Karnataka High Court
Sri Chander Rajagopal vs State Of Karnataka on 13 December, 2021
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.8135 OF 2018
BETWEEN:
1. SRI CHANDER RAJAGOPAL
S/O LATE RAJAGOPALAN,
AGED ABOUT 58 YEARS
R/O. NO. AG-16 MAY FLOWER,
BRIGADE MILLENNIUM,
J.P. NAGAR, VII PHASE,
BENGALURU - 560 076.
2. SRI. GAUTAM JANARDHAN
S/O. P JANARDHAN,
CEO JENESYS TECHNOLOGIES,
AGED ABOUT 47 YEARS
HAVING OFFICE AT NO. 45/A,
4TH FLOOR, GREEN ARCH,
1ST MAIN, J.P.NAGAR,
III PHASE, BENGALURU - 560 078.
... PETITIONERS
(BY SRI VIJETHA R.NAIK, ADVOCATE (PHYSICAL
HEARING))
AND:
1. STATE OF KARNATAKA
BY INDIRANAGAR POLICE STATION,
BENGALURU,
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
2
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. FIRE PRO SYSTEMS P. LTD.,
REGISTERED OFFICE,
100 FEET ROAD,
HAL II STAGE, INDRANAGAR,
BENGALURU 560008.
REPRESENTED BY VIJAY KUMAR.
... RESPONDENTS
(BY SMT.NAMITHA MAHESH B.G., AGA FOR R1 (PHYSICAL
HEARING);
SRI BIBHAS V.KITTUR, ADVOCATE FOR R2 (VIDEO
CONFERENCING))
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., A.QUASH THE FIR IN CRIME NO.356/2011, REGISTERED
BY THE INDIRANAGAR POLICE AGAINST THE PETITIONERS FOR
THE OFFENCES P/U/S 408 OF IPC AND 72 AND 72A OF
INFORMATION TECHNOLOGY ACT.
B.QUASH THE PROTEST PETITION DATED 22.10.2016, FILED
BY THE RESPONDENT NO.2 HEREIN IN CRIME NO.356/2011.
C.QUASH THE ORDER DATED 31.07.2018, PASSED BY THE
LEARNED I ACMM, BANGALORE IN CRIME NO.356/2011,
REJECTING THE 'B' REPORT AND DIRECTING THE OFFICE TO
REGISTER CRIMINAL CASE AGAINST THE PETITIONERS FOR NO
OFFENCES.
D.QUASH THE CRIMINAL CASE NO.21975/2018, PENDING ON
THE FILE OF THE LEARNED I ACMM, BANGALORE.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 30.11.2021, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
3
ORDER
The petitioners are before this Court seeking the following prayer:
"WHEREFORE, the petitioners most humbly pray that this Hon'ble Court may be pleased to:
(a) Quash the FIR in Crime No.356/2011 registered by the Indiranagar Police against the petitioners for offences punishable under Sections 408 of IPC and 72 and 72A of Information Technology Act;
(b) Quash the protest petition dated 22-10-2016 filed by the respondent No.2 herein in Crime No.356 of 2011;
(c) Quash the order dated 31-07-2018 passed by the learned I Additional Chief Metropolitan Magistrate, Bengaluru in Crime No.356/2011 rejecting the 'B' report and directing the office to register Criminal Case against the petitioners for no offences;
(d) This Honourable Court be pleased to quash the Criminal Case No.21975 of 2018 pending on the file of the learned I Additional Chief Metropolitan Magistrate, Bengaluru.
(e) Grant such other relief or reliefs as this Hon'ble Court deems in the facts and circumstances of the case, in interest of justice and equity."4
2. Heard Smt. Vijetha R.Naik, learned counsel for the petitioners, Smt. Namitha Mahesh.B.G., learned Additional Government Advocate for respondent No.1 and Sri Bibhas V.Kittur, learned counsel for respondent No.2.
3. Brief facts leading to the filing of the present criminal petition, as borne out from the pleadings, are as follows:
The petitioners are accused 1 and 3 in Crime No.356 of 2011 which has now become C.C.No.21975 of 2018. 1st petitioner was in service of one Fire Pro Systems Private Limited (hereinafter referred to as the 'Company' for short) and is the General Manager of a unit named BoltZ, which was a Home Intelligence division of the Company. One Channayya, an employee of the Company was discharging his duties as Senior Executive in Boltz. 2nd petitioner was working in a company called Jenesys Technologies which is the competitor in the market to the Company. The 2nd respondent would be hereinafter referred to as the complainant. A complaint is registered against the petitioners by the complainant alleging 5 that petitioners got in touch with Mr. Channayya and had divulged confidential information pertaining to its client AMX with regard to the statement of prices of the products of AMX, which is an American Company. It is the allegation that such confidential information was held by Mr. Channayya and was handed over to Mr. Channayya with strict confidence and in furtherance of certain contractual obligation.
4. It appears that on 27-09-2011 complainant/Company alleged certain irregularities committed by the 1st petitioner who was then functioning as General Manager of Boltz (Intelligence). The allegation was that on 13-09-2011 at about 3.00 p.m. the 1st petitioner called the aforesaid Mr. Channayya to his office and told him that he require the price list of AMX urgently and asked him to forward to his e-mail ID and mark a copy to the 2nd petitioner and to Jenesys, a competitor of the complainant Company. It is further alleged that the 2nd petitioner again called Mr. Channayya to his office and asked him to forward the price list of AMX failing which, he would report disobedience of 6 conduct of Mr. Channayya and get him removed from the job. Based upon the leakage of such information with regard to the price list of the AMX products to the competitor company, the 2nd respondent/complainant registers a complaint invoking Section 200 of the Cr.P.C. against the petitioners in Crime No.356 of 2011 alleging offences punishable under Section 408 of the IPC and Sections 72 and 72A of the Information Technology Act, 2000 ('IT Act' for short).
5. On registration of the complaint, the learned Magistrate directed the Police to conduct investigation into the matter and submit a report under Section 156(3) of the Cr.P.C. The result of such investigation was Police filing a 'B' report. On the 'B' report the complainant files a protest petition, pursuant to which, the learned Magistrate took up the issue of 'B' report and passed an order rejecting the 'B' report and directing the case to be registered against accused 1 to 3 for offences punishable under the aforesaid provisions of law, pursuant to which, a charge 7 sheet is also filed by the Police. It is at that juncture the petitioners have knocked the doors of this Court.
6. The learned counsel appearing for the petitioners would vehemently argue and contend that the very allegation levelled against the petitioners is unfounded as the petitioners have neither contacted Mr. Channayya nor have asked for divulging the price list. AMX is an American company whose price list is always available on the web. She would further contend that the laptop which was seized by the Police was sent to investigation by the Forensic Science Laboratory which clearly opined that there was no e-mail communication between the petitioners and Mr. Channayya which showed divulging of opinion by Mr. Channayya with regard to the price list.
7. On the other hand, the learned counsel representing the respondents would refute such submission and contend that the Forensic Science Laboratory has not examined the laptop in its proper perspective as the laptop would communicate that no e- mail communication is sent to anyone during the period which 8 is highly improper and has also filed a memo of one such communication though the said communication does not indicate the alleged offence and would submit that it is a matter of trial that the petitioners have to come out clean, as the petitioners without doubt indulged in divulging of information.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
9. Since the entire issue sprang from the complaint, the complaint is extracted herein for the purpose of ready reference:
"To Date: 29-09-2011 The Jurisdictional Police Inspector.
Sir, Sub: Complaint of theft against
1) Mr. Chander Rajagopal, S/o Rajagopalan L
2) Mr. Gautam.
--
I, Sri Vijay Kumar S/o K.C.Kaveriappa aged about 55 years, currently working as Manager in Fire Pro Systems Pvt.Ltd., bearing Employee Code No.987 9 BLR being its authorized representative residing at Koramangala do hereby file the following complaint:
1) I am the authorized representative of Fire Pro Systems Pvt.Ltd., a company incorporated under the Companies Act, 1956 engaged in the business of providing, installing and servicing fire safety products to various buildings commercial establishments, complexes, malls, residential apartments, public and private buildings etc. The authorized letter of the complainant to file this complaint is herewith produced as Annexure-I.
2) Boltz - Home Intelligence is a division business of Fire Pro Systems Pvt.Ltd., which is engaged in performing the work execution of its parent organization Fire Pro Systems Pvt.Ltd.
3) It is submitted that Mr. Chander Rajagopal is an employee of Fire Pro Systems Pvt.Ltd., vide Employee Code bearing No.BLR 497 discharging his duties as a General Manager in Boltz-Home Intelligence being divisions business of Fire Pro Systems Pvt.Ltd.
4) Mr. Chander Rajagopal has been in service in the company for the last 47 years and has been instrumental in receiving various confidential information pertaining to the pricelist commercials, client details, work orders of Fire Pro Systems Pvt.Ltd.
5) Mr. Cjhannayya is an employee of Fire Pro Systems Pvt.Ltd., bearing Employee Code No.BLR 601 and is presently discharging his duties as senior Executive Finance in Boltz -10
Home Intelligence being the division business of Fire Pro Systems Pvt.Ltd.
6) Sri Gautam is working in a company called Jenesys which is competitor of the complainant company in the said business.
7) It is respectfully submitted that the complainant Fire Pro Systems Pvt.Ltd., in the course of its business has diverted confidential information pertaining to its client AMX to Mr. Channayya pertaining to the statement of prices of the complainant. The confidential information held by Mr. Channayya was given to him in strict confidence being the contractual obligations delivered in the course of employment towards which was to be kept in strict confidence.
8) It is submitted that on 27-09-2011 informed the company vide a letter of intimation dated 27.09.2011 about certain irregularities committed by Mr. Chander Rajagopal who is the General Manager of Boltz - Home Intelligence, the division business of Fire Pro Systems Pvt.Ltd., in the said letter of intimation dated 27-09-2011 the company has been informed that on 13-09-2011 at about 3 p.m. Mr. Chander Rajagopal, the General Manager of Boltz -Home Intelligence, the division business of the company called Mr. Channayya to his office and told him that he required the price list of AMX urgently and asked him to forward the price list to his official e-mail ID and 11 mark a BCC copy to Mr. Gautam of Jenesys who is the competitor of the company. Mr. Channayya told Mr. Chander Rajagopal that he could not disclose the price list of AMX to Mr. Gautham of Jenesys without written authorization, after about 45 minutes Mr. Chander Rajagopal again called Mr. Channayya to his office and asked him to forward the price list of AMX to his official e-mail ID and BCC the price list to Mr. Gautam of Jenesys failing which he will report disobedience of conduct of Mr. Channayya and get him dismissed from the job.
10) Though Mr. Channayya tried his level best to convince Mr. Chander Rajagopal that he could not send out the price list of AMX to his official e-mail ID and copy to Mr. Gautam of Jenesys since this was the confidential information of the company Mr. Chander Rajagopal abused the position as a General Manager and ordered Mr. Channayya to mark a reply to AMX and in the said reply mail mark a copy (cc) of the price list of AMX to Mr. Chander Rajagopal e-mail ID and BCC the price list of AMX to Mr. Gautlam of Jenesys being the competitor which is against the legal protocol of the company.
11) It is submitted that the knowledge of the said theft of the confidential information came to the notice of the complainant vide a letter of intimation dated 27.09.2011 issued by Mr. Channayya to the complainant the letter of intimation dated 29.09.2011 is attached as Annexure-II 12
12) Mr. Chander Rajagopal abusing his position of being a General Manager of the company has committed theft of confidential information of the company with an intention to cheat the company and all the accused above named have abetted and conspired together and have collectively committed the theft of the confidential information belonging to the complainant being the price list of AMX.
13) Mr. Chander Rajagopal has further committed acts of criminal breach of trust against the complainant since he has assisted Mr. Gautam of Jenesys who has conspired with him and abetted Mr. Chander Rajagopal to commit the said illegal act has further received the stolen property of the complainant from Mr. Chander Rajagopal.
14) It is respectfully submitted that the acts committed are highly illegal and hence the Police Inspector may be pleased to take immediately action against the accused jointly and severally and prevent the misuse of the confidential information stolen by the accused for their wrongful gain and on seizing the said confidential information be pleased to return the same to the complainant, in the interest of justice and equity.
Thanking you, Yours sincerely, Sd/- Vijay Kumar Manager Admn. 9741054131 For Fire Pro Systems Pvt.Ltd."
(Emphasis added) 13 The complaint resulted in the Police filing a 'B' report. The filing of 'B' report resulted in an order being passed by the learned Magistrate rejecting 'B' report and directing registration of case under Section 408 of the IPC and Sections 72 and 72A of the IT Act. It is, therefore, germane to notice Section 408 of the IPC and the provisions of the IT Act. Section 408 of the IPC deals with criminal breach of trust by a clerk or servant and reads as follows:
"408. Criminal breach of trust by clerk or servant.--Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
In terms of the afore-quoted provision of IPC whoever, a clerk or a servant or employee being entrusted with such property or with any dominion over such property commits criminal breach of trust would become liable for punishment. Criminal breach of trust is defined in Section 405 of the IPC. 14
10. Criminal breach of trust in terms of Section 405 of IPC mandates that whoever is entrusted with the property, dishonestly converts to his own use the said property or uses it for other purposes, become vulnerable for punishment under Section 405 of IPC. Therefore, the entrustment of property is imperative to even consider the allegation in the case at hand. If the complaint is taken note of, there is no entrustment of property to the hands of the petitioners. The 1st petitioner was an employee of the complainant company and the allegation is that he has divulged or sought information about AMX price list and had handed over to the company owned by the 2nd petitioner through an employee of the company. The entrustment of property is not even alleged against the 1st petitioner. The allegation of divulging of information is also so weak that Section 408 of IPC cannot be linked to the offences alleged in the complaint.
11. What remains are Sections 72 and 72A of the IT Act. They read as follows:
15
"72. Penalty for breach of confidentiality and privacy. Save as otherwise provided in this Act or any other law for the time being in force, any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book. register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both."
72A. Punishment for disclosure of information in breach of lawful contract.- Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees, or with both."
Section 72 deals with penalty for breach of confidentiality and privacy. If any person who in pursuance of any powers conferred has secured access to electronic record, uses the said 16 material without the consent of the person concerned, would become liable for punishment. Section 72A deals with punishment for disclosure of information in breach of lawful contract and mandates that whoever discloses any information which is in furtherance of a contract due to which the person or information is divulged results in wrongful loss, without the consent of the person concerned, would be guilty of offences punishable under the aforesaid enactments.
12. To consider the offences under Sections 72 and 72A of the IT Act, it is germane to notice the examination report of the Central Forensic Science Laboratory which is the wing of the Directorate of Forensic Science Services, Ministry of Home Affairs, Government of India and the information rendered is thus a public document. The object of examination was examination of digital media. The items that were examined were the phones of the petitioners, the sim card, memory card and hard disc of both the laptops that the petitioners were holding. 17 The digital evidence storage media was forensically imaged by the laboratory and the information given is as follows:
"CENTRAL FORENSIC SCIENCE LABORATORY, HYDERABAD Directorate of Forensic Science Services Ministry of Home Affairs, Government of India HYDERABAD, INDIA - 500 013 Phone:91- 40- 2703 8741/2703 8902 27038985 *27038429 (Director) Fax:91- 40- 2703 9281/2703 7855 EXAMINATION REPORT
1. Report No. CFSL(H)/214/DOC/136- CAH- 27/2012 Dated:15/05/2013
2. No. of Pages of Report: 03 Annexure A:51 Pages & 1CD
3. Ref No.77/CRM/E/12 Dated 16/02/2012
4. From:
THE DEPUTY COMMISSIONER OF POLICE EAST DIVISION, BANGALORE CITY.
Cr. No.356/2011 of P.S.Indiranagar U/S : 408 IPC & 66 (A) of IT Act
5. Mode of Receipt: Through SPL Messenger Mr.Shankar, PC
6. Date of Receipt: 23/02/2012
7. No. of sealed Parcel / exhibit (s) received: Three
8. Details of the exhibits received are below S.No. DESCRIPTION HARD DISK/STORAGE MEDIA MARKED OF THE ITEM NO., CAPACITY AND MAKE AS
1. ME MAKE:BLACK BETTY A1 - MOB MODEL:9800 IMEI:355465047801424 SIM SERVICE PROVIDE: AIRTEL A1 - SIM ICCID:
89914500040186180219 MSD MAKE: SANDISK A1 - MSD NO:1029608033DN8 CAPACITY 18
2. HARD DISK MAKE : TOSHIBA A2 - HD MODEL: MK6034GSX S/N:Z6GUF2CZS CAPACITY: 60 GB
3. HARD DISK MAKE: HITACHI A3- HD MODEL:HTS542525K9SA00 S/N:080410BB3F00WDDB92HG CAPACITY:250GB
9. Condition of the seal: Intact
10. Purpose of reference: Examination of Digital Media
11. Dates of examination: 07/05/2013 to 15/05/2013
12. RESULTS OF EXAMINATION:
The digital evidence storage media submitted was forensically imaged by using Forensic Dossier/Encase Forensic Software and analysed by using Encase Forensic Software.
• The digital evidence storage media was forensically analyzed using the authorized software & hardware tools. • The cardinal rules of Computer Forensics have been followed during the entire process of analysis. • The Suspected Digital Evidence Storage Media marked "A2-HD"
contains Two partitions and the details are given below:
S.No. PARTITION DETAILS OF THE IMAGED AS
/CAPACITY PARTITION ARE
AT
1. 49.3 GB Annexure - A CAH_27_2012_A2_
2. 6.6 GB (Page Nos.1- 3) HD
• The Suspected Digital Evidence Storage Media marked "A3- HD"
contains Three partitions and the details are given below:
S.No. PARTITION DETAILS OF IMAGED AS
/CAPACITY THE
PARTITION ARE
AT
19
1. 48.8 GB Annexure - A
CAH_27_2012_A3_
2. 97.7 GB (Page Nos.43-
HD
3. 86.4 GB 46)
• The suspected digital evidence storage media marked A1- MSD
has been imaged as 'CAH- 27- 2012- A1- MSD' by using Encase Forensic Softward. The details of the media are given at Annexure- A (Page No.8).
• The integrity of the digital evidence storage media is authenticated by the MD5 hash vale. The MD5 hash value i.e. the digital finger print of the suspected digital evidence storage media marked A2- HD, A3- HD and A1- MSD is given at Annexure- A (Page Nos.1, 43 and 48 respectively).
12.1 a. The e-mail communications between '[email protected]' and others have been extracted from the backup file 'chander_outlook.nsf, available in the suspected digital evidence storage media marked A2- HD. The hardcopy of the mails is given at Annexure- A(Page Nos.4- 42).
The softcopy of the mails for which the hard copy is not provided is given in CD marked CAH- 27- 2012- CD.
The softcopy of the e- mail communications extracted from the .dbx files available in the suspected digital evidence storage media marked A2- HD is also given in CD marked CAH- 27- 2012- CD.
b. No mail communications pertaining to the year 2011 could be found in the backup file 'gk_outlook.nsf' available in the suspected digital evidence storage media marked A3- HD. The hard copy of the file attributes of the backup file 'gk_outlook.nsf' is given at Annexure- A(Page No.47).
c. The SIM card marked A1- SIM (removed from the Mobile Phone marked A1- MOB) was analysed by using Universal Forensic Extraction Device (UFED) of M/s CelleBrite Ltd. The hard copy of the UFED report containing contacts, etc., is given at ANNEXURE- A (Page Nos.49- 51).
20d. No data relevant to the case could be found in the suspected digital evidence storage media marked A1- MSD. e. The mobile phone marked A1- MOB could not be analysed as the software/hardware tools available in the laboratory do not support the medi."
(Emphasis added) The final examination report is that no e-mail communication pertaining to the year 2011 could be found in the back-up file. The sim card was analyzed and the report was also enclosed and it was further found that no data relevant to the case could be found in the suspected digital evidence storage media and the mobile phone could not be analyzed as the tools in the laboratory did not support such media.
13. All the documents unmistakably prove that there was no communication through e-mail between Channayya and the petitioners for seeking or divulging of any information of the price list. It is in those circumstances the opinion of the FSL is that there were no e-mail communications pertaining to the year 2011 that were relevant for the purpose for which it was handed over. The report of the FSL - a wing of the Government of India cannot be brushed aside to contend that it is of no value and 21 would not support the case of the petitioners. It is of value and it does support the case of the petitioners as it is on this unimpeachable evidence the offence alleged gets completely diluted.
14. If there are no e-mail communications as found in both the laptops that were seized, the very substratum of allegation that Channayya was asked to communicate the price list by way of e-mail loses water and permitting the trial to continue against the petitioners notwithstanding the aforesaid circumstance would degenerate into a weapon of harassment against the petitioners. What is alleged is breach of contract. Therefore, it is always open to invoke such provisions which would touch upon civil law for recovery of damages for the acts of the petitioners, if any or if available in law. Giving a colour of crime, invoking the provisions of the IT Act, and on that score trial to be continued that too in the teeth of the evidence of no e-mail being found would be an abuse of the process of law and result in miscarriage of justice.
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15. For the aforesaid reasons, I pass the following:
ORDER
(i) The criminal petition is allowed.
(ii) The proceedings in C.C.No.21975 of 2018 pending on the file of I Additional Chief Metropolitan Magistrate, Bengaluru stands obliterated qua the petitioners.
(iii) It is made clear that the observations made in the course of this order would not bind any proceedings against any other accused pending adjudication before any competent Court of law.
(iv) It is also made clear that the observations made in the course of the order will not come in the way of the complainant seeking redressal of its grievance for breach of contract, if any, before any competent civil fora, if available in law.
Sd/-
JUDGE bkp CT:MJ