@JUDGMENTTAG-ORDER
M. Jeyapaul, J.@mdashThe petition is filed by the third accused in Crime No. 145 of 2006 on the file of the first respondent seeking quashment of
the aforesaid criminal proceedings.
2. The second respondent/de facto complainant has alleged in the complaint as follows:-
Late Krishna Iyer had immovable property of about 2000 acres in Kozhumam and many other Districts and large immovable properties worth
several Crores. The entire joint family headed by late Krishna Iyer was in the estate house. Safety lockers were there to keep the movable
properties in the estate house. From time memorial, the third accused being the eldest in the family was entrusted with the joint family properties
and many jewels by the other legal heirs. Invaluable gold ornaments, diamonds, jewels and Maragadhalingam worth several Crores were entrusted
to the third accused to be kept in the safety lockers in the estate house. Civil suits laid against the third accused and her advisers are pending
before various courts. The third accused, with the assistance of her relatives, removed various artifacts and demolished the estate house and
removed the aforesaid valuable movable properties on various dates. A sham sale deed dated 6.6.2005 was created by the power agent of the
third accused. Suit has been filed in the Sub Court, Udumalpet to cancel the said sale deed and safeguard the common property of the family. An
order of ad interim injunction also was obtained. A Commissioner was appointed by the court to inspect the estate house and accordingly, he
inspected the estate house on 29.9.2006 and 16.10.2006 along with the de facto complainant. Various rooms in the house were found
demolished. The doorways and windows with artistic work, various paintings, safety locker rooms, pooja rooms, staircases, kitchens, guest rooms
were all found demolished. The undivided movable properties and pooja items including gold Vinayagar idol of a height of 6-1/2 inches, the rare
Kethareswarar Sivalingam brought from Kasi by Krishna Iyer, Maragathalingam, Baanalingams, gold Nandhigeswhwarar, Swarnalingam, gold
Annapoorani idol made in Kasi, gold Velswarna Shri Chakram, Sudharsana Chakram, Mahameru made of gold, Rudhraksha malas with gold
threads, gold panchapathrams, theerthavaari made of gold and silver vessels used for Abishekam during pooja, silver platforms kept in the pooja
rooms and silver pooja baskets were removed and taken away. The joint family jewels, diamonds enclosed necklaces, bangles, waist rings and
diamond studs kept in the safety lockers were plundered by the third accused.
3. The aforesaid complaint was registered for offences punishable under sections 452, 427, 379, 380(2) and 468 read with 109 of the Indian
Penal Code by the first respondent police.
4. The petitioner, who is the third accused has contended that the petitioner is also one of the co-sharers and she is also entitled to possession of
the articles mentioned as per the allegations. The remedy open to the de facto complainant is to file a suit before the competent civil court for the
recovery of those articles. No criminal complaint would lie against the co-owner for having removed the common properties. The properties
claimed to be the common properties by the second respondent are the exclusive properties of the third accused inasmuch as the same was
allotted to her father-in-law Venkata Krishna Iyer in the partition that took place on 10.12.1923. In the suit in O.S No. 61 of 1952 on the file of
the Sub Court, Coimbatore it was held that the said property was the exclusive properties of the said Venkata Krishna Iyer. The said property
devolved upon his adopted son Ganapathy Subramaniam, husband of the third accused. No mention has been made in the suit in O.S. No. 384 of
2006 on the file of the District Court, Coimbatore filed by the second respondent about the properties detailed herein. In the suit in O.S No. 59 of
2006 on the file of Sub Court, Udumalpet, the second respondent has not sought for any relief in respect of movable properties. The allegations, as
such, do not disclose prima facie case. One co-sharer cannot be said to have committed offence, mischief or forgery as against the co-sharer. A
co-sharer cannot also be found guilty for having committed trespass upon her own property which was admittedly in her possession. It is
contended that the complaint laid by the second respondent is an abuse of process of law. Therefore, the third accused has sought for quashment.
5. Learned counsel appearing for the petitioner would submit that the second respondent has come out with an invalid plea to take criminal action
as against the co-owner of the property. The averments, as such, do not constitute prima facie any criminal offence. No details of the articles
alleged to have been stolen by the third accused were mentioned in the first information report. When the civil suits are being litigated before the
competent forum, the present complaint has been laid abusing the process of law, he would further contend.
6. Learned Government Advocate (Criminal Side) would submit that investigation has just begun. The first respondent has registered the case only
when cognizable offences have been made out in the complaint lodged by the second respondent.
7. Learned counsel appearing for the second respondent would seriously contend that the complaint, as such, discloses prima facie commission of
cognizable offences. Even if it is a joint family asset, when the co-owner plunders the said asset, the aggrieved party cannot be asked to go to the
civil court to seek remedy. Pendency of civil litigations cannot be a reason to quash the criminal proceedings when the complaint speaks of various
offences committed by the third accused. The investigation had already begun and therefore, it is not just to stall the investigation.
8. The averment in the complainant would disclose that valuable movable properties worth several Crores entrusted to the third accused by the
other co-owners have been plundered by the third accused. Even in a case where a Director of a Company or a Partner of a Partnership Firm or a
co-sharer in the joint family property plunders the share of the other parties, criminal action will definitely lie as against such persons who had
allegedly robbed the share of the other person. Civil court can, at best, decide as to whether the properties in question are the joint family
properties. The civil court would pass a decree for partition of the same according to the entitlement of the share of each and every person. When
the joint family movable properties have been allegedly stolen away, the civil court will have no jurisdiction to go into such pattern of allegation.
Further, it is only the police sleuth who can detect where actually the share of the other co-sharers have been hidden, if at all, a co-sharer has
chosen to hide the valuable movable properties of the other co-sharers.
9. The averments, as such, make out a prima facie case inasmuch as there have been allegations of entrustment of valuable movable properties and
commission of theft of those articles by the other co-sharer. The movable articles alleged to have been stolen by the third accused might not have
been referred to in the civil litigation between the parties. It is to be noted that the parties are litigating over the estate house of the joint family
property. The valuable movable articles have been allegedly kept in the safety lockers in the possession of the third accused herein. Therefore, lack
of specific reference to those articles in the civil suits cannot be ground to quash the criminal proceedings when the complaint lodged by the second
respondent discloses prima facie commission of cognizable offences. A party has every right to invoke the civil jurisdiction and also the criminal
jurisdiction if criminal offences have been made out in the very same transaction or occurrence as the case may be.
10. The Supreme Court in Indian Oil Corporation v. NEPC India Limited (2006) 3 SCC (Cri) 188 : 2007 1 L.W. (Crl.) 80) has held that
availability of a civil remedy for a breach of contract does not foreclose the right of the aggrieved party to approach the criminal court with a
complaint setting out allegations disclosing commission of criminal offences. But, of course, if the allegations contained in the complaint taken on
their face value do not constitute any of the offences under the penal law, such a complaint cannot be taken cognizance of by the investigating
agency. Of course, the Supreme Court has come down heavily on the current practice of misusing of criminal process to put undue pressure in civil
disputes.
11. The Supreme Court in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, has deprecated the initiation of criminal
proceedings for mere breach of contractual obligations abusing the process of criminal law.
12. If there is mere breach of contract and no criminal offence is made out, parties to such a contract will have to necessarily approach the civil
court for redressing their grievance and they shall not go straight to the criminal court abusing the process of law.
13. In the instant case, it is found that there is material allegation in the complaint as to the breach of trust and mischief causing damage to the
valuable property and also theft. The investigation has just begun. Therefore, there is no merit in the petition seeking to quash the first information
report in Crime No. 145 of 2006 on the file of the first respondent.
14. In view of the above, the petition stands dismissed. The connected Miscellaneous Petitions also stand dismissed.
