Sec. 3 of Act XXXII of 1957 in the facts and circumstances of the case arid that the prosecution of the company as also of its directors for a contravention of Sec. 3 of W.B. Act XXXII of 1957 is bad. Mr. Dutt next contended that the directors of the Association are not in any event liable in any way, as alleged or at all, under the provisions of Sec. 29 of the West Bengal Gambling and Prize Competitions Act, 1957, as they were neither in charge of nor responsible for the conduct of the business of the company, nor even can they be deemed to be in occupation of the premises in question on the mere footing of being directors of a company, which is in occupation of the same place and further that the directors under the W.B. Act XXXII of 1957 are not saddled with the liability as enjoined under the Companies Act, 1956. The fourth contention of Mr. Dutt is that the entire prosecution under the West Bengal Gambling and Prize Competitions Act XXXII of 1957 is unwarranted and untenable because the Association is registered under the Forward Contracts (Regulation) Act, 1952, and the bye -laws thereof are approved of under Sec. 11 of the said Act and because the Forward Trading in silver is not prohibited under the said Central Act LXXIV of 1952. The fifth submission of Mr. Dutt is that the Forward Trading in question being neither a wagering contract nor a gambling transaction, the same does not offend the provisions of the W.B. Act XXXII of 1957 but on the other hand is authorised under the Central Act LXXIV of 1952. The sixth submission advanced on behalf of the accused is that the transactions in silver bars at the Association premises are not imaginary, being followed by actual delivery, negativing thereby the" allegations of a wagering contract. The seventh contention of Mr. Dutt is that even if the Forward Trading concerned be deemed to be a wagering contract, that by itself will not establish the elements of an offence under Sec. 3 of the West Bengal Act XXXII of 1957, the sine qua non whereof is that the premises in question must be a common gaming house within the meaning of Sec. 2(1)(a) of the West Bengal Gambling and Prize Competitions Act, 1957. The eighth contention of Mr. Dutt is on merits and relates to the evidence on record which on a proper appraisal would not establish the Offence charged as alleged or at all. The ninth and the last submission of Mr. Dutt relates to the nature of the findings, arrived at and the order passed by the learned trying Magistrate and in this context he described as unwarranted the findings made about the rules and bye -laws of the Association, presupposing the absence of any delivery; the failure by the learned Magistrate to consider whether the ingredients of a common gaming house are present before finding an offence to be proved under Sec. 3 of the West Bengal Gambling and Prize Competitions Act, 1957, resulting in prejudice to the accused ; and the ultimate sentence passed by him against the company inasmuch as the same is clearly bad and repugnant.;