Thina Boomi vs State

The petitioner, proprietor of Thina Boomi, a monthly magazine, seeks to quash the first information report, registered in Crime No.1219 of

1999, pending for investigation before the first respondent.

According to the petitioner, the petitioner gave an advertisement in a daily, Thina Boomi dated 18.10.1999 and 22.10.1999, announcing that

Thina Boomi monthly would be publishing a ""Deepavali Special Malar"" for the year 1999 at a cost of Rs 100 and those who purchase the malar

would get a prize coupon inside the malar on production of such prize coupon, the purchaser would be getting a bumper prize or any other prize.

It appears that a complaint was lodged before the first respondent on 25.10.99 by one V.Hari Babu, son of Venkata Krishnan, 18, Kovur

Vaidyanathan St, Chinthadripet, Chennai-2, stating that he read an advertisement in Thina Boomi Daily dated 18.10.99 and 21.10.99 that Thina

Boomi Deepavali Malar will be sold for Rs 100 this year and every issue of the Deepavali Malar will contain a prize coupon carrying various

prizes. Therefore, it was complained that he was dishonestly induced by the said advertisement, to pay a sum of Rs 100 and to purchase a ticket

for the Deepavali Special Malar. It is further contentded that the said complainant was cheated as such schemes are prohibited in law, and hence

lodged a complaint that the proprietor of Thina Boomi Monthly proposed to cheat the complainant informing that the purchaser of Deepavali

Special Malar by dishonestly inducing him to by a ticket for the Deepavali Special Malar would be getting an attractive prize.

The said complaint was received by the first respondent, who registered a case in. Crime No.1219 of 1999 for the offence punishable u/s 4

read with sections 3 and 5 of the Tamil Nadu Prize Scheme (Prohibition) Act thereinafter referred to as ''the act'' read with section 420 IPC.

""Prize Scheme"" is defined u/s 2(b) of the act, which reads as follows:

Prize Scheme"" means any scheme by whatever name called whereby any prize or gift (whether by way of money or by movable or immovable

property) is offered, or is proposed to be given or delivered to one or more persons to be determined by lot, draw or in any other manner from

among person who purchase or have purchased goods or other articles from shops, centers or any other places whatsoever specified by the

sponsors of the scheme or on any event or contingency relative or applicable to the drawing of any ticket, lot, number or figure in relation to such

purchasers.

Section 3 of the Act prohibits that no person shall propose or conduct any prize scheme; Section 4 prescribes the penalty for the contraventions

of the provisions of Section 3 referred to above and Section 5 deals with the penalty of the old offences in connection with the prize schemes.

Section 420 of the I.P.C. deals with the punishment imposed for cheating and dishonestly inducing delivery of properties.

Mr. M. Ravindran, learned senior counsel for the petitioner, contends that the F.I.R. registered is liable to be quashed, as the allegations

mentioned in the F.I.R. do not satisfy the ingredients to constitute an offence punishable u/s 4 read with Sections 3 and 5 of the Act and Section

420 I.P.C.

Mr. M. Ravindran, learned senior counsel, invited my attention to the letter dated 12.8.1999 issued by the Additional Deputy Commissioner of

Police, Central Crime Branch, Egmore, Chennai-8, wherein, the petitioner was called upon to furnish the details of their proposed scheme. He also

states that the receipt of the said letter dated 12.8.1999, the petitioner submitted a detailed representation dated 22.8.1999, explaining that the

petitioners are not going to conduct any ""lot"" or ""draw"" to attract the provisions of the Act, but they only propose to follow the procedure adopted

by M/s. H.M.M. Limited, namely, manufacturers of Horlicks, wherein, H.M.M. Limited announced that coupons would be inserted in some of the

Horlicks bottles, indicating that purchasers of those bottles would get various prizes, as mentioned in the coupon. Thereafter, as no further orders

were passed on their explanation, the petitioner proceeded with the scheme. But, after nearly two months, the first respondent has registered the

F.I.R. on 25.10.1999, even without passing any orders on the explanation offered by the petitioner to the notice dated 12.8.1999. Therefore, Mr.

M. Ravindran, learned senior counsel, contends that the impugned F.I.R. is mala fide and vexations, as the allegations mentioned therein, do not

attract the prize scheme as defined u/s 2(b) of the Act, nor constitute an offence punishable under Sections 4 read with Sections 3 and 5 of the

Act, nor an offence punishable u/s 420 I.P.C.

Mr. M. Ravindran, learned senior counsel for the petitioner, contends that what is prohibited u/s 3 read with Section 2(b) of the Act is only a

lot"" or ""draw""; it would attract only the prize or gift offered or proposed to be given or delivered by lot or draw; and that the words ""in any other

manner"" should have a nexus to the ""lot"" or ""draw"", but cannot be given an independent meaning, which is, in no way, related to ""lot"" or ""draw"".

Mr. M. Ravindran, learned senior counsel for the petitioner, explains that the petitioner proposes to sell the Deepavali Special Malar containing

three books worth about more than Rs.100, containing one prize coupon each, and every such coupon will carry a prize. Therefore, the ingredients

that prize or gift is offered or is proposed to be given or delivered by lot or draw is not constituted. The sale of coupon will not in any way have

any nexus to the ""lot"" or ""draw"", and such a sale of prize coupon cannot be construed as an act of offering prize or gift by lot or draw or in any

other manner; and bringing the sale of tickets of Deepavali Malar containing prize coupons within the meaning of ""lot"" or ""draw"", is not permissible

unless the same is specifically prohibited in the definition of prize scheme defined u/s 2(b) of the Act; and therefore, it is contended that it is not the

duty of this court to stretch the words used by the legislature to fill in gaps or omissions in the provisions of an Act as held in Shrimati Hira Devi

and Others Vs. District Board, Shahjahanpur, . In this regard, Mr.M.Ravindran, learned senior counsel for the petitioner, places reliance on the

decisions in Nalinakhya Bysack Vs. Shyam Sunder Haldar and Others, ; P.K. Unni Vs. Nirmala Industries and others [OVERRULED], ; Union of

India and another Vs. Deoki Nandan Aggarwal, ; and P.K.Krishnasamy and another v. State rep. by Sub Inspector of Police, Vadasery, 1995 (1)

L.W. (Crl.) 235.

Mr.M.Ravindran, learned senior counsel for the petitioner, placing reliance on the decision in State of Karnataka and Others Vs. Kempaiah, ,

contends that the words ""in any other manner"" used after the words ""lot"" or ""draw"" will not include the proposed sale of prize coupons by the

petitioner, and therefore, contends that the same would not attract the definition of ""prize scheme"" as per Section 2(b) of the Act. Consequently,

the petitioner cannot be punished for the offence punishable u/s 4 read with Sections 3 and 5 of the Act.

Mr.M.Ravindran, learned senior counsel, further contends that the petitioner never dishonestly induced the complainant to purchase the

Deepavali Special Malar. On the other hand, the complainant voluntarily purchased the ticket for the Deepavali Special Malar, even as per his

statement in the F.I.R. That apart, the complainant would be getting the Deepavali Special Malar in three magazines valuing more than Rs.100.

Therefore, the allegation of the complainant also does not constitute any offence punishable u/s 420 I.P.C.

Mr.M.Ravindran, learned senior counsel for the petitioner, contends that as there is no false representation or suppression of materials, the

allegation of the complainant does not constitute an offence punishable u/s 420 I.P.C. In this regard, he places reliance on the decisions in State of

Madhya Pradesh Vs. Mir Basit Ali Khan and Others, ; State of West Bengal and Others Vs. Swapan Kumar Guha and Others, ; and Ashok

Chaturvedi and Others Vs. Shitulh Chanchani and Another, .

In any event, Mr.M.Ravindran, learned senior counsel for the petitioner, contends that if the words are capable of two constructions, one of

which is more favourable to the accused than the prosecution, the Court will be justified in accepting the one which is more favourable to the

accused, In this regard, he places reliance on the decisions in W.H. King Vs. Republic of India and Another, ; M.V. Joshi Vs. M.U. Shimpi and

Another, ; Suresh Lohiya v. State of Maharashtra, 1957 SC 521, Suresh Lohiya Vs. State of Maharashtra and Another, and State of T.N. Vs.

Sivarasan alias Raghu alias Sivarasa and Others, .

Per contra, Mr.R.Shanmugasundaram, learned Public Prosecutor, contends that even though the complainant or any other purchaser will be

getting a Deepavali Special Malar, each containing a prize coupon, all the coupons do not carry the prizes of equal value. Therefore, only a few

would get the bumper prize than the major number of purchasers, which tantamounts to ""lot"" or ""draw"" . Consequently, the act of sale of tickets,

on production of which, the purchaser would get the Deepavali Special Malar containing prize coupons carrying prizes of different value, would

constitute the ingredient of the prize scheme as defined u/s 2(b) of the Act.

Mr.R.Shanmugasundaram learned Public Prosecutor, also brought to my notice that the petitioner, as the publisher of Thina Boomi Daily, is

also a party to the decision of a Division Bench of this Court in VOICE (Consumer Care Council) Vs. The Commissioner of Police, Chennai-8

and seven others, , wherein, an undertaking was given on behalf of Thina Boomi Daily that they would not resort to this kind of activity in future.

Mr.R.Shanmugasundaram, learned Public Prosecutor, also brought to my notice, the directions of this Court dated 12.10.1999 in Voice

(Consumer Care Council) v. State of Tamil Nadu, Rep. By its Secretary to Government & 2 others, to take appropriate action against the persons

who had violated the provisions contained in the Tamil Nadu Prize Schemes (Prohibition) Act (Act LV1 of 1979).

Placing reliance on the decision in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh

and Others, , Mr.R.Shanmugasundaram, learned Public Prosecutor, contends that anyone who responds to an inducement and does not get the

desired result, becomes a victim of a fraudulent representation punishable u/s 420 I.P.C., and therefore, in the instant case, the complainant, having

been induced that he would be getting bumper prize on production of prize coupon found in the Deepavali Special Malar, would certainly be

disappointed for not getting the desired prize as announced in the advertisement, and therefore, the allegations of the complainant constitutes the

offence punishable u/s 420 I.P.C.

In reply, Mr.M.Ravindran, learned senior counsel for the petitioner, contends that the ratio laid down in Sri Bhagwan Samardha Sreepada

Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh and Others, is not applicable to the fact and circumstances of the instant

case, because, on the date of purchase of the ticket for Deepavali Malar, the complainant himself would not have any desired result in as much as

the Deepavali Malar itself was proposed to be sold on 7.11.1999. Hence, the allegations in the complaint do not constitute an offence punishable

u/s 420 I.P.C.

I have given a careful consideration to the submissions of both sides.

The contention of the learned counsel for the petitioner that the respondent ought to have taken a decision on the explanation offered by the

petitioner to the notice dated 12.8.1999 and the failure to take such decision and the consequential investigation amounts to mala fide and renders

the investigation as vexatious, cannot be accepted, unless the Act contemplates such issuance of show- cause notice and requires the first

respondent to pass order on the explanation. On the other hand, the respondents are well within the powers to collect necessary information,

invoking Section 149 Cr.P.C. to prevent the cognizable offence, and the same will not give a right for the petitioner to contend that the investigation

pursuant to the impugned F.I.R. of the respondent is malicious and vexatious.

Of course, Mr.M.Ravindran, learned senior counsel for the petitioner, strongly relies on the decision in H.M.M. Ltd., v. Monopolies &

Restrictive Trade Practices Commission, 1999 (6) SCC 485, which arises under the Monopolies and Restrictive Trade Practices Act, 1969,

wherein, the Apex Court has held that the fact that some bottles of Horlicks which contain a slip of paper entitle the buyer to a prize, is not a

lottery in the ordinary sense of the word. In my considered opinion, the ratio laid down in HMM Ltd. Vs. Director General, Monopolies and

Restrictive Trade Practices Commission, , is not applicable to facts of the instant case, as the respondent proposed to investigate into an offence

punishable under the Tamil Nadu Prize Scheme (Prohibition) Act, 1979, which is intended to prohibit the permission to conduct prize scheme in

the state of Tamil Nadu, and it may not be proper to apply the ratio laid down under the Monopolies and Restrictive Trade Practices Act, 1969,

for the purpose of interpreting the provisions of the Tamil Nadu Prize Scheme (Prohibition) Act, 1979, which would be a violation of the rule of

interpretation in as much as the scope and object of the Tamil Nadu Prize Scheme (Prohibition) Act, 1979 is totally different from that of the

Monopolies and Restrictive Trade Practices Act, 1969.

No doubt, as held in P.K. Krishnasamy and another v. State Rep. By Sub Inspector of Police, Vadasery, 1995 (1) L.W. (Crl.) 235, Section

2(b) of the Act is specific that it has to be decided only on the basis of lot or draw. Any other thing given along with the commodities to each and

every customer will not attract the provisions of Section 2(b) of the Act. That apart, as held in Shrimati Hira Devi and Others Vs. District Board,

Shahjahanpur, , certainly, it is not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of

an Act. As held in Nalinakhya Bysack Vs. Shyam Sunder Haldar and Others, , the Court must proceed on the footing that the Legislature intended

what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot aid the Legislature''s defective phrasing of

an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is for others

than the Courts to remedy the defect. The said ratio has been followed in P.K. Unni Vs. Nirmala Industries and others [OVERRULED], and also

in Sahab Singh and others Vs. State of Haryana, .

Therefore, it is well settled in law that the Court cannot re-write, re-cast or reframe a Legislation for the very good reason that it has no power

to legislate. The power to legislate has not been conferred on the Courts and the Courts cannot add words to the statute or read words into it,

which are not there. Assuming there is a defect or an omission in the words used by the legislature the court could not go to its aid to correct or

make up the deficiency. Courts shall decide what the law is and not what it should be.

There is no dispute about the above well-settled proposition of law.

The Apex Court, interpreting the words ""in any other manner"" in State of Karnataka and Others Vs. Kempaiah, , has held as follows:

The expression ""in any other manner"" takes it in fold the last- mentioned categories of administrative actions. The expression ""in any other manner

contains general words which construed literally, should receive their full and natural meaning but when they follow specific and particular words of

the same genus, it will be presumed that the legislature has used the general words in a limited sense to convey the meaning implied by specific and

particular words. This follows from application of the rule of ejusdem generis. In the definition of action, the expression ""in any other manner

follows ""decision"", ""recommendation"" or ""finding"". So it connotes other categories of administrative action; it cannot be interpreted to mean actions

which have no nexus to any administrative action.

In the instant case, as rightly contended by the learned Public Prosecutor, the complainant was made to believe that, on production of the prize

coupon, which is found in the Deepavali Special Malar, he would get any one of the bumper prizes. Even though each issue of the Deepavali

Special Malar contains a prize coupon, admittedly, all the prizes does not carry the equal value. Therefore, the value of the prizes differ, which

induced the purchaser of the ticket to get more tickets, so that any one of the prize coupons in the Deepavali Special Malar might hit the bumper

prize. Therefore, as rightly contended by the learned Public Prosecutor, the very act of sale of the tickets, even though does not attract ""lot"" or

draw"" directly, the same amounts to an act of carrying prizes or gifts offered or proposed to be given or delivered to one or more persons ""in any

other manner,"" which is prohibited under the Tamil Nadu Prize Scheme (Prohibition) Act. If such an act is prohibited under the valid legislation,

certainly, this Court can adopt a construction, which would carry out the obvious intention of the Legislature, by ironing out the creases.

Therefore, I am of the considered opinion that the act of selling the tickets, on production of which the purchaser would be getting a Deepavali

Special Malar containing a prize coupon carrying some prize or the other which are not equal in value, definitely would mean a prize scheme within

the definition of Section 2(b) of the Act, constituting an offence punishable u/s 4 read with Sections 3 and 5 of the Act, in which case, the words

''in any other manner"" used in the definition of the prize scheme, certainly covers the alleged sale of tickets for Deepavali Special Malar by the

petitioner.

The ratio laid down in State of Madhya Pradesh Vs. Mir Basit Ali Khan and Others, that if there is no false representation or suppression of

material facts which might render it to be fraudulent, it cannot be said that the offence of cheating has been committed, is not applicable to the facts

and circumstances of the instant case, as I find that the allegations of the complainant contain sufficient materials that he had been induced to

purchase a ticket for the Deepavali Special Malar, believing that it would hit a bumper prize. The argument that all the prize coupons would carry

some prize or the other, and therefore, no case is made out for the offence punishable u/s 420 I.P.C., is not acceptable, because, all the coupons

do not carry prizes of equal value.

Even though Mr.M.Ravindran, learned senior counsel for the petitioner, placing reliance on the decisions in State of West Bengal and Others

Vs. Swapan Kumar Guha and Others, ; and Ashok Chaturvedi and Others Vs. Shitulh Chanchani and Another, , contends that if the F.I.R. does

not disclose the commission of cognizable offence, the Court can quash the same, in view of the discussions above, the said decisions will not, in

any way, improve the case of the petitioner.

It is well settled in law that if the words are capable of two constructions, one of which is more favourable to the accused that the prosecution,

the Court will be justified in accepting the one which is more favourable to the accused. The ratio laid down in W.H. King Vs. Republic of India

and Another, ; Lilavati Bai Vs. The State of Bombay, ; and in M.V. Joshi Vs. M.U. Shimpi and Another, , is that in construing a penal statute it is

also a cardinal principle that in case of doubt, the construction favourable to the subject should be preferred. But, in my considered opinion, the

allegations of the complainant squarely fits in to constitute the offence which is sought to be prohibited under the Act, as explained above. Hence,

the argument of Mr.M.Ravindran, learned senior counsel, that this Court cannot read into the statute is not applicable. Further, the contention that

no offence punishable u/s 4 read with Sections 3 and 5 of the Act or u/s 420 I.P.C. is made out, cannot be accepted. On the other hand, the

averments stated in the complaint, in my considered opinion, constitute the offences punishable u/s 4 read with Sections 3 and 5 of the Act and

Section 420 I.P.C.

For the reasons discussed above, I do not find any merit in the contentions of Mr.M.Ravindran, learned senior counsel for the petitioner, and

therefore, finding no good and sufficient reasons to quash the F.I.R. registered in Crime No.1219 of 1999, the above Criminal O.P. is dismissed.

No costs.