ORDER

Petitioner is the accused in C.C.No.162/2005 on the file of the Judicial First Class Magistrate Court, Adoor. He is indicted therein, under Section 420 of the I.P.C. The above Crl.M.C has been filed with the prayer to quash Annexure-A2 charge in the said C.C.No.162/2005.

2. The petitioner was a chitty Foreman and the 3rd respondent was a subscriber to his chitty. The 3rd respondent had remitted 7 instalments, totalling Rs.17,500/- and thereafter he became a defaulter. On suave request to return the money he had remitted, the petitioner had promised to pay the same on 23.11.2000 after deducting the amounts due to him by way of commission. However, he has subducted such amounts in similar style from several subscribers like the 3rd respondent and absconded with such ill-gotten money. This is the sum and substance of the allegations with which the 3rd respondent approached the Pandalam Police Station and got registered Crime No.492/2004.

3. I have heard the counsel for the petitioner and 3rd respondent and also the learned Government Pleader.

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4. Counsel for the petitioner/accused contended that the 3rd respondent had caused initiation of prosecution against the petitioner only to harass him and continuance of the proceedings in C.C.No.162/2005 would result in abuse of the process of the court. There is absolute absence of ingredients to constitute the offence under Section 420 of the I.P.C and even if the entire allegations are taken as true and correct, they would give rise only a cause of action for a civil dispute. The fact that the amount involved in the case fell due on account of a chitty transaction ipso facto would make the case on hand purely a dispute of civil nature, it was contended. Reliance was placed on the decision of this court in Kuriachan Chacko v. State of Kerala reported in2007(3) KLT 843 to contend that the ingredients of cheating are absent in the case and hence charge in C.C.No.162/2005 is liable to be quashed.

5. Per contra, the counsel for the 3rd respondent contended that merely because on the same set of allegations a civil dispute can also be maintained cannot be a reason to interfere with the proceedings in C.C.No.162/2005 under Section 482 of the Cr.P.C. and put its abrupt termination. According to him, it was after having satisfied on the existence of a prima facie case that the learned Magistrate decided to proceed further with the case. It was further contended that the decision in Kuriachan Chacko (supra) did not have any application in the facts and circumstances of the case on hand.

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6. Kuriachan Chacko v. State of Kerala (supra) arose under the Price, Chits and Money Circulation Scheme (Banning) Act, 1978 that was enacted to prohibit money circulation scheme. In that case, this court, in the revisional jurisdiction, was considering the direction of learned Chief Judicial Magistrate, Ernakulam for framing charges against all the accused persons under Section 2(c) read with sections 3, 4 and 5 of the said Act and Section 420 of the I.P.C and also the refusal to frame charges against the accused under Section 2(e) read with sections 3, 4, and 5 of the said Act. The persons accused therein were conducting a scheme by name 'LIS Deepasthambom Scheme'. In paragraph 29 therein, it was observed that in the inceptive days of the scheme all the unit holders might have been richly rewarded. Even thereafter, it was held that there is no merit in the contention that the allegations under of the I.P.C is not made out. That apart, it is obvious from the above that the facts in Kuriachan's case (supra), were different from the facts obtained in this case. On a scanning of the said decision, I could find nothing which suggests that the offence of cheating would not lie in a case involving a chitty transaction like the one involved in this case. It is true that the requisite ingredients to constitute an offence under of the I.P.C have been considered the