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Ludo- A Game of Chance or Skill- Bombay High Court

August 6, 2021

By Nihit Nagpal and Devika Mehra

The board game, LUDO, is the perennial nostalgic favourite from everyone’s childhood, having historic roots dating back to depictions and iterations of it in the cave paintings of Ajanta-Ellora, as well as in the Mahabharatha. While LUDO had its heyday in the 20th century, in the 21st, with the advent of gaming technology, board games as a genre took a backseat, while we were all glued to screens. However, board games took over these screens as well, as various companies brought in the virtual versions of the old-but-gold board games, of which LUDO was definitely one. The benefit of a virtual version of LUDO was that it now allowed everyone to play with their friends, sitting in different corners of the world. Especially during the recent COVID lockdowns, many were able to alleviate both boredom and fear and still stay connected remotely and have fun via the online platform of the childhood favourite game.

GAMES OF CHANCE vs. GAMES OF SKILL

Games, legally, are two fold and are hence categorized as “games of chance” and “games of skill”.

The main points of difference between the two can be explained as below:

GAME OF CHANCE GAME OF SKILL
Outcome is strongly influenced by some randomizing device, such as dice, spinning tops, playing cards, roulette wheels, or numbered balls drawn from a container. Outcome is determined mainly by mental or physical skill, rather than chance.
May have some skill element to it, but chance generally plays a greater role in determining its outcome. May have elements of chance, but skill plays a greater role in determining its outcome.
Based on the element of luck, coupled with skill to a certain extent. Based on one’s knowledge and expertise of the subject.
One where success primarily depends on chance but is not altogether devoid of skill. One in which success primarily depends on the superior knowledge, training, attention, experience, and adroitness of the player[1]
The element of chance predominates over the element of skill The element of skill predominates over the element of chance

Nonetheless, in each game, one element would predominate the other. Hence, games wherein skill predominates are termed as games of skill, and those wherein chance predominates, are termed as games of chance, and hence would attract the elements of the Public Gambling Act and its regulations. Section 12 of the Public Gaming Act[2] provides that the said act shall not apply to any “game of mere skill”, since the main objective of the act is to regulate and monitor those games played on chance.

Gambling- Skill or Chance?

The Hon’ble Supreme Court[3] has observed the definition of gambling as:

the betting or staking of something of value, with consciousness of risk and hope of gain on the outcome of a game, a context, or an uncertain event the result of which may be determined by chance or accident or have an unexpected result by reason of the better’s miscalculations”.

Gambling has been defined[4] as something which involves not only chance, but also a hope of gaining something beyond the amount played. Gambling consists of consideration, an element of chance, and a reward. The Supreme Court also held that even though the most important aspect of gambling is chance, it does not mean that it is completely devoid of skill.[5] Hence, there are games which require skill, coupled with chance, up to a certain degree and such games are not illegal. It is imperative to mention here that the Public Gambling Act, 1867 does not expressly refer to “game of chance” and/or  “game of skill” (the differentiation is being made here for the sake of argument).

It is the dominant element – ‘skill’ or ‘chance’ – which determines the character of the game. It has been held[6] [7] by several State High Courts that competitions wherein success depends on a substantial degree of skill are not ‘gambling’; and despite there being an element of chance, if a game is preponderantly a game of skill it will nevertheless qualify as a game of “mere skill”. Therefore, the expression “mere skill” may be considered to mean a substantial degree or preponderance of skill.

The Case of LUDO

Various app developers have brought out mobile game versions of LUDO through the Google Play Store / Apple AppStore, and some have even introduced their own modification to the game. One core commonality of the game of LUDO has been maintained in all the games in that they do not involve playing for financial stakes i.e. no real money was put at stake before playing this game. This was, however, found to not be the case with the Ludo Supreme App made by the private company, Cashgrail Private Limited. Accordingly, a petition seeking declaration was filed before the Bombay High Court in this regard by one, Mr. Keshav Ramesh Muley, a regional party worker.

The Petitioner has claimed before the Bench comprising the Hon’ble Justices S.S. Shinde and Abhay Ahuja that a declaration be made that “Ludo is a game of chance, and not a game of skill”, and therefore, the provisions of the Maharashtra Prevention of Gambling Act, 1887 would apply if the game is played for stakes.

In the Petition filed before the Hon’ble High Court, the Petitioner had highlighted the following facts leading to the filing of the said petition:

  1. The Petitioner has stated that he came across few young children playing this game on mobile phones and noticed the Indian Rupee Symbol on the screen which raised his suspicion. On enquiring, he learnt that money could easily be won in this game. On further researching, the Petitioner states that he found various videos streaming on websites which taught how to win money in the game.
  2. The Petitioner then went further to download the game and learnt that one could play the game by putting money at stake. One is required to link their bank account to the application and therein, one can deposit money in the application’s electronic wallet.
  3. The Petitioner has further explained that, LUDO being a 4 player game, each player is required to deposit Rs. 5/- as entry fees into the online mode of the game and the winner would take all the money, barring a certain amount that would get deducted by the application and go to the Company. Hence, the Petitioner has stated that “the prize money is not some notional or fictional winning but is real-time currency of value”.
  4. The Petitioner has then argued that since the makers of the game are retaining certain amount from this game, it shows that they are making profit from the game and hence, this qualifies as an offence under the Gambling Act, since there is no scope of skill in this game and is purely a game of chance.
  5. The Petitioner had approached the local police to register an FIR under Section 419[8] and 420[9] IPC in November 2020. However, the police had refused to register a case, which had led the Petitioner to approach the Metropolitan Magistrate’s Court with a private complaint. However, this too had been rejected holding (inter alia) that LUDO is a game of skill, not chance.

CONCLUSION

In India, States have the power[10] to make their own laws to curb gambling within their territory. While various States still choose to follow the (central) Public Gambling Act, 1867 to regulate gambling, various other States have brought into force their own local legislations to keep a strict watch on and curb (as far as possible) acts of gambling, having view of the menace that it could lead to if not regulated.

Under the Maharashtra local law (Maharashtra Prevention of Gambling Act, 1887), the Bombay High Court took notice of this petition filed by the Petitioner and called upon the State to file their reply to the Petition. The matter was thereafter listed on June 22, 2021 when the attorney appearing on behalf of the State of Maharashtra filed a report, signed by the Assistant Police Inspector, Shri Nitin Chavan, and the same was taken on record.

The matter now stands adjourned to July 20, 2021. It is now upon the Bombay High Court to determine whether in Ludo, chance predominates skill or skill predominates chance, which will define the fate of whether this beloved game would constitute gambling.

[1] K.R. Lakshmanan vs State of Tamil Nadu 1996 AIR 1153 , 1996 SCC (2) 226

[2] 12. Act not to apply to certain games.—Nothing in the foregoing provisions of this Act contained shall be held to apply to any game of mere skill wherever played.

[3] K.R. Lakshmanan vs State of Tamil Nadu 1996 AIR 1153 , 1996 SCC (2) 226

[4] Black’s Law Dictionary

[5] https://ssrana.in/corporate-laws/gaming-and-sports-laws-india/gambling-laws-india/

[6] State of Andhra Pradesh vs K.Satyanarayana & Ors. (1968) 2 SCR 387 , AIR 1968 SC 825

[7] State of Bombay vs Chamarbaugwala AIR 1957 SC 699, AIR 1957 SC 628

[8] Punishment for cheating by personation.—Whoever cheats by personation shall be punished with imprisonment of either de­scription for a term which may extend to three years, or with fine, or with both.

[9] Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person de­ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

[10] List 2, Seventh Schedule, Constitution of India

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