Criminal proceedings cannot be used as a tool of harassment when civil remedies exist and have been adjudicated upon.

ORDER :

Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. to call for the entire records relating to the impugned charge sheet in C.C. No. 223 of 2014 on the file of the learned Judicial Magistrate-II, Madurai and quash the same.

1. This criminal original petition is filed with the prayer to call for the records relating to the impugned charge sheet filed in C.C. No. 223 of 2014 on the file of the learned Judicial Magistrate No. II, Madurai and to quash the same.

2. The case of the prosecution is that the de-facto complainant is the sister of the 1st petitioner herein. It is the allegation of the de-facto complainant that these accused being her brothers, originally in the year 2000, after the death of her father, got lease deed in respect of the father’s properties by promising to pay cash in respect of her share. Believing them, she also executed the release deed. However, only 12 years later, she came to know that immediately after the death of the father, an application was filed before the Commercial Tax Officer to change the commercial tax account in the name of the brothers alone by suppressing the fact that she is also one of the legal heirs.

3. On the strength of the above said allegations, the case in Crime No. 961 of 2013 was registered by the respondent police and after due investigation, the above final report was filed.

4. The learned counsel appearing on behalf of the petitioners would assail the final report on the grounds that, firstly, the business of the father was not a joint family business, and he was carrying on the business of the bookstore individually in his own name. The said fact is vouched by the counter affidavit filed by the Commercial Tax Department in the connected writ petition in W.P. (MD) No. 12114 of 2011. After the death of the father, the petitioners started a separate partnership firm and continued the business. Therefore, there is no question of them having suppressed the legal heirship certificate or produced any false legal heirship claim before the Commercial Tax Department. He would submit that as a matter of fact, the writ petition was also filed in respect of the same relief in W.P. (MD) No. 12114 of 2011 and ultimately when a counter was duly filed by the department in the said case, the petitioner/de-facto complainant left the same for default. He would further submit that simultaneously a civil suit was also filed by the de-facto complainant in O.S. No. 85 of 2007. The learned counsel for the petitioner would submit that even in the year 2007 itself, the de-facto complainant had filed O.S. No. 85 of 2007 and another one suit in O.S. No. 41 of 2016 on the file of the I Additional District Judge, Madurai. Both suits were tried together and by a common judgment and decree, the suits ended in favour of the petitioners herein. Specific issues were framed with reference to the validity of the release deed as to whether the plaintiff/de-facto complainant has been ousted from the suit properties and whether the plaintiff is entitled for partition etc, and the Civil Court has considered the evidence on record and answered the issues against the de-facto complainant herein. He would submit that while the very complaint is without any substance, the subsequent decree of the Civil Court would fortify the case of the petitioners and therefore, the final report is liable to be quashed.

5. Per Contra, the learned Government Advocate (Criminal side) would submit that this Court is concerned with the quashing of the final report. For the said purpose the statements given by the witnesses, during the course of the investigation, has to be taken as such on face value and if the statements are taken as such on face value, the de-facto complainant has stated that only by promising further share, she has been made to execute the release deed and subsequently she has been cheated and therefore, the offences would be made out. She would further submit that, immediately after the death of