Delhi District Court
Niraj Dhar Dubey vs Central Bureau Of Investigation on 23 January, 2016
IN THE COURT OF SANJAY GARG-I : SPECIAL JUDGE-IV,
(PC ACT) CBI: DELHI.
CR No. 44/2015
ID No: 02401R0661962015
1.Niraj Dhar Dubey
2.Nilesh Dhar Dubey
Both sons of Sh. Shailendra Narain Dubey
H. No. E-2, Defence Enclave,
Chhapraula, Tehsil Dadri,
District Gautam Budh Nagar,
Uttar Pradesh.
Permanent R/o H. No. 456, Shivaji Nagar,
Shivpuri Colony, District Gorakhpur,
Uttar Pradesh. ... Petitioners
Versus
Central Bureau of Investigation
Branch at CBI SPE EOU IX, Delhi. ... Respondent
Date of Institution: 05.12.2015
Date of Arguments: 15.01.2016
Date of Judgment: 23.01.2016
ORDER
1.Vide this petition, order impugned is dated 02.09.2015 vide which the Ld. trial court ordered for framing of charge under Section 120-B read with Section 381 IPC and Section 65 & 66 I.T. Act, 2000 against both the petitioners. Accordingly, charge was given to both petitioners and substantive charge for offence under Section 381 IPC and 65 & 66 I.T. Act 2000 was framed against petitioner no.1.
2.Brief facts of the prosecution case are that charge sheet was fled CR No 44/2016 Niraj Dhar Dubey & anr. Vs. CBI Page 1 of 9 against both the petitioners by CBI under Section 65 & 43 I.T. Act and Section 120-B read with Section 381 IPC. The FIR is on the basis of complaint made by M/s AKS Software Ltd. which is a company duly incorporated in India having its office at A-1/169, Safdarjung Enclave, New Delhi and is engaged in the business of Agriculture Management Software. The complainant had developed this software known as AMS (Agriculture Management Software). The complainant company has also developed three other software, being "CCS Project" software, "Web-based Reports Project" software and "Smart Weighment Project" software. All these software and their source codes have been developed by the complainant company. Source codes of the above mentioned four software of the complainant company consists of listing of programs, computer commands, design and layout and programme analysis of computer resources in any form. In complainant's business source code of software is considered very precious and that is the main "assets" any software company creates. This source code is not passed on to customers, they are only licenced to use the executable programs and therefore cannot make any change in the software provided to them and software remains property of the company.
3.The aforesaid software and their source codes are the original, literary works of the complainant company within the meaning of Copyright Act. These softwares are extremely expensive and has taken more than two decades of man hours. The market value of said source code runs into crores of rupees. On 1.10.2007, petitioner no.1 was recruited in the complainant company as Senior Software Engineer and he was trained by the company to work on AMS software project. He remained employed in the company for more CR No 44/2016 Niraj Dhar Dubey & anr. Vs. CBI Page 2 of 9 than 2 years and then resigned from service. He was relieved from the service on 16.12.2009. During the service, petitioner no.1 has worked on AMS software projects of complainant's important customers, namely Mumias Sugar Company Ltd., Kenya and Kakira Sugars Works (1985) Ltd., Uganda. Petitioner no.1 had officially visited sites at Uganda and Kenya for implementation and support work of these projects.
4.The source code lies on server computer in the company office which allows senior employees of the company like petitioner no.1 privilege of access the source code of AMS software, CCS project, Smart Weighment and Web-based Report projects. Recently, company was going through its electronic records and logs and has discovered that before leaving the complainant company, petitioner no.1 has dishonestly and intentionally stolen source code of AMS for Kakira Sugar Project by coping it from the complainant company server kept in the premises of the company and this was done with malafide intention without knowledge and authority of his superior. On examination of the computer that was handed over to petitioner, while in employment of the company, it was discovered that he has copied CCS project software source code on his laptop from the complainant company server on 23.9.2009. He copied Web-based Reports Project on 9.11.2009. He e-mailed technical documents of Kakira Project to his personal e-mail ID on 23.9.2009 and 26.9.2009 and 16.11.2009. As per Company rules, employees are supposed to use official e-mail ID for official purpose and they are not allowed to use personal ID, since company has no control over those e-mails. The Smart Weighment Project software (Kakira version) source code was found on the laptop of the petitioner. The company had found CR No 44/2016 Niraj Dhar Dubey & anr. Vs. CBI Page 3 of 9 that petitioner no.1 had undertaken employment at Software Applications Ltd. Kampala (Uganda), the sister concern of Kakira Sugars Works (1985) Ltd. Uganda which is under the direct control of the same management. Petitioner no.1 had passed on this source to his present employer and/or M/s Kakira Sugar Works (1985) Ltd. for vested reasons. He was also assisted by his customer and Nilesh Dhar Dubey, i.e. petitioner no.2, who is a software professional and is well familiar with all nuances and aspects pertaining to source code software. This software has been stolen with meticulous planning by petitioner no.1. along with his brother,i.e. petitioner no.2 and with complainant's customer company M/s Kakira Surgar Works (1985) Ltd., Uganda. Since they have secured source code of AMS, they do not have to pay the company for making changes in the software and can also use it for their other sugar factories. Petitioner no.1 has been rewarded for stealing the source code in the form of lucrative employment in Uganda by Kakira management in their software company. Both petitioners have leaked confidential data and information to M/s Kakira Sugar Works, Uganda.
5.After registration of the FIR, it was reveled that petitioner no.1 was leaving the country to Uganda on 11.4.2010 via Mumbai and he was apprehended from the IGI Airport. From his possession source code of AMS in the form of CD for Kakira Project and Kakira database in the form of another CD were recovered. His personal laptop was also taken in possession.
6.As per CFSL report 2 CDs which were seized from petitioner no.1 were found to contain all the important files of the source code of Agricultural Management System as well as data base file of AMS CR No 44/2016 Niraj Dhar Dubey & anr. Vs. CBI Page 4 of 9 Project, Kakira AMS-DB.xis. The CFSL report also establish that laptop seized from the possession of petitioner no.1 contain all the important file of server code of software AMS, Smart Weight Project, CCS Project and Web Based Project Report. The Pen drive that was seized from personal possession of petitioner no.1 contained important files of the source code AMS.
7.Heard arguments of Sh. Sudhanshu Tomar, Ld. counsel for petitioners and Sh. Anil Tanwar, Ld. PP for CBI. Perused the record.
8.Sh. Sudhanshu Tomar, Ld. counsel for petitioner has submitted that Ld. trial court has failed to appreciate that I.T. Act is a special provision to deal with the cases and offences and the alleged allegations in the present FIR are fully covered under the said Act. Ld. trial court has failed to appreciate that the alleged offences are under special provisions and no charge can be framed under general provisions. It has been stated that the Ld. trial court erred in charging the petitioners under Section 381 IPC. It has been state that source code is intangible property but as per Section 378 IPC which defines theft, only movable property can be subject matter of theft. It has been stated that Section 43 (j) of I. T. Act covers such offences as alleged by the prosecution against the petitioners. It has been sated that Ld. trial court failed to appreciate that all the allegations are against the company, i.e. Kakira Sugar Works Ltd., the company doing business in Uganda and respondent is doing further investigation against this company. In support of his submissions, Ld. counsel for appellant has relied upon the following judgments:-
(i) South India Corporation (P) Ltd. Vs. Secretary Board of Revenue, Trivandrum & anr. [AIR 1964 SC 207];CR No 44/2016 Niraj Dhar Dubey & anr. Vs. CBI Page 5 of 9
(ii) Union of India & anr. Vs. India fisheries Private Ltd. [AIR 1966 SC 35]; &
(iii) Maharashtra State Electricity Board Vs. Deputy Commissioner of Income Tax [(2004) 90 ITD 793 (Mumbai)].
9.On the other hand, Ld. PP for CBI has submitted that source code is a property, hence, offence alleged gets duly covered under Section 381 IPC. It has been stated that under Section 220(3) Cr.P.C. if act alleged constitute an offence falling within two or more separate definitions of any law, then accused may be charged with and tried at one trial for each such offences. In support of his submissions, Ld. PP has relied upon Pyare Lal Bhargava Vs. State of Rajasthan [1963 AIR 1094].
10.One of the main contention raised by Ld. counsel for petitioners is that ingredients of offence under Section 381 IPC are not there, as per allegations made in the charge sheet, hence, Ld. trial court erred in framing charge under Section 381 IPC.
11.Section 378 IPC defines theft as follows:-
"378. Theft.- Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Explanation 1.-A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.- A moving effected by the same act which affects the severance may be a theft. Explanation 3.- A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from CR No 44/2016 Niraj Dhar Dubey & anr. Vs. CBI Page 6 of 9 any other thing, as well as by actually moving it. Explanation 4.- A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.- The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having that purpose authority either express or implied."
12. Section 22 IPC defines movable property as follows:-
"22."Movable Property".- the words "movable property" are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth."
13. As per allegations against petitioner no.1, he has stolen source codes of AMS for Kakira Sugar Project and other source codes by copying it from the server of the complainant company kept in the premises of complainant company without knowledge or authority of the superiors.
14.Ld. PP for CBI has submitted that intention of petitioner no.1 was to cause wrongful gain for himself and wrongful loss to the complainant company by wrongfully copying the source code from the server of the company and he has moved the valuable property of the company. To support his submissions, Ld. PP for CBI has relied upon observations made by Apex Court in Pyare Lal (supra). In this case accused was working as Superintendent in the Chief Engineer's office, got a file removed from the Secretariat through a clerk, took it home and made it available to his friend, the co-
CR No 44/2016 Niraj Dhar Dubey & anr. Vs. CBI Page 7 of 9accused, who removed certain documents by substituting others and accused returned the file to the office next day. Subject matter of theft in this case was file which was movable tangible property, hence, facts of this case are distinguishable from the facts of the present case. Moreover, Section 43(j) of I.T Act, 2000, specifically deals with the allegations of stealing of source code.
15.There is no doubt, as provided under Section 220(3) Cr.P.C., if act alleged constitute an offence falling within two or more separate definitions of any law in force for the time being, accused may be charged for each such offences. But in addition to charging the accused for the offence under Section 43(j) of I.T Act, 2000, the necessary ingredients of Section 381 IPC should have to be there.
16.As already discussed, copying of the source code from the server of the company, not being a movable property, does not fall under the definition of theft as defined under Section 378 IPC. Therefore, accused are discharged for the offence under Section 381 IPC.
17.The other contention raised by Ld. counsel for the petitioners is that there is absolutely no evidence against petitioner no. 2 and he has been wrongly charged.
18.As per the prosecution case, there is recovery of 2 CDs from possession of petitioner no.1 when he was apprehended at Bombay Airport. On these CDs writing "Kakira AMS latest 31.8.09" and "Kakira DB 31.8.09" is in the handwriting of petitioner no.2. The CFSL report establish this fact. There is evidence as per recovery memo dated 12.4.2010 that petitioner no.1 has received E-mail from petitioner no.2 explaining him the commands required for copying the source code. As per search list (D-46), there is recovery of one Laptop make HP Compaq and one pen drive make Kingston 4 GB CR No 44/2016 Niraj Dhar Dubey & anr. Vs. CBI Page 8 of 9 from the bedroom of petitioner no. 2 As per the CFSL report (D-51) the source codes were found on the laptop and pen driver recovered from the bed room of petitioner no.2.
19.The law is settled that at the time of framing of charge, the court has to sift and weight the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out. Reliance is placed on Union of India Vs. Prafulla Kumar [AIR 1979 SC 366].
20.In view of the aforesaid reasons, it is held that the Ld. trial court fell in error by giving charge to petitioner no.1 under Section 381 IPC as substantive offence and to petitioner no.2 as one of the offence in criminal conspiracy under Section 120-B/381 IPC. However, no fault is found in the remaining order and the same is, accordingly upheld. The revision petition is, accordingly partly accepted.
21. Copy of this order along with TCR be sent back to the Ld. Trial Court.
22. File of the revision petition be consigned to Record Room.
Announced in open court (SANJAY GARG-I)
on 23.01.2016 SPECIAL JUDGE-IV, CBI (PC Act)
TIS HAZARI
COURTS, DELHI
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