Delhi District Court
M/S Pricewaterhousecoopers Private ... vs Sarvesh Mathur on 7 October, 2020
IN THE COURT OF MS. CHARU AGGARWAL: ASJ-02: CENTRAL: TIS
HAZARI COURTS: DELHI
Criminal Revision No. 630/2019
M/S PRICEWATERHOUSECOOPERS PRIVATE LIMITED
Through its Authorised representative,
Having its registered office at
Y-14, Block EP, Sector V, Salt Lake,
Kolkata 700091, West Bengal.
Also at :
11A, Sucheta Bhawan,
Vishnu Digamber Marg,
New Delhi-110002. ..... Petitioner
Versus
1.Sarvesh Mathur
S/o H.B. Mathur
R/o A-702, Park View City-1,
Sohna Road, Sector-48,
Gurugram (Haryana) ..... Respondent No. 1
2. State of NCT Delhi
Through its standing counsel. ..... Respondent No. 2
ORDER
1. This criminal revision petition under section 397/399 of Criminal Procedure Code, 1973 filed by the petitioner company is directed against the impugned summoning order dated 30.08.2019 passed by Ld. MM 02 Central District, Delhi in complaint case No. 18737/18, where petitioner alongwith two other co-accused persons have been summoned on the complaint of respondent No. 1 for offence of Criminal defamation punishable u/s 500 IPC.
M/s Pricewaterhousecoopers Private Limited Vs. Sarvesh Mathur & Anr. Page No. 12. Briefly stated the facts of the case giving rise to the present revision petition are that the petitioner is a company of Global Repute providing advisory, consultancy and tax related services to Multinational Corporations in India and abroad. Respondent No. 1 was employed by the petitioner as its Chief Finance Officer vide letter dated 12.02.2008.
3. With effect from 21.09.2011 the respondent No. 1 was directed by the petitioner not to attend the office and was put on 3 months severance notice from the employment of petitioner company ending on 31.12.2011. During the period the respondent No. 1 was under severance notice, specific media quarries started coming to the petitioner regarding the information that was strictly confidential and had not even been finalized by the petitioner which arouse suspicion in the mind of the Management of the petitioner company regarding the mischief being played by an insider as the media queries were relating to sensitive and strictly confidential matters. Taking a stern view of the pilferage, the petitioner initiated an internal investigation using forensic procedure wherein the electronic data base consisting of E-mail were meticulously scrutinized and through such investigation it was found that respondent No. 1 was illegally and clandestinely taking away, transferring, pilferaging and dishonestly misappropriating large volume information data and documents pertaining to the petitioner on several occasions within a period of 18 months between February 2010 and September, 2011 from his official electronic mail accounts to his three different personal mail accounts without any knowledge, approval or authorization from his seniors and in express violation of the established policies and procedures. Respondent No. 1 was confronted with these facts and was requested to return/destroy all such information, data and documents in his possession but when he refused to return/destroy the same, the petitioner being left with no other option, vide its letter dated 27.02.2012 formally terminated the services of respondent No. 1 w.e.f. 31.12.2011 without prejudice to its legal rights and remedies for recovery of his stolen data.
4. On 02.03.2012, being aggrieved by the act of theft committed by respondent No. 1, the petitioner had filed a complaint against him with the commissioner of Police, Gurgaon, Haryana for commission of offence punishable u/s 408/379/410/411/413 of IPC and for breach of confidentiality and privacy M/s Pricewaterhousecoopers Private Limited Vs. Sarvesh Mathur & Anr. Page No. 2 punishable u/s 72 A of Information and Technology Act, 2000 and other related offences. On 19.03.2012, the respondent No. 1 had also filed a complaint before the Commissioner of Police, Gurgaon (Haryana) and in that complaint, he alleged financial irregularities, willful falsification of accounts, evasion of taxes etc. against the petitioner.
5. While the police investigation pertaining to the above complaint filed by the petitioner against the respondent No. 1 was in progress in 2012, the respondent No. 1 is stated to have approached the petitioner for amicable resolution of the dispute. After some discussion, respondent No. 1 requested the petitioner to withdraw its complaint dated 02.03.2012 filed against him and voluntarily executed an affidavit cum undertaking dated 03.04.2012 wherein it was admitted by respondent No. 1 that he had transferred the petitioners property to his personal electronic mail accounts and he agreed to hand over the data in his physical possession and to delete/destroy all the information/ data and documents which were in electronic form retained by him. The petitioner is further stated to have trusted the respondent of. 1 and accepted his apology and consequent thereupon a technical team of the petitioner, in the presence of officers of Cyber Cell, Gurgaon police, deleted the confidential information, data and documents found on the personal laptop and e-mail IDs of respondent No. 1. The petitioner would state that it did not pursue its complaint dated 02.03.2012 filed against respondent No. 1 in good faith acting upon the apology given by the respondent No. 1 in his affidavit cum undertaking dated 03.04.2012 executed by him. The petitioner accordingly informed his decision not to pursue its complaint dated 02.03.2012 to the commissioner of police, Gurgaon. On 09.04.2012 the respondent No. 1 furnished a supplementary note to the affidavit cum undertaking dated 03.4.2012 wherein he had confirmed that he had deleted the remaining data.
6. The respondent No. 1, however, after about 4 months, of his executing the affidavit cum undertaking/supplementary notes, sent a representation dated 13.08.2012 to the commissioner of police, Gurgaon seeking registration of FIR against the petitioner on the basis of written complaint made by him earlier on 19.03.2012. The Cyber crime cell of Gurgaon police gave diary No.134-C to the complaint filed by the respondent No. 1 however, no FIR has been registered till M/s Pricewaterhousecoopers Private Limited Vs. Sarvesh Mathur & Anr. Page No. 3 date. The petitioner company was informed that a closure report has been in the above said complaint dated 19.03.2012 filed by the respondent No. 1 against the petitioner.
7. On 25.09.12, the Respondent No. 1, sent a legal notice to the petitioner for recovery of Rs.3,90,000 alongwith interest @ 24% per annum. The petitioner company sent its reply to the said legal notice of the respondent No. 1 vide reply dated 12.10.2012 and without prejudice to its legal rights and contentions issued a cheque in favour of respondent No. 1 for an amount of Rs.4,49,366/-.
8. After a lapse of 5 years, on 30.05.2017, the Respondent No. 1 filed a complaint u/s 200 CrPC before the Court of Judicial Magistrate 1st class, Gurgaon u/s 477/468/469/471/420/406/204/182/499/500/506/120 B IPC which is stated to be at the stage of pre-summoning evidence.
9. After about a year and a half of filing the complaint by respondent No. 1 against the petitioner at Gurgaon Court, he filed a complaint in question on 02.11.2018 before the Court of concerned MM THC Delhi (CC No. 18737/18) titled as Sarvesh Mathur Vs. M/s Pricewaterhouse Coopers alleging defamatory imputation alleged to have been made by the petitioner and its two other employees at the top of the management against Respondent No.1 and sought their summoning u/s 499/500 IPC. It is on the basis of this complaint filed by the respondent No. 1 against the petitioner before the Court below at Delhi, the petitioner and his two other accused persons were ordered to be summoned by the Ld. MM for the offence u/s 500 IPC, which is subject matter of challenge in the present revision petition.
10. The respondent No. 1, is the complainant on whose complaint dated 02.11.2018, the impugned summoning order has been passed by the Court below. The respondent No.2, is State (NCT of Delhi.)
11. The respondents were duly served with the notice of the present petition. The Trial Court record has been summoned and the same has been perused by me.
M/s Pricewaterhousecoopers Private Limited Vs. Sarvesh Mathur & Anr. Page No. 412. The first and foremost question that requires consideration by this Court is the question of maintainability of present revision petition, kept open by Ld. Predecessor.
This revision is against the order of summoning the petitioner and other two accused persons. As per section 397(2) CrPC, no revision lies against the interlocutory order. Therefore, the question arises whether the impugned order is interlocutory against which the revision does not lie. In Urmila Devi Vs. Yuduvir Singh (2013)15 SCC 624 the Hon'ble Supreme Court has held that summoning order is intermediatory or quasi final order against which revisional jurisdiction can be invoked. Hence, the present revision petition filed against the impugned summoning order is held to be maintainable. This Court will now proceed to examine the impugned summoning order on merit.
13. This court has heard the arguments advanced by the Ld. Counsel for the petitioner and arguments of respondent No. 1, who himself presented his case and have given thoughtful consideration to the respective rival arguments in the light of oral and documentary evidence available on record of the Court below.
14. The Ld. Counsel appearing on behalf of the petitioner company has argued that the impugned summoning order by the Ld. Trial Court completely lacks application of judicial mind and according to him the said order has been passed without going into the article published in daily newspaper - "Economic Times" of dated 25.07.2017 and the article published by the "Outlook Magazine" on 03.08.2017. The contention of the Ld. Counsel was that none of these two published articles contains any defamatory material against the respondent No. 1/ complainant and according to him, they do not meet any requirement of essential ingredient of actionable defamation u/s 499/500 IPC. It was submitted that even if the entire complaint and the articles published in the "Economics Times" and "Outlook Magazine" annexed with the complaint are taken on their face value and believed to be correct, still the petitioner could not have been summoned by the Trial Court for the offence punishable u/s 500 IPC and therefore, a prayer is made by the Ld. Counsel for setting aside the impugned order.
M/s Pricewaterhousecoopers Private Limited Vs. Sarvesh Mathur & Anr. Page No. 515. On the other hand, the respondent No. 1 who argued his case himself supported the impugned order, it was contended by him that there is absolutely no affirmity in the impugned summoning order that may require any correction by this Court in exercise of its revisional jurisdiction and, therefore, he has prayed for dismissal of the present revision petition.
16. Ld. APP for the State (respondent No. 2) has supported the arguments addressed by respondent No. 1 and he has also prayed for dismissal of the present revision petition.
17. This Court upon bestowing its thoughtful consideration to the above rival arguments advanced by the Ld. Counsel for the parties could not persuade itself to go by the arguments advanced by respondents or the reason for summoning the petitioner and other two accused persons given in the impugned summoning order for the reasons to follow hereinafter.
18. The Hon'ble Apex Court in S. Khusboo Vs. Kanniamal(2010) 5SCC 600 has held as follows:-
"The definition of defamation makes it amply clear that the accused must either intend to harm the reputation of the particular person or reasonably know that his/her conduct could cause such harm. Explanation 2 two section 49 further states that it may amount to defamation to make an imputation concerning a company or an association or collections of persons as such."
19. Needless to say that the aroma of reputation of any person is virtue which by no means can be allowed to be sullied under the garb of freedom of speech of another individual. A conscious person would never barter his reputation. When his reputation is hurt, a man is half dead and the honour to protect reputation of citizen is the bounded duty of all law enforcing agency. The present case needs to be tested on the touch stone of the above cordial principal to protect reputation of all individuals.
20. It may be seen from the record of trial Court that respondent No. 1 in his complaint u/s 200 CrPC dated 02.11.2018 made before the Trial Court has M/s Pricewaterhousecoopers Private Limited Vs. Sarvesh Mathur & Anr. Page No. 6 imputed defamation against him by the petitioner company and two of his associate employees at the top of management only on the basis of two articles, one published in the "Economic Times" dt. 25.07.2017 and the other in the "Outlook Magazine" dated 03.082017. A careful perusal and scrutiny of both these articles would clearly shows that its content by no means falls within the definition of offence u/s 499 IPC. A reading of the article published in the "Economic Times"
dated 25.07.2017 under the caption "PWC cooked books, evaded tax and broke laws" would reveal that the specific ingredients of defamation are completely missing in the same article and same is the position even with regard to the article published in the outlook magazine on 03.08.2017. This Court wonders when essential ingredients of offence of defamation are missing in the complaint of Respondent No. 1 filed u/s 200 CrPC then how the petitioner and even the other two accused persons could have been summoned by the Ld. Trial Court for the offence u/s 500 IPC. Furthermore, it may be seen from the article Ex. PW5/A published in the Economic Times dated 25.07.2017 that the response of the spokeperson of the petitioner was "A PWC official speaking on the condition of anonymity because the matter is in Court, said Mathur was the disgruntled employee who has been repeating these baseless and splendors allegations for several years. Responding to its query a PWC spokeperson spoke "this is in long series of defamatory attempts made against PWC by persons who seems to be active in consort with each other with the sole purpose to harass and bring the name of CWC under disrepute. The case filed by Ex-employee Sarvesh Mathur is also an attempt in that direction to mire PWC and its official on tenuous ground in litigations. We plan to apprise the Hon'ble Court of Judicial Magistrate of the facts''.
21. In the considered opinion of this Court, the above statement /reply given by the spokeperson of the company in response to the query of ET by no means can be said to be defamatory in nature even if definition of defamation is construed liberally.
22. In the present case there is no denial of the fact that the respondent No.1 was terminated from service by the petitioner company vide letter of termination dated 27.02.2012 w.e.f. 31.12.2011. The complaint u/s 200 CrPC pursuant whereof impugned order has been passed by Ld. Trial Court was made by M/s Pricewaterhousecoopers Private Limited Vs. Sarvesh Mathur & Anr. Page No. 7 respondent No. 1 against petitioner company on 02.11.2018 that is more than after six years of his termination. It is also a matter of record that respondent No. 1 had made serious accusations against the petitioner company with regard to various financial irregularities and fudging of its books of accounts for which separate proceedings are going on against the petitioner company. It is further matter of record that the petitioner company has also accused respondent No. 1 of transferring confidential and privilege data from the electronic mail account of the company to his personal mail account and thereby he appears to have committed a breach of fiduciary relationship between an employee and employer and in this regard separate proceedings were lodged by the petitioner company against respondent No. 1 in the Court at Gurgaon.
23. In the opinion of this Court the allegations of financial irregularities, evasion of tax etc. against the petitioner company and the allegations of breach of trust and relationship between employer and employee committed by the respondent No. 1 are independent and distinct matters and shall be dealt with appropriately in independent appropriate proceedings as per law.
24. Under the above stated circumstances if the spokeperson of PWC has called the respondent No. 1 in its reply to the queries of ET, "A disgruntled employee", this Court fails to understand how the term "disgruntled" used in the above article can be stretched to an extent of making it an offence of criminal defamation punishable u/s 500 IPC. The dictionary meaning of the term "disgruntled" is "unsatisfied". In the set of facts of the present case, if respondent No. 1 who was terminated from the services of the petitioner company has been called as "disgruntled person" by the spokeperson of PWC how could it lower his reputation in the eyes of near and dear ones in case his termination effected more than six years back, did not tarnish his image. Hence, the impugned summoning order suffers from material irregularities and if not set aside would cause grave injustice to the petitioner company as they may have to appear and face trial in a case which on the face of it is not made out against it.
25. A further question that would require consideration by this Court is whether impugned summoning order is to be set aside as a whole or only against petitioner M/s Pricewaterhousecoopers Private Limited Vs. Sarvesh Mathur & Anr. Page No. 8 company who has approached and invoked the revisional jurisdiction of this Court as other two accused persons summoned by the same impugned order had not filed any revision either in this Court or in the Hon'ble High Court. The impugned summoning order has come for consideration before this Court in exercise of its revisional jurisdiction u/s 397/399 CrPC which confirms wide powers on the revisional Court to set aside an order even sue moto. As this Court does not find any material even against the other two co-accused persons to proceed against them for offence punishable u/s 500 IPC, moreso, when their name do not appear in any of the articles published either in Economic Times or Outlook Magazines.
26. In view of the foregoing reason this revision petition is allowed, impugned summoning order is set aside in its entirety. A copy of this order alongwith TCR be sent back to Ld. Trial Court.
27. In view of the above order, the application filed by respondent No. 1 for sending back the Trial Court record rendered infructuous.
Revision file be consigned to record room.
(Announced through V/C(Cisco webex) Digitally signed
by CHARU
on 07.10.2020) CHARU AGGARWAL
AGGARWAL Date:
2020.10.07
13:35:44 +0530
(CHARU AGGARWAL)
ASJ-02: CENTRAL: THC : DELHI
M/s Pricewaterhousecoopers Private Limited Vs. Sarvesh Mathur & Anr. Page No. 9