IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 Crl.MC.No. 2204 of 2006() CC.162/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR PETITIONER: ACCUSED: ANSARI, S/O. DAVOODU KHAN RAWTHER, ULLAN VEEDU, KAKKADU MURI, KOORAMBALA VILLAGE. BY ADV. SRI.VINOY VARGHESE KALLUMMOOTTIL RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, PANDALAM POLICE STATION. *3. NOUSHAD KHAN, AGED 42 YEARS, S/O HABBAS, VAVUSAYED VEETTIL, KADAKKADU MURI, KURAMBALA VILLAGE. *( ADDITIONAL R3 IMPLEADED AS PER ORDER DATED 9.8.06 IN CR.M.A.4244/06) BY ADV. SRI.S.MUHAMMED HANEEFF FOR ADDL.R3 PUBLIC PROSECUTOR SRI. B. JAYASURYA-R1,R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON 06/08/2009 PASSED THE FOLLOWING: ORDER ON CRL.M.APPL.NO.4104 /2006 IN CRL.M.C.NO.2204/2006 DISMISSED sd/- 6.8.2009 (C.T.RAVIKUMAR,JUDGE) C.R C.T. RAVIKUMAR, J. --------------------------------------------- CRL.M.C. NO.2204 OF 2006 --------------------------------------------- Dated this the 6th day of August, 2009 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. Crl.M.C.NO.2204 of 2006 2 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 in 2007(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. Crl.M.C.NO.2204 of 2006 3 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 Section 420 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 Section 420 of the I.P.C have been considered therein. To constitute the offence of cheating under Section 420 of the Code there must be a deception preceding the fraudulent or dishonest inducement. In this case, essentially, the learned Crl.M.C.NO.2204 of 2006 4 Magistrate has arrived at a conclusion regarding the existence of a prima facie case under Section 420 of the I.P.C. It would be absolutely unreasonable to assume or presume that in respect of all transactions in nature of chitty transactions like the one involved in this case, there would not be any insiduous intention at inception to attract Section 420 of the I.P.C. When there is a prima facie case, a deep probe into the matter would only be in the interest of justice. Evidently, the case on hand was instituted on a police report. The learned Magistrate was obliged to consider only the allegations incorporated in the said police report and the documents sent along with it under Section 173 of the Cr.P.C. If on consideration of such materials, the learned Magistrate arrived at a conclusion that a prima facie case has been made out to proceed further with the matter in accordance with law, such decision cannot be interfered with lightly under Section 482 of the Cr.P.C. This court is not supposed to appreciate the evidence to find sufficiency or otherwise of the materials placed before the Magistrate in as much as it is the function of that court. The failure or refusal in the matter of re-payment of money whether with or without any mens rea as alleged is not certainly a matter to be urged or looked into in this proceedings. To do decrustation to see the substratum is also not a process to be undertaken in a proceedings under Section 482 of the Act. There is allegation regarding the existence of fraudulent intention at inception and admittedly, the amount remitted by the respondent is yet to be returned. Whether it can be regarded as a refusal to Crl.M.C.NO.2204 of 2006 5 repay simpliciter and whether there was fraudulent or dishonest inducement are matters to be considered and decided based on evidence during the trial. As noticed earlier, in this case, the learned Magistrate, prima facie satisfied regarding the existence of a case to proceed further. At any rate, I am not inclined to accept the extreme contention that in a chitty transaction the elements of cheating cannot involve in any given case. The question whether the transaction was a mere chitty transaction not involving any element of cheating, is also a question to be decided in the trial based on evidence. In the said circumstances, I find no merit in the contentions of the petitioner that the charge in C.C.No.162/2005 is liable to be quashed on the ground that the transaction in question was a chitty transaction. 7. The other limb of contention of the petitioner to assail the proceedings before the court below is that the case on hand is purely a civil dispute and therefore the continuance of the criminal proceedings would amount to abuse of process of the court. It needs no argument to hold that when a dispute is purely of civil nature, then institution of a complaint in respect thereof amounts to abuse of the process of the court and in such event, it is obligatory on the part of this court to interfere with such proceedings by invoking the inherent power under Section 482 of the Cr.P.C. However, the fact that a civil dispute can be maintained on the same set of facts cannot be a reason, at all times, to hold a criminal Crl.M.C.NO.2204 of 2006 6 proceedings as an abuse of process of the court. In this context, it is to be taken into account that civil and criminal remedies are not mutually exclusive whilst they are co-extensive. The petitioner may be held responsible for civil as well as criminal liabilities. But, that cannot be a reason to thwart a criminal proceedings and, at any rate, having regard to the facts of this case it is not desirable to interfere with the proceedings pending before the learned Magistrate. Any interference in a matter like this will prevent the flow of justice and this court cannot lose sight of the growing tendency of subducting in the field of chitty transactions. Therefore, when after considering the allegations incorporated in the F.I.R/ complaint cognizance is taken it calls for no interference if the F.I.R/complaint carries the essential averments to constitute the offence. 8. In the wake of the aforesaid facts and legal discussions, I am of the opinion that there is no merit in the above Crl.M.C and this is not a fit case warranting interference with the proceedings before the learned Magistrate by invoking the inherent power under Section 482 of the Cr.P.C. In the result, above Crl.M.C is dismissed. (C.T. RAVIKUMAR) JUDGE spc Crl.M.C.NO.2204 of 2006 7