Arun Dubey and Another vs District Small Saving Officer

N.K. Mody, J.

Being aggrieved by the judgment dated 29.01.2008 passed by CJM, Indore, in Criminal Case No. 98/1998, whereby the application filed by the petitioner u/s 468 (2) (a) of Cr. PC, for quashing the compliant filed by the respondent, was dismissed, present revision petition has been filed.

Short facts of the case are that petitioners were prosecuted u/s 13 and 14 of the M.P. Lottery (Niyantran Tatha Kar) Adhiniyam 1973 (hereinafter referred to as the Adhiniyam 1973) by filing a complaint on 31.03.1998, wherein the allegations against the petitioners was that the petitioners failed to submit the return in the prescribed proforma in time in compliance of Section 13 of the Act. It was alleged that the petitioner No. 1 was the President of the Lottery committee, Table-Tennis Trust Indore having its office at Khel Prashal, Roshzn Singh Bhandari Marg, Indore while Petitioner No. 2 was the President of the Trust at the relevant time. Trust was allotted a land by the State Government for the purpose of indoor stadium on the said land. Vide letter dated 05.04.1984, 08.05.1984 and 26.07.1984, permissions were given to Table Tennis Trust Indore for opening the three lottery draws for the purpose of construction and development of said stadium. In compliance of the said permission the lottery draws took place i.e., on 12.07.1985, 31.01.1985 and 03.02.1986. Since the returns of the lottery drawn were not submitted in time, therefore, prosecution was filed by the Respondent No. 1 against the petitioners on 31.03.1998, wherein it was alleged that petitioners were required to submit the accounts as per Section 13 and 14 of the Adhiniyam 1973 read with Rules 11 and 12 of the Rules, which has been framed by the State Government in exercise of powers conferred by Section 29 of the Adhiniyam, 1973 within a period of seven days from the date of draw of the lottery in Proforma-E, which has not been complied with by the petitioners in time, hence petitioners be convicted. In support of the complaint the statement of Dattatray Laxman Vibhute, Senior Retired Small Saving Officer was recorded on 25.10.2007. Thereafter an application was filed by the petitioners on 03.12.2007 u/s 468 (2) (a) of Cr. PC, wherein it was alleged that as per the compliant the alleged offence is between the period of 12.07.1985 to 03.02.1986 and the compliant has been filed on 31.031998 i.e., after a lapse of 12 years. It was alleged that as per the Sections 13 and 14 of the Adhiniyam 1973 read with Rule 11 and 12 of the Rules, the maximum penalty which can be imposed is Rs. 500/-, therefore, the complaint can be filed at the most within a period of six months from the date of commencement of offence. It was alleged that since complaint is filed after 12 years, therefore, complaint be dismissed. The application was opposed by filing reply. After hearing the parties learned Trial Court dismissed the application filed by the petitioners, hence this revision petition.

Learned counsel for the petitioners submit that learned Trial Court committed error in not considering that the alleged offence as mentioned in the compliant is from 12.07.1985 to 03.02.1986. Since u/s 14 of the Adhiniyam 1973 the maximum punishment is Rs. 500/- only, therefore, complaint ought to have been filed within a period of six months from the date of alleged offence, but the same was filed on 31.03.1998 i.e., after expiry of 12 years and after the prescribed period of limitation. It is submitted that no cognizance could have been taken by learned Court below, but in spite of allowing application learned Court below committed error in dismissing the application filed by the petitioners.

Learned counsel for the respondent submits that learned Court below after taking into consideration all the facts and circumstances of the case has dismissed the application filed by the petitioner, which requires no interference.

Section 13 and 14 of the Adhiniyam 1973 reads as under:

Section 13 - Promoters of lotteries to keep and maintain accounts, submit statements - Every person promoting a lottery shall keep and maintain account relating to such lottery and shall submit to the collector statements in such form and within such period as may be prescribed.

Section 14 - Penalty for failure to keep accounts, submit statements or keeping false accounts and submitting false statements - If any promoter of a lottery liable u/s 13 to keep and maintain accounts or to submit statements in the manner and within the period prescribed, fails to keep accounts or so to submit the statements or keeps such accounts or submits such statements as he knows to be or has reason to believe to be false, he shall, on conviction, be punished with fine which may extend to Rs. 500/-.

Rule 11 and 12 of the Rules reads as under:

Rule 11 - Every Licensee to furnish return of accounts kept u/s 13 - Every licensee in the case of lotteries shall submit to the Licensing Officer as statement of account within seven days of the drawing of the lottery in Form. E.

Rule 12 - Penalty for breach of Rules 7, 9, 10, 11 - Any licensee contravening Rules 7, 9, 10 or 11 shall, on conviction, be liable to fine which may extend to fifty rupees.

In the present case permissions to draw the lottery were given by the State on 05.04.1984, 08.05.1984 and 26.07.1984 and lotteries were actually drawn by the petitioners on 12.07.1985, 31.01.1985 and 03.02.1986. The accounts were submitted by the petitioners which is Annexure A-2. There is nothing on record to show that when actually returns were filed. In the returns Annexure A-2, it has been mentioned that the returns could not be filed in time as on the date of draw itself Income Tax Department, Delhi seized the record of the organizing agent.

Sub Section 2 (a) of Section 468 of Cr. P.C. lays down the limitation for filing a complaint for an offence which is punishable with fine only, according to which the period of limitation shall be six months. Section 473 of Cr. P.C, authorizes to file prosecution even after expiry of limitation and the Court is empowered to take cognizance of the offence after the expiry of the period of limitation, if it is satisfied from the facts and circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.

In the present case in the complaint itself no reason of delay has been mentioned. In support of the complaint no application was filed by the respondent u/s 473 of Cr. P.C, for condoning the delay of 12 years. Even after filing of the application by the petitioners for dismissing the compliant respondent did not prefer to move any application u/s 473 of Cr. P.C On the contrary reply to the petition was filed wherein the reason which was assigned for condoning the delay is departmental procedure, which can hardly be said to be a sufficient ground for condoning the delay in absence of facts and circumstances, which were required to be mentioned by the respondent. In the complaint itself it has been mentioned by the respondent that the inquiry repot has been received from the District Magistrate on 19.12.1997. However, it is not mentioned that because of delay in receiving inquiry report the complaint could not be filed in time and the delay be condoned. Apart from this neither the inquiry report has been filed by the respondent nor it was stated by Dattatray (AW-1) in his statement that the report of District Magistrate has been received on 19.12.1997.

In the facts and circumstances of the case there was no justification on the part of the learned Court below in dismissing the application filed by the petitioners and entertaining the complaint filed by the respondent for the purpose of prosecuting the petitioners, wherein the maximum penalty is the fine for which the limitation was only six months.

In view of this, this petition is allowed. The impugned order dated 29.01.2008 passed by CJM, Indore, in Criminal Case No. 98/1998 is set aside. Consequently, criminal proceedings against the petitioner are quashed. Petitioners stand discharged.