Delhi District Court
Soul Communications vs Uttam Kr Singh on 10 March, 2025
IN THE COURT OF MS. SHIVALI SHARMA,
ADDITIONAL SESSIONS JUDGE - 03: WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Digitally signed
SHIVALI
by SHIVALI
SHARMA CNR No. DLWT01-006685-2024
SHARMA
Date:
2025.03.11
16:52:01
CR No.373/2024
+0530
u/s 397 Cr.P.C
PS- Moti Nagar
IN THE MATTER OF:
Soul Communication
Through its CEO-Sh. Kartik Chaudhary
15/2, 1st Floor, Shivaji Marg,
Moti Nagar,
Delhi-110015.
.............Revisionists
VERSUS
1. Uttam Kumar Singh & Anr.
Flat no. 303, 4th Floor, Plot 806,
Gali no. B, Ashok Vihar, Phase 1,
Sita Ram Mandir, Gurugram,
Haryana-122001.
2. Komal Singh w/o Uttam Nagar Singh
Flat No. 303, 4th Floor, Plot No. 806,
Gali No. B, Ashok Vihar Phase 1,
Sita Ram Mandir, Gurugram,
Haryana-122001.
............Respondents
Date of Institution : 06.08.2024
Date of Reserving Order :10.03.2025
Date of Order : 10.03.2025
CRIMINAL REVISION PETITION U/s. 397/399 Cr. P.C.
AGAINST THE ORDER DATED 30.07.2024 PASSED BY
LD. CJM, WEST, IN COMPLAINT CASE NO. 205/2024,
PS- MOTI NAGAR, TITLED AS SOUL
COMMUNICATION PVT. LTD VS UTTAM KUMAR
SINGH& ANR.
CR No. 3732024
Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar
Page No.1/13
ORDER:
1. Revisionist company i.e. Soul Communication Pvt. Ltd is aggrieved by impugned order dated 30.07.2024 passed by Ld. CJM, West, THC, Delhi whereby in complaint case bearing no. CC No. 205-2024 PS- Moti Nagar titled as Soul Communication Pvt Ltd Vs Uttam Kumar Singh & anr., its application under Section 156 (3) Cr. P. C. was dismissed and matter was listed for pre-summoning evidence.
2. The revisionist herein is the complainant before Ld. Trial Court while the respondents are the alleged accused persons before Ld. Trial Court. For the sake of convenience, the parties shall be referred by their nomenclature before Ld. Trial Court. BRIEF FACTS:
3. Brief facts necessary for the disposal of the present revision petition as stated in the complaint are that the complainant company had given a software development work to M/s Zoeq Technologies Pvt. Ltd and the alleged accused was the Team's Project Manager who would develop complainant company customized software application. During covid-19 pandemic M/s Zoeq Technologies Pvt. Ltd decided to close down its business and the handing over process of application started in February 2022. Thereafter, the company M/s Zoeq Technologies Pvt. Ltd was completely shut down and thus, the contract given by the complainant company could not be executed. Alleged accused no.1 was the project manager to whom the software development project was assigned by M/s Zoeq Technologies Pvt. Ltd and thus, he had each and every knowledge and information about the task and working of the complainant company. Alleged accused no.1 reached out to the CEO of the CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.2/13 complainant company Sh. Kartik Chaudhary regarding the software development project which could not be executed due to shut down of M/s Zoeq Technologies Pvt. Ltd. Alleged accused no.1 represented that he would like to individually developed the customized software as per the requirement of the complainant company alongwith alleged accused no.2, (wife of alleged accused no.1) while stating that he was not working anywhere. Alleged accused no.1 concealed the fact that he was working with GTROPY Systems Pvt. Ltd. situated in Gurugram. Thereafter, alleged accused no.1 & 2 designed the software for the complainant company and handover was given to the complainant company after entering into a contract dated 15.03.2022 with the complainant company which was duly signed by alleged accused no.1.
4. After completion of the development project, alleged accused persons again reached out to the complainant company stating that they would also be interested in continuing to do maintenance of complainant company's application and server on regular basis. On 12.09.2023, complainant company got information from the market that there are some new companies one of which was Fleetpay India Technology Pvt. Ltd having its office at Noida that has been formed consisting of complainant company's few ex-associates/employees and their relatives. Upon further inquiry the complainant company also came to know that alleged accused no.1 & 2 have been stealing complainant's company software and have sold the same to the above- mentioned company and few other companies without any knowledge or approval from the complainant company. The screen shots of the software and web designof the complainant CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.3/13 company and that of Fleetpay India have been placed on record alongwith the complaint. Alleged accused persons were contacted by the CEO of the complainant company but they did not reply or contact despite repeated efforts. Finally, alleged accused persons got in touch with CEO of the complainant company on 25.09.2023 and a meeting was scheduled for 26.09.2023 for discussing the copyright infringement matter. Alleged accused no.1 came for the meeting at the office of the complainant company He was asked to return the amount paid to him by the complainant company and to change the source code of Fleetpay India and other companies in which the source code of complainant company was used. However, alleged accused no.1 threatened to delete the source code and software of the complainant company and paralyze its day to day functioning. He also threatened to install a malware in the complainant company software through which anyone can freely access the database of the complainant company. Alleged accused no.1 also demanded Rs.50 lakhs from the complainant company in order to stop using and sharing their database and source code in the market. The CEO of the complainant company immediately called the police. Both alleged accused persons and CEO were taken to the police station and written complaint dated 26.09.2023 was filed. At the PS alleged accused no.1 gave in writing that he had shared source code of the complainant company with a company named Fleetpay and assured that he will destroy the source code and if any replications are created in future, he will be responsible for the same. However, even thereafter, alleged accused no.1 continued using the same source code and platform as that of complainant company and continued CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.4/13 selling the same in the market causing wrongful gain to him and wrongful loss to the complainant company.
5. No action was taken by the police. Complainants dated 11.10.2023 & 04.11.2023 in this regard were made to higher officials. Legal notice dated 06.11.2023 was also issued to the alleged accused persons but it was of no avail. The complainant company also applied for registration of their copyright on 06.01.2024 despite registration being not mandatory. By virtue of Section 45 (1) of Copyright Act, the complainant company is the owner of the source code developed by alleged accused persons on behalf of the complainant company and after payment of the remuneration for the same. In this manner the alleged accused persons are alleged to have committed offences under Section 63 & 64 of The Copyright Act which are cognizable and non- bailable.
6. Since no action was taken on the complaint made by the complainant company before police authority, the present complaint was filed under Section 200 r/w Section 156(3) Cr.P.C seeking direction for registration of FIR.
7. After filing of the present complaint ATR was called by Ld. Trial Court vide order dated 03.02.2024. ATR dated 27.02.2024 was filed by the IO ASI Jetha Ram. As per the ATR, no evidence of theft of software or source code or data was found and the main dispute between the parties was on account of development of software of Fleetpay India Technology Pvt. Ltd by alleged accused no.1. The matter was found civil in nature and the complaint was filed.
IMPUGNED ORDER:
8. After hearing the arguments on the application under CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.5/13 Section 156 (3) Cr. P. C., the same was dismissed vide impugned order dated 30.07.2024. Ld. Trial Court observed that from the allegations made in the complaint, application and affidavit, no cognizable offences were disclosed. In the light of facts and circumstances of the case, there was no need to invoke Section 156(3) Cr.P.C for issuance of direction for registration of FIR against the alleged accused persons as all the facts were well within the knowledge of the complainant, custodial interrogationof the alleged accused persons was not required, the evidence was well within the reach of the complainant and the assistance of police was not required for gathering the evidence and the facts of the case were not such that would warrant a detailed and complex investigation to be carried out by a State Agency.
9. It was also observed that if police investigation is required in the matter at a subsequent stage, the same can be done by resorting to powers u/s 202 CrPC.
10. With these observations, the application under Section 156 (3) Cr.P.C. filed by the complainant was dismissed by Ld. Trial Court vide impugned order dated 30.07.2024 and the matter was proceeded further for recording of pre-summoning evidence.
SUBMISSIONS ON BEHALF OF THE REVISIONIST/COMPLAINANT/GROUNDS OF REVISION:
11. In the present revision petition, the impugned order dated 30.07.2024 is challenged on the ground that Ld. Trial Court has failed to appreciate the fact that investigation was required in the present case so as to identify and unearth as to how many companies or individuals, the alleged accused persons have sold CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.6/13 and copied the source code and web portal of the revisionist company. Ld. Trial Court ignored the fact that the investigation was required as only during investigation the electronic devices such as laptop, mobile phones and hard disc of the accused persons used for copyright infringement can be traced and recovered. Ld. Trial Court also failed to appreciate the fact that alleged accused no.1 had himself given in writing to the IO that he had shared the source code of the complainant company with Fleetpay thus committing a copyright infringement punishable under Section 63 & 64 of Copyright Act 1950 which are cognizable and non-bailable offences. It is also alleged that recently the complainant company had come to know that the accused had replicated its source code and sold it to other companies namely Click-pe and PayMine. It is submitted that the collection of evidences and recovery of source code is urgent and necessary in the present case for which the assistance of investigating agency is required. Accordingly, the complainant company is not in a position to procure the entire evidence for getting alleged accused persons prosecuted and the assistance of State is necessary for effective prosecution of the accused persons and for stopping them from constantly selling the source code and tampering with the evidence. All these facts of the case have been ignored by Ld. Trial Court while passing the impugned order dated 30.07.2024 and accordingly, setting aside of the impugned order is prayed and directions for registration of FIR and investigation in the matter are sought.
12. Ld. counsel for the revisionist has argued in line with the grounds of revision. He has also relied upon the following citations:-
CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.7/13
(i) Mukesh Kharwal Vs State of UP & Ors: 2024 SCC online Allhabad 6035 wherein it has been held that merely because the facts of the case are within the knowledge of the application, it is not sufficient to dismiss an application u/s 156 (3) Cr.P.C
(ii) Srinivas Gundluri & Ors. Vs. Sepco Electric Power Construction Corporation & Ors.: (2010) 8SCC 206 wherein it has been held by the Apex Court that when a complaint discloses the commission of cognizable offence, directions should be issued for registration of FIR and investigation in the matter.
(iii) Knit Pro International Vs State: (2022) 10SCC 221 wherein the Apex Court had held that offence under Section 63 of the Copyright Act is cognizable and non-bailable.
(iv) V.S Sharma Vs J. Dharma Rao: 1951 MWN 871 decided on 17.01.1941 wherein it has been held that if the complaint discloses offences under copyright Act its dismissal on the ground that the dispute is of a civil nature cannot be sustained.
(v) Lalita Kumari Vs Government of UP: 2014 (2SCC) 1 wherein the Apex Court had mandated registration of FIR where complaint discloses cognizable offences.
(vi) K. C. Bukaria Vs Dinesh Chandra Dubey 1999 (1) MPLJ wherein it has been held that criminal prosecution for infringement of copyright is sustainable without registration under Section 45 of the Act.
13. Relying on these citations, setting aside of the impugned order is prayed.
ARGUMENTS ON BEHALF OF ALLEGED ACCUSED PERSONS/RESPONDENTS:
14. On behalf of alleged accused persons, no written reply has been filed but the present revision petition has been vehemently CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.8/13 opposed. It is submitted that the impugned order is a well reasoned order passed on the basis of material available on record and does not deserve any interference from this Court. The impugned order is not a mechanical order but a detailed order and cannot be interfered with until and unless any jurisdictional error or error of law is noticed therein. It is submitted that by filing the present complaint case and revision petition, the complainants are simply trying to give a criminal color to a civil/business transaction. It is submitted that as per the own documents of the complainant placed before Ld. Trial Court, the complainant company had no agreement with any of the alleged accused persons rather its agreement was with Zoeq Technologies. There is no clarity as to what is the copyright for infringement of which the complainant is seeking registration of FIR against the accused persons. Even if the allegations in the complaint are taken at their face value, the agreement of the complainant was at the most with alleged accused Uttam Kumar only and his wife Komal has been roped in without any rhyme or reason just to pressurize alleged accused Uttam Kumar. In addition to this, the complainant company has miserably failed to plead as to what loss has been suffered by it due to the alleged offences committed by the alleged accused persons. In its original complaint dated 26.09.2023 made to police officials as well as legal notice dated 06.11.2023, the allegations are regarding offences of cheating and criminal breach of trust for which damages have been sought vide legal notice dated 06.11.2023, however, as per the complaint u/s 200 CrPC, there are allegations of copyright infringement which is an entirely different offence. In these circumstances, the complainant has CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.9/13 been rightly called upon to lead pre-summoning evidence and prove the allegations by leading evidence before summoning the alleged accused persons. There is no infirmity or illegality in the impugned order and no ground is made out for interfering with the same. Hence, dismissal of the present revision petition is sought.
FINDINGS:
15. I have heard the submissions made and carefully perused the Trial Court record as well as the documents relied upon by all the parties.
16. It is held by the Apex Court in Kishan Lal Vs. Dharmender Bafna & Anr. Crl. No. 1283/2009 that a revisional court should not interfere with the discretionary jurisdiction exercised by Ld. Magistrate unless a jurisdictional error or an error of law is noticed.
17. In Sanjaysinh Ramrao Chavan Vs Dattatray Gulab Rao Phalke Crl Appeal No. 97/2015 (SC); K Ravi Vs State of Tamil Nadu & Anr. SLP Crl No. 2029/2018; Rajender Singh Thakur Vs State & Anr. Crl Revision Petition no. 155/2022 and State of Kerala Vs Puttumana Illah AIR 1999 SC 981, Superior courts have time and again highlighted the scope of revisional jurisdiction which is limited to satisfying itself as to correctness, legality or propriety of any finding, sentence or order passed by an inferior court. The purpose of revisional power is only to set right a patent defect or an error of jurisdiction or law and it is not to be equated with that of an appellate court.
18. Perusal of the impugned order shows that it is a detailed and reasoned order passed after considering the overall facts of the case, submissions made by the complainant as well as the CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.10/13 ATRs filed by the IO. Ld. Trial Court has also duly appreciated various documents placed on record by the complainant.
19. Considering the overall facts of the case and the impugned order, I am of the opinion that Ld. Trial Court had passed a legal and reasonable order and has rightly observed that the complainant is in know of the accused persons and the entire evidence is within his control. No facts are required to be unearthed and custodial interrogation of alleged accused persons is not necessary. Moreover, in the present case, the allegations made in the application u/s 156(3) CrPC as well as complaint u/s 200 CrPC are in addition to the allegations made in the original complaint made before police authorities as well as legal notice issued to the alleged accused persons prior to filing of the present case. There is no averment of violation of any kind of copyright in the original complaint dated 26.09.2023 and legal notice dated 06.11.2023. Rather, the allegations are of the threatenings given by the alleged accused Uttam Kumar Singh of installing a malware in the software of complainant's company and/or deleting the software code in case his demand of Rs. 50 lacs was not met. However, in the present complaint, there are additional allegations of violation of copyrights owned by the complainant company. No complaint regarding any copyright violation was made to the police prior to approaching the Court u/s 156 (3) CrPC. Thus, the application u/s 156(3) CrPC seeking registration of FIR under Copyrights Act, is even otherwise not maintained.
In these circumstances, until and unless the complainant can substantiate his contention of the alleged cheating done with him by the alleged accused persons, the demands made and the alleged violation of copyrights vested in the complainant CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.11/13 company, no cognizable offences are reflected as prima facie from the allegations, no dishonest intention from inception is reflected and the violation of copyright, if any has not been complained about to the police authorities.
20. I also do not find any merit in the argument of Ld. Counsel for the complainants that assistance of investigating agency is required for recovery of the devices used by alleged accused persons for copyright violation as the alleged copyright violation has not been reported to the police. Even otherwise, Ld. Trial Court has already observed that in case, assistance of investigating agency is required at a future date, resort can be taken of Section 202 CrPC.
21. In these circumstances, Ld. Trial Court has rightly directed the complainant to prove its case by leading pre-summoning evidence before any action can be initiated against the alleged accused persons. Assistance of investigating agency is not required at this stage. No jurisdictional error or error of law is noticed in the impugned order dated 30.07.2024. Ld. Trial Court cannot be held guilty of non-application of mind or unreasonableness or palpable misreading of facts or any perversity while passing the impugned order dated 30.07.2024.
22. Considering the fact that copyright violation has not been reported to the police prior to filing of the present complaint. It is considered appropriate that before proceeding further, the complainant is called upon to prove the allegations made by him against the alleged accused persons by entering into the witness box and making a statement on Oath as has been directed by Ld. Trial Court vide impugned order dated 30.07.2024.
23. In view of the reason given above, I find no reason to CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.12/13 interfere with the impugned order dated 30.07.2024. No infirmity or illegality is observed in the impugned order dated 30.07.2024. Accordingly, the same is upheld and present revision petition stands dismissed.
24. Nothing expressed herein shall tantamount to an expression of opinion on the merits of the case.
25. TCR be sent back with a copy of the order.
26. Revision file be consigned to Record Room after completion of all legal formalities.
Digitally signed SHIVALI by SHIVALI SHARMA SHARMA Date: 2025.03.11 Announced in open Court 16:52:10 +0530 Dated: 10.03.2025. (Shivali Sharma) Additional Sessions Judge-03 (West) Tis Hazari Courts, Delhi 10.03.2025. CR No. 3732024 Soul Communication Pvt. Ltd. Vs Uttam Kumar Singh PS Moti Nagar Page No.13/13