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Judgment
K.T. Thomas, J.—The petitioners who were members of the board of directors of a co-operative bank (for short, "the bank") were declared disqualified to hold the posts since they were convicted and sentenced for offences under Sections 7 and 8 of the Kerala Gaming Act, 1960. The aforesaid action of the second respondent (Joint Registrar of Co-operative Societies) is in challenge now.
The facts which are not disputed are the following : The petitioners were elected to the board of directors of the bank on February 19, 1989. The period of the board, as per the bye-laws of the bank, is five years. On November 16, 1987, the two petitioners along with six others were charged for offences under Sections 7 and 8 of the Kerala Gaming Act before a Magistrate. Except two, all the others pleaded guilty and the Magistrate convicted them and imposed a sentence of fine on them. The other two who pleaded not guilty faced trial and were ultimately acquitted. The petitioners are among those who pleaded guilty. The prosecution case was that all the accused were found engaged in playing cards for stakes on July 29, 1987, in the house of the first petitioner.
The second respondent issued a notice to the petitioners to show cause why they should not be declared disqualified as they were convicted and sentenced for the offences. The petitioners, in their replies, admitted that they were convicted for the offences under the Kerala Gaming Act, and raised certain other contentions for avoiding the disqualification. The second respondent as per exhibits P-5 and P-6 orders declared them disqualified.
Rule 44 of the Kerala Co-operative Societies Rules, 1969 (for short, "the Rules"), deals with disqualification from membership of the committee (or board of directors) of a society. As per the said rule, no member of a society shall be eligible for being elected or appointed as a member of the committee of the society if he has been sentenced for any offence other than an offence of a political character or for an offence not involving moral delinquency, such sentence not having been reversed or offence pardoned and a period of three years has not elapsed from the date of expiration of the sentence. Sub-rule (2) provides that a member of the committee shall cease to hold his office as such, if he "is subsequently seen to be disqualified under Sub-rule (1) on the date of the election it self." The second respondent has taken the impugned action under Rule 44.
A conviction by a criminal court is not sufficient to invite the consequence of rendering a member disqualified unless he has been sentenced for an offence involving "moral delinquency". The question here is whether the offences for which the petitioners were convicted and sentenced involve "moral delinquency". I do not think that the rule-making authority would have intended that the expression "moral delinquency" should be treated differently from "moral turpitude" since both expressions carry the same meaning.
The expression "moral delinquency" or "moral turpitude" has not been defined. All offences do not necessarily involve mortal turpitude, e.g., violation of traffic Rules or non-compliance with certain statutory requirements such as filing of returns or remittance of money, etc., are not offences which can possibly be said to involve any moral turpitude or moral delinquency. Though the expression is vague, in a sense, it may carry a slightly different meaning in different contexts. The term is generally taken to mean a conduct contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with a particular conduct. In Bouvier''s Law Dictionary, the expression "moral turpitude" is described as "an act of baseness, vileness or depravity in the private and social duties which a man owes to his followmen or to society in general, contrary to the accepted and customary rule of right and duty between man and man." Thus, the conduct must be of such a degree as would cross the limit of mere violation or contravention of a statutory provision. The offence must be of such a type as would bring the offender into disrepute among the right-thinking members of the society.
In a particular situation wherein the conduct of an advocate was the subject-matter of consideration, the Supreme Court has observed that the expression "moral turpitude" or "delinquency" should not receive a narrow construction. ("P" an Advocate, In re AIR 1963 SC 1313. Whether the expression should receive a narrow or liberal construction would depend upon the facts of each case, in the absence of any fixed parameters for the expression. A single judge of the Allahabad High Court observed in Baleshwar Singh Vs. District Magistrate and Collector, Banaras and Others, , that the expression "moral turpitude" means anything done contrary to justice, honesty, modesty or good morals. The test laid down by the learned judge is this : "if the individual who is charged with certain conduct owes a duty either to another individual or to the society in general to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be attributed to vileness and depravity." In the said context, it was held that the offence u/s 182 of the Indian Penal Code involved moral turpitude. Another single judge of the Allahabad High Court formulated two other tests to ascertain whether a particular offence involved moral turpitude Mangali Vs. Chhakki Lal and Others, ). The tests are : (1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general ; (2) Whether the motive which led to the act was a base one and whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. Applying the said tests, the learned judge found that the offence u/s 60(a) of the U. P. Excise Act did not involve moral turpitude. A single judge of the Madras High Court has found on facts that the offence u/s 135(1)(b)(i) of the Customs Act does not involve moral turpitude. (See G. Mohan v. Assistant Collector of Customs, Madras [1989] Lab IC 1646.
The position seems to be this : The question whether a particular offence involves moral turpitude or moral delinquency has to be examined on the facts of each case. It is not merely the action of offence which matters as such. The facts on which the offence is made out have also some bearing on the answer to the question.
The Kerala Gaming Act was enacted for punishment of gaming and keeping common gaming houses. A common gaming house is defined as any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, etc. Section 14 of the Gaming Act says that the provisions in that Act would not apply to any game of mere skill wherever played. This court has held in Kunkikannan v. Assistant Sub-Inspector of Police [1985] KLT 484 that gaming in a private building or place would not make it a common gaming house. The Madras High Court has held in Emperor Vs. Subramania Sastri and Others, , that the fact that, occasionally, people used to play cards in a house, and perhaps for stakes, does not necessarily make it a common gaming house. A game does not become offensive merely because it involves some element of chance. Practically no game can be played without any element of chance. If a game predominantly involves skill of the player, such a game is outside the scope of the Kerala Gaming Act. The court cannot overlook the fact that games of cards, in different forms, are played in clubs and other public places of amusement without perforating the thin membrane which distinguishes it from being an offence. Here the charge is that the game of cards was played for stakes at the residence of the first petitioner and, since the game was not one for mere skill, the players were charge-sheeted. If the game played involved more skill than chance, the game would not have crossed into the prohibited region. The very idea of prohibiting such games in common gaming houses is to prevent perpetration of serious crimes. So, the measure is more in the nature of a preventive step. The game of cards, even if played for stakes and in whatever form, does not normally involve any transgression of the code of justice or morality to a degree which could be characterised as wickedness of character. On the facts of this case, one cannot take the view that the offences for which the petitioners were convicted involved moral delinquency or moral turpitude.
I, therefore, allow this original petition and quash the two proceedings of the second respondent, exhibits P-5 and P-6, by which the petitioners were declared disqualified from being members of the committee of the bank.