Kuriachan Chacko & Ors vs State Of Kerala

3. To understand the issue raised in the present appeals, few relevant facts may be stated:

4. The appellants are partners of M/s LIS, Ernakulam, a partnership firm engaged in the business of sale of lotteries and magazines after collecting advance money. They floated a scheme known as "LIS Deepasthambham Scheme". The scheme was simple in its conception. A person has to pay Rs.625/- and purchase one 3 unit of lotteries from the promoters. The promoters will make use of Rs.350/- to purchase 35 lottery tickets of the Kerala State Government each of Rs.10/- for the unit holder for the next 35 weeks. If the unit holder wins any prize up to Rs.5,000/- in the 35 draws, the promoters shall collect the amount and pay the same to the unit holder. If the unit holder wins any prize above Rs.5,000/-, the ticket shall be handed over to the unit holder for collection of the amount. The balance of Rs.275/- (Rs.625 - Rs.350) will be used to make the unit holder a subscriber of a magazine by name `Thrikalam' for one year. The said magazine would reproduce relevant and important materials from other magazines. It would also furnish necessary information about the lottery tickets which have won prizes.

6. The idea appeared to be very attractive. Several persons participated and invested money. The membership collection during a short period of time reached to almost Rs.500 crores. Amounts were being paid to the unit holders initially very promptly--on many occasions even before the expiry of 35 weeks. More and more subscribers joined the queue. There was aggressive publicity and marketing through visual (TV) and printed media (pamphlets and newspapers). The scheme was proceeding very happily. More and more amounts 7 were coming into the kitty of the promoters from unit holders.

11. The High Court, after considering the rival contentions of the parties and referring to the relevant decisions on the point, held that the trial Court was right in discharging the accused for offences punishable under Sections 4 and 5 read with Sections 2(e) and 3 of the Act and also under the Reserve Bank of India Act, 1934. The High Court held that the trial Court was also right in framing the charge against the accused for offences 10 punishable under Sections 4 and 5 read with Sections 2(c) and 3 of the Act and also under Section 420 read with Section 34, IPC. The High Court, therefore, confirmed the order passed by the trial Court and dismissed revisions of both the parties. The said order is challenged by the appellants-accused in present appeals.

12. On September 7, 2007, notice was issued by this Court. On February 22, 2008, the matters were ordered to be posted for final hearing on a non-miscellaneous day. That is how they are before us.

Rs.10 worth Thrikalam Tri-Monthly Collage Magazine one year subscription : Rs. 275/-

7. Once the Rs.1150 is paid to the member, the membership is ceased, and no more ticket or Thrikalam will be given to him, even if the promised 35 tickets and one year Thrikalam are not yet over.

8. To justify this stand of ours, though the Rs.1150 paid is actually the commission, we term it as Refund and Commission so that the member shall not make any claim for the remaining tickets or Thrikalam.

9. If the member wish to get lottery ticket and Thrikalam again he has to join again by taking new membership.

10. The lottery commission available to us on Kerala Government Lottery is 28% alone. As the commission we are paying to the member is 27%, the margin for us is only 1%.

But then there will be a lot of other commissions on prizes bagged by the members which will add to our gain.

11. At the beginning, we offered the Superlotto and Thunderball online tickets also. But we stopped that since 2 months and now we are issuing only Kerala Govt. tickets. By October end, we will be purchasing a minimum of 1 lakh tickets every week i.e. 10 lakh rupees worth tickets in a week from Kerala Government.

41. On the facts and in the circumstances of the case, in our opinion, the Courts below were right in not interfering with the prosecution at the stage of framing of charge. We see no reason to interfere with the order.

1. Deception of any person;

2.(a) Fraudulently or dishonestly inducing that person;

(i) to deliver any property to any person, or

(ii) to consent that any person shall retain any property, or

46. In our opinion, the Courts below have not committed any error in coming to such 39 conclusion at the stage of framing of charge and no interference by this Court is, therefore, called for.

47. For the foregoing reasons, in our opinion, both the Courts below were right in framing the charge against the appellants and no illegality has been committed by them in coming to such conclusion. It is no doubt, true, that the above orders do not mean that the accused have committed such offences. It only means that a prima facie case has been made out to frame charge and at that stage, no interference is called for. We are, therefore, not inclined to interfere with the said order. The appeals deserve to be dismissed and are hereby dismissed.

48. Before parting with the matter, we may clarify that we may not be understood to have expressed any opinion on the merits on the matter one way or the other. All the observations made by the trial Court, by the High Court as well as by us in this judgment, 40 must be construed as limited to the framing of charge and nothing more than that. As and when the main matter will come up before the Court for hearing, the Court will decide it on merits without being inhibited or influenced by the above observations.

49. Ordered accordingly.