(Prayer: Criminal Original Petition filed under Section 482 Cr.P.C. to call for records in Crime No.658 of 2012 on the file of the first respondent.)
1. Petitioner seeks quash of proceedings in Crime number 658 of 2012 on the file of the first respondent.
2. The second respondent is the defacto complainant. In his complaint dated 26.04.2012, the second respondent has informed of the petitioner, one another and himself being the sons of Venkatachalam Chettiar and of their having a sister by name Alagammai. He has informed of the petitioner having been given in adoption to a paternal uncle and the petitioner having married his sister's daughter, who was unwell. He has stated that the petitioner coerced his father into executing a Will in the year 1979 behind the back of the family members and of a compromise entered into whereunder the petitioner was put in charge of properties towards avoiding litigation and in the hope that the petitioner and his adoptive father amicably and expeditiously would divide the properties within a year. The second respondent complains of the petitioner's failure to do so over a period of 25 years, of his not having given any account of the administration of the estate nor the details of sale of properties and of various letters having evoked no response. Informing breach of trust and misappropriation by the petitioner, the second respondent has termed a grave crime the withholding of his wife's as also the family jewellery and expressed apprehension that the petitioner might have sold the jewellery and silver articles and misappropriated moneys. He further has informed of the petitioner wrongfully having fabricated records. He has stated that the petitioner holds a Malaysian identity number, was in India and was likely to leave the country to avoid discharge of his liabilities.
3. Heard learned counsel for petitioner, learned counsel for second respondent and learned Additional public prosecutor as also perused the papers, particularly the petition of the impleading petitioners.
4. Learned counsel for petitioner would seek to justify the quash petition submitting thus:
the petitioner is the administrator of the Estate of late Venkatachalam Chettiar, at Malaysia, he having been appointed as such under consent decree passed in Proceeding No.224 of 1985 on the file of High Court, Penang, dated 24.08.1992. The second respondent has moved an action in O.S.No.170 of 201 on the file of learned Subordinate Judge, Devakottai,seeking the following relief:
'to declare that the alleged Will alleged to have been executed by Alamelu Achi on 17.01.1986 and registered on 27.03.1986 is null and void.'
The petitioner was precluded from distributing the assets owing to an order of passed by this Court in O.A.No.309 of 2011 and A.No.1791 of 2011 in C.S.No.213 of 2011 on 25.03.2011. The second respondent would have to work out his rights in civil law.
Alamelu Achi, the paternal aunt of the petitioner and the second respondent had been abandoned by her husband and lived with her brother Swaminathan Chettiar, the adoptive father of the petitioner. She had left behind a Will bequeathing all her jewels and other movables to the two daughters of the petitioner. Chellammal, wife of the second respondent and daughter of Alamelu Achi, had died issueless. By virtue of section 15 (2) of the Hindu succession act, the second respondent could not raise any claim to property which would have been inherited by his wife. Even otherwise, the second respondent had moved a civil action in O.S.No.170 of 2011 on the file of Sub Court, Devakottai, against the petitioner and the beneficiaries under the registered Will dated 17.01.1986. He would have to work out his remedy in such action.
5. Apart from the above two primary contentions, learned counsel has submitted that the complaint against the petitioner was an abuse of process, that the petitioner's entry into India wrongfully was being obstructed by resort to the present complaint and that a letter submitted by the petitioner to the first respondent informing that he would cause due distribution of assets was one written under duress and of no effect.
6. Learned counsel relied on decision of Supreme Court in Indian oil Corporation vs. NEPC India Ltd. and others [2006 (6) SCC 736] to submit that where the remedy of the second respondent lies only in civil law this court would be justified in quashing the complaint case towards curbing an unnecessary prosecution and harassment of the petitioner. Submitting that the complaint was an attempt to force the petitioner to come to terms, learned counsel stated that the malice and ulterior motive behind the complaint was easily discernible and these would provide grounds for quash. Towards such end, learned counsel relied on decision of the Supreme Court in Rama Devi v. State of Bihar & others [2011 Cri.L.J.652]. Learned counsel also relied on other decisions towards submitting that there was no prima facie case and basic ingredients to make out a criminal offence were lacking.
7. Learned counsel for second respondent submitted that complaint was not to be read as one relating to the administration of the estate of late Venkatachalam Chettiar at Malaysia. The remarks there regards merely were introductory. In effect, the complaint was regards the usurping of jewellery belonging to his mother-in-law and other jewelleries belonging to the family. The petitioner had gone back on his commitment made before the first respondent under letter dated 17.09.2011. His doing so had necessitated the complaint. It was also submitted that the petition was not maintainable as the petitioner was staying away at Malaysia and not cooperating with the investigation.
8. Learned Additional Public Prosecutor submitted that the complaint allegations did make out a prima facie case which stood duly registered and investigation therein must reach its logical end.
9. The impleading petitioners contend that the gold and silver ornaments belonging to the family was so huge that income tax authorities having conducted two raids in the years 1982 and 1985 at the family house, had not been able to take the same away with them. They had left it with the family after causing inventories. Referring to inventory list of 1982 and 1985 prepared by the Income Tax authorities, learned counsel submitted that the gold jewellery of 2199.200 grams belonging to Alamelu Achi only was 10% of the total family jewellery. It is pointed out that the issue is about the wrongful holding of jewellery belonging to the entire family by the petitioner whereas the issue raised in O.S.No.170 of 2011 was execution of Will by Alamelu Achi in favour of the daughters of the petitioner. It is contended that quash of the criminal case would aid the petitioner in doing away with the family jewellery.
10. The decisions relied upon by learned counsel for petitioner are irrelevant for our present purpose. For the present, it only is necessary to ascertain whether a prima facie case calling for investigation stands informed in the complaint of the second respondent. After informing wrongdoings of the petitioner regards the estate of Venkatachalam Chettiar, the complaint does inform of wrongdoings of the petitioner regards jewellery, not only that of his wife/mother in law which the second respondent claims he is entitled to, but also that belonging to the family. The proceedings pending before the court in Malaysia is regards the estate of Venkatachalam Chettiar at Malaysia. No issue regards the family jewellery stands raised therein. The petition of the impleading petitioners, informs of the family jewellery being huge and of the petitioner seeking to usurp the same. The undertaking given by the petitioner to the first respondent to effect a division of the family assets would not bind him but the first respondent certainly would be within its rights to investigate upon whether or not the petitioner wrongfully is holding on to the family jewellery and what, if any, are the offences made out. The petition shall stand dismissed.
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