Delhi District Court
Cr No.33/14 vs Rupesh Kumar on 7 November, 2014
IN THE COURT OF SHRI ATUL KUMAR GARG: ASJ-03:
(CENTRAL) TIS HAZARI COURTS : DELHI
CR No.33/14
Central Bureau of Investigation
EOU-IX/EO-III
5-B, 6th Floor, CGO Complex,
Lodhi Road, New Delhi-110003.
... Revisionist
Versus
Rupesh Kumar
S/o Shri Prahlad Lal Sharma
R/o B-22, Dayal Bagh, Faridabad
...Respondent
Date of Institution : 29.08.2014
Date of Arguments : 30.09.2014
Date of Decision : 07.11.2014
ORDER
1. Short question arising in this revision petition is whether the CBI, premier Investigating Agency is precluded from supplying the copies of the documents mentioned at serial no.40-43 in this case to the accused on the ground that accused will misuse the source code if it supply the documents as referred to the accused. State through CR No. 33/14 State (CBI) Vs. Rupesh Kumar Page No.1 CBI has stated that order passed by the ld. CMM dated 21.11.2009 as well as 08.02.2011 is required to be recalled because ld. CMM has failed to appreciate the fact that there is no apprehension on the part of prosecution that the documents may be tampered during the course of making copies. Even if GEQD makes copy, they cannot be embeded with the Unite Protect Software as chance of tampering with the original is very high in the absence of Unite Protect Software.
2. Alongwith the revision petition, an application under Section 5 of Limitation Act has also been filed thereby seeking condonation of delay in filing the criminal revision. The delay is stated by the CBI is that the CBI filed a revision petition under Section 482 Cr.P.C. in the Hon'ble High Court bearing No.163/2011. On 16.07.2014, Hon'ble High Court passed the order in CR No.163/11 vide which the petition was dismissed as withdrawn with liberty to the petitioner to approach the appropriate forum.
3. Respondents have replied both the applications under Section 5 of Limitation Act as well as revision petition. He has submitted CR No. 33/14 State (CBI) Vs. Rupesh Kumar Page No.2 that revision petition has been filed by the state after the delay of 1740 days, thus, squarely barred by Law of Limitation. He has submitted that on 28.7.2009 he has moved an application under Section 207 Cr.P.C. for supply of statement, documents and mirror image copy of hard disk/ compact disk. CBI in its reply dated 13.08.2009 refused to supply the above said documents on the ground that either it was lying in sealed condition of GEQD Hyderabad or on the ground of apprehension of being misused by the accused. On 21.11.2009 after hearing the arguments and considering the law laid down by the Hon'ble High Court in the matter of Dharambir Vs. CBI cited as 148 (2008) DLT 289, ld. CMM passed a detailed order directing the CBI to supply the mirror image of the hard disk mentioned at serial no.40 & 41 within one month, supply the copy of the documents D-42 & D-43 within one month and accused to file an affidavit regarding not misusing the document D-42 & D-43. On 18.12.2009, just two days before the compliance as per the order dated 21.11.2009, the IO of the case filed an application for taking possession of the hard CR No. 33/14 State (CBI) Vs. Rupesh Kumar Page No.3 disk for making mirror image and extension of period of one month to complete the process as the lab is having other assignments at its disposal. This application was in regard to the hard disk, D-40 & D-41 and there is no whisper about the documents D-42 and D-43, the copies of which are to be supplied within one month from the date of order. On 18.1.2010, CBI filed another application for modification of the order dated 21.11.2009 and also for exemption from providing the copies of the documents D-42 & D-43. Vide order dated 08.02.2011, ld. CMM dismissed the review application filed by the CBI and directed them to comply with the order dated 21.11.2009. CBI has not complied with the order of ld. CMM dated 08.02.2011 and filed an application for extension of time on 8.3.2011 for further one month to comply with the order dated 21.11.2009 and they had not complied with the order dated 21.11.2009, which amount to continuous contempt of court. He has submitted that revision petition be dismissed and CBI be directed to comply with the order.
4. The facts in detail of this case are that on the basis of CR No. 33/14 State (CBI) Vs. Rupesh Kumar Page No.4 complaint filed by Alok Gupta, Director M/s Unistal Systems Pvt. Ltd., a case was registered under Section 65 of I.T. Act, 2000 and Section 63 read with Section 14(b)(ii) of the Copy Right Act against the respondent, an ex-employee of the company in the year 2005 for theft of source code of its proprietary software developed by it. Proprietary software was in the name of Quick Recovery for Mac, Novell & Novell NSS. It was sold to US based Website by the name of DTIDATA.COM owned by Dave for a profit after making some cosmetic changes in the same by the name of 'Recover it All for Mac, Novell & Novell NSS'. The demo version of the software 'Recover it All for Mac, Novell & Novell NSS' was compared by the complainant with his own software, 'Quick Recovery for Mac, Novell & Novell NSS' on five parameters using a tool called 'Resources Hacker' and it was found that the executable files present in both the softwares were same. The screen printouts of both the softwares were handed over by the complainant in which the similarities were reflected. Also the demo versions of the stolen software 'Quick Recovery for Mac, Novell & Novell NSS' was CR No. 33/14 State (CBI) Vs. Rupesh Kumar Page No.5 handed over for comparison in the form of a CD. Respondent was also an employee in the company of the complainant and the accused with his assistant developed the software Quick Recovery for Mac, Novell & Novell NSS for the complainant. However, respondent left the company and he misused the source code and manipulated the software by making cosmetic change in the software and sold to the US and made profit. After completion of the investigation, charge sheet was filed in the year 2007. On 8.7.2009, ld. Counsel for the accused Rupesh Kumar filed an application for supply of deficient copies. Vide order dated 21.11.2009, ld. CMM vide detailed order had allowed the application of the accused and directed the CBI to supply the mirror image copy of the Hard Disk mentioned at serial no.40 and 41 to the accused within one month from today. It was further ordered that copies of the documents at serial no.42 and D-43 be also supplied to the accused person within a period of one month. It was further directed that accused shall file an undertaking by way of affidavit stating that after receiving the copy of the compact disk CR No. 33/14 State (CBI) Vs. Rupesh Kumar Page No.6 containing the original source code of Quick Recovery for Mac, Novell & Novell NSS i.e. document D-42 and D-43, that he will not misuse the same and shall be liable for prosecution in accordance with the law in case it is found that the same has been misused. Thereafter, an application for modification of the order was filed. Ld. CMM has dismissed the revision application and directed the CBI to supply the same within four weeks.
5. Against the impugned order dated 21.11.2009 and 08.02.2011, the CBI filed the revision petition stating that it has filed the criminal revision misc. petition in the Hon'ble High Court of Delhi and he was prosecuting the revision petition diligently before the Hon'ble High Court, therefore, the delay in filing the revision petition be condoned and it be exempted from suppling the mirror image of documents i.e. hard disk of Q1 & Q2 seized from the residence of the accused Rupesh and mark D-40 and D-41 in the charge sheet and the CD containing the original source code of Quick Recovery for Mac, Novell & Novell NSS because of possibility of misuse by the accused and tempering while making CR No. 33/14 State (CBI) Vs. Rupesh Kumar Page No.7 clone, cannot be ruled out.
6. So far so the delay in filing the revision petition is concerned that is immense. CBI knowing very well that if any grievance is existed against the order passed by the ld. CMM, appropriate forum for filing the same is Sessions court and not the Hon'ble High Court. Though both the Hon'ble High Court and the Sessions court have revisionary powers but the Hon'ble High Court had sprangly used the revisionary jurisdiction directly from the order passed by the ld. CMM. CBI is assisted by the expert legal advisors. It is not the layman case that it did not know the law. Therefore, the delay cannot be condoned. Revision petition on this count alone can be dismissed.
7. Now, come to the case on merits. This case has been hanging since 2007 only for supplying the copies of the documents relied by the CBI. More than seven years have been passed but still the CBI is reluctant in supplying the copy of the documents for one reason or the other and has been filing the applications and is not complying with the directions passed by the ld. CMM. There is fear CR No. 33/14 State (CBI) Vs. Rupesh Kumar Page No.8 only on the part of the CBI for supplying the mirror image of the hard disk and compact disk that the accused might have misuse the same but that fear has been allayed by the ld. CMM while demanding the undertaking from the accused that he will not misuse the source code. Argument that the accused shall mint the money by misusing the same is far away from merits. He had sold the source code only for a meager amount of Rs.5,00,000/- onwards in the year 2005. There is no answer from the CBI whether the software is unique and there is no other software in the market for the recovery of lost data from the logical cracked hard disk. Number of softwares are available in the market, so the arguments of the CBI has no force that by supplying the mirror image of the documents as mentioned in the list, the complainant will loose its money and is in violation of Copy Right Act.
8. Under Section 207 of the Cr.P.C. the prosecution is bound to supply the copy of the police report and documents relied by him. There is no excuse for supplying the above said documents on the part of the prosecution agency for supplying the copies of the CR No. 33/14 State (CBI) Vs. Rupesh Kumar Page No.9 documents relied by him. Word Data includes not only active memory of the computer but even subcutaneous memory.
9. In view of the above discussions, I find no merit in the revision petition. The revision petition stands dismissed subject to cost of Rs.20,000/-, which is to be deposited in the trial court within two weeks of passing the order. Revisionist/ CBI is directed to comply with the order passed by ld. CMM dated 21.11.2009 as well as 08.02.2011 within one month. TCR alongwith a copy of this order is sent back to the trial court. Revision file is consigned to record room.
Announced in open court On 07.11.2014 (ATUL KUMAR GARG) Addl. Sessions Judge-03 (Central)/ Delhi CR No. 33/14 State (CBI) Vs. Rupesh Kumar Page No.10 CR No.33/14 State Vs. Rupesh Kumar 07.11.2014 Present: Revisionist in person with counsel.
Vide my separate order announced in open court, the revision petition is dismissed. TCR alongwith a copy of this order is sent back to the trial court. Revision file is consigned to record room.
(ATUL KUMAR GARG) Addl. Sessions Judge-03 (Central)/ Delhi.
07.11.2014 CR No. 33/14 State (CBI) Vs. Rupesh Kumar Page No.11