Allahabad High Court
Sanjay Sharma And 2 Ors. vs State Of U.P. And Another on 25 February, 2016
HIGH COURT OF JUDICATURE AT ALLAHABAD ?RESERVED Case :- APPLICATION U/S 482 No. - 3900 of 2014 Applicant :- Sanjay Sharma And 2 Ors. Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Anoop Trivedi Counsel for Opposite Party :- Govt. Advocate,Manish Tiwari,Namit Srivastava,Prateek Tyagi,Raghuvansh Chandra,Ritesh Upadhyay Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicants, Sri Manish Tiwari, learned counsel for the opposite party no.2 and learned A.G.A. for the State respondent.
The present 482, Cr.P.C. Application has been filed for quashing the charge sheet submitted in case no. 12648 of 2012, under Sections 379, 406, 420, 120 I.P.C. and 66-C, 66-D of Information Technology Act and Section 85 of Information Technology Act 2008 relating to Police Station Civil Lines District Allahabad bearing Case Crime No.385 of 2011.
Learned counsel for the private opposite party has raised preliminary objection that since the same prayer of the applicants, on earlier occasion, has been declined by this Court in its decision rendered in criminal 482 Cr.P.C. application no. 15135 of 2013 decided on 13.05.2013, the present 482, Cr.P.C. application is not maintainable.
The aforesaid preliminary objection was heard and decided by another Bench of this Court vide order dated 7.2.2014 holding that in the changed circumstances, as the Investigating Officer has reported that entire occurrence had taken place at Pune (Maharastra), therefore, the Courts at Allahabad (Uttar Pradesh) do not have jurisdiction to proceed with the present case. As the said question needs consideration, counter and rejoinder affidavit were called and interim order was passed.
It is contended by the learned counsel for the applicants that the applicants no.1 and 2 are partner of M/s i-Valuebridge Software & Solutions LLP (a limited liability partnership firm) duly registered under the Limited Liability Partnership Act having its registered office at 408 to 413, Signer Corner, Balewadiphata, Baner Road, Pune and is engaged in business of software development and manufacture; that between son of complainant, opposite party no. 2, namely, Aditya Watal and applicants no.1 and 2, with an understanding, entered into an agreement, whereby both the parties agreed to develop together a software by the name of Guzool Product, in which the applicants were to invest money amounting Rs. Two Crors for development of the software by engaging Programmers, System Analyst and Consultants and was to provide infrastructure for development of software; that the son of opposite party no.2 agreed that the applicants will make the product robust and commercially viable; that the software, after being completed, was ready for uploading on the server and both, the applicants and son of complainant had assisted for uploading the software on the server named as Codero; that thereafter son of complainant started taking steps for forming separate legal entity in the name of style of Atomic Labs Private Limited with an ulterior motive to launch the Guzool product commercially without the applicants' permission or without compensating the applicants for the service rendered for the development of the said product; that the image on record would go to show that the son of opposite party no.2 never had any intention to enter into an agreement with the applicants; that on 4th June, 2011 it came to the knowledge of the applicants that access to the Codero survey of the applicants was removed and the password of the project including data on future product released in favour of one of the employee of the applicants, was also changed giving ownership to the son of complainant, without permission of the applicants; that with a view to restore access and to reset the password, same was reset/restored on 10thJune, 2011 by the applicants and backup of all its data on the server including the Guzool Software, Projects, Customer Data and applicants' own data was taken; that the applicants also sent legal notice to the son of complainant on 20th June, 2011 and when said notice was unresponded, the applicants filed suit being R.C.S. No. 1321 of 2011, which is stated to be pending at Pune; that during the pendency of the said suit, the complainant and his son, as a counter blast, filed suit no. 43 of 2011 at civil court, Allahabad, in which ex-parte injunction was granted in favour of son of complainant ; that thereafter the opposite party no.2 lodged first information report on 7.9.2011 in case crime no. 385 of 2011 under Section 379, 406, 420, 120-B I.P.C. and Section 65/66 of I.T. Act, 2000, in which charge-sheet has been filed, which is impugned in the present application; that the applicants had filed criminal misc. writ petition no. 19923 of 2011, in which arrest of the applicants was stayed till submission of charge-sheet , copy of which has been filed as annexure-8 to the affidavit.
It is argued by the learned counsel for the applicants that bare reading of the first information report would go to show that the allegations made are contractual in nature with regard to non-generation of money within the stipulated time, thus, no offence under the charged sections is made out against the applicants; that the Investigating Officer had himself written to Additional Director of Police (Law and Order) for transferring the investigation to Cyber Unit, Lucknow as I.O. was not competent for investigating cyber offences but inspite of the same, same I.O. has submitted charge-sheet, which was submitted through the concerned Circle Officer; that the witnesses were not examined by the I.O. and in the statement of witnesses, questions were framed by the witnesses and were answered by themselves, which cannot be treated as statement recorded under Section 161, Cr.P.C., thus, criminal prosecution of the applicants is totally mala fide and has been initiated with sole intention to harass them.
It is contended by the learned counsel for the applicants that the applicants had moved an application for further investigation in the matter as earlier Investigating Officer had filed charge-sheet in per-see manner and the court (Chief Judicial Magistrate, Allahabad) had granted permission for further investigation vide order dated 11.06.2013. It is further contended that the further investigation commenced, therefore, the applicants moved an application under Section 205 read with Section 317, Cr.P.C. for personal exemption, copy of which has been filed as annexure-12 to the affidavit, in which it was averred that the applicants are permanently residing at Puna (Maharashtra) and had business and personal commitments including health issues that require regular check-ups. The main accused has chronic cardiac problems and has prosthetic mistral value, which restrains free travel and further it was averred that the litigation between the parties in civil and criminal cases are pending in Pune District Court where personal presence of the applicants is regularly required and thus it was averred that the Courts in U.P. do not have jurisdiction to try the case.
Learned counsel for the applicants has contended that the aforesaid application of the applicants for withdrawal of non-bailable warrant and personal exemption has been dismissed and even the application with the prayer that this Court has no territorial jurisdiction, has been dismissed on frivolous ground, therefore, said order is liable to be quashed. Thus, the prayer has been made in the present 482, Cr.P.C. for quashing the charge sheet and for setting aside the order dated 16.1.2014 passed by the Chief Judicial Magistrate, Allahabad, whereby application of the applicants moved on the ground that the matter cannot be proceeded in State of U.P. having no jurisdiction, has already been dismissed.
Learned counsel for the opposite party no.2 has drawn attention of this Court the order passed in the matter of co-accused Arania Jain in criminal 482, Cr.P.C. application no. 7221 of 2013, whereby this Court, vide order dated 5.3.2013 had disposed of the said 482, Cr.P.C. application with the liberty to Arania Jain to move discharge application at appropriate stage and also to appear before the court below and apply for bail within 30 days, the record of said 482, Cr.P.C. application no. 7221 of 2013 has also been sent to this Court, which is before this Court. It is also contended that Arania Jain was only employee of the Company and the applicants are the owner of the Company, who had hacked the information from website of the son of complainant without any authorization, therefore, offence under the charged sections is made out against the applicants. It is also contended that the Additional Director of Police (Law and Order), after getting information from the concerned Investigating Officer that the matter relates to cyber crime, appointed none else than one Mr. Rohan P. Kanay, IPS Officer, as Investigating Officer, who was B.E. (Computer Science). It is next contended that in the present case only charge sheet and cognizance taking order is under challenge and at this stage the Magistrate has only to satisfy himself regarding whether prima facie case is made out or not, therefore, no interference is warranted by this Court in exercise of power under Section 482, Cr.P.C.
It is argued on behalf of the opposite party no.2 that the charge-sheet was challenged by way of filing criminal 482, Cr.P.C. application no. 15135 of 2013, which was finally disposed of vide judgment and order dated 13.05.2013 granting liberty to the applicants to prefer application for discharge at the appropriate stage and further to appear and surrender before the court below within 30 days and to apply for bail, copy of which order has been filed as annexure-7 to the affidavit accompanying the present application.
It is contended that opposite party filed objection to the aforesaid application, copy of which has been filed as annexure-14 to the affidavit, stating therein that the applicants, in collusion with the Investigating Officer, filed an application for further investigation and the second investigation has been made without taking into consideration the documents of the private opposite party and without recording the statement of opposite party and without looking into the relevant issues provided by the private opposite party whether the entire occurrence took place at Pune (Maharashtra). It was further averred that the court as well as second Investigating Officer failed to take note of the fact that original charge-sheet was filed against the applicants by the then Investigating Officer Mr. Rohan Kanay, IPS, which charge-sheet was supported by the report submitted by Prof. K.K. Bhutani, Professor of Computer Science and Director UPTEC, therefore, it was stated in the said objection that as per the provision of Section 179, Cr.P.C., the Court at Allahabad has jurisdiction.
Learned counsel for the private opposite party has argued that initially charge sheet was filed after due investigation by the competent officer, who was well acquainted in cyber law and crime and was also B.E. in Computer Science, who after due investigation, came to the conclusion that the offence under the charged sections, has been committed by the applicants, thus, charge sheet was filed against them. It is further argued that the application for getting further investigation was made at the behest of the applicants in collusion with the subsequent Investigating Officer, who without considering the various documents of the private opposite party and even without recording his statement submitted report that entire cause of action had taken place at Puna (Maharashtra).
Learned counsel for the private opposite party has drawn attention of this Court to annexure-14 to the affidavit , which is copy of objection filed by the private opposite party and has referred to internal page 150 of the present 482, Cr.P.C. application, which is the interim working agreement dated 14.5.2011 between I-Value Bridge and Atomic Labs, which shows complicity of the applicants in commission of alleged offence.
Learned counsel for the opposite party no.2 has further argued that the second Investigating Officer in his second Investigation has failed to consider the order of the District Judge, Allahabad dated 2.4.2012 in case no. 43 of 2011 wherein it is contended that the said Court held that the copyright belongs to Atomic Labs Private Limited and M/s i-Valuebridge Software & Solutions LLP has no right to use the same, which order of the learned District Judge was also upheld by a Division Bench of this Court in its judgement and order dated 9.7.2012 and which has attained finality.
It is again contended on behalf of the opposite party no.2 that civil misc. writ petition no. 19923 of 2011 filed by Sanjay Sharma, wherein a Division Bench of this Court granted relief to Sri Sharma till filing of the charge sheet, vide order dated 21.10.2001. Still again, it is argued that another Division Bench of this Court vide order dated 21.8.2012 rejected the matter of Sri Sanjay Sharma partner of M/s i-Valuebridge Software & Solutions LLP for quashing of the FIR. Thereafter, 482, Cr.P.C. Application no. 15135 of 2013 filed by Sri Sanjay Sharma, partner of M/s i-Valuebridge Software & Solutions LLP was disposed of whereby quashing of charge sheet was refused. It is contended that in all the aforesaid matters the courts at Allahabad were fully aware about pendency of civil as well as criminal cases between the parties at Pune also and thus stand taken by second IO that new facts have emerged regarding pendecny of civil and criminal cases pending at Pune is a wrong averment.
After hearing the learned counsel for the parties, this Court is of the opinion that as the interim agreement dated 14.5.2011 between M/s i-Valuebridge Software & Solutions LLP and Atomic Labs Private Limited is on record along with other documents and there are allegations for the offence being committed under Section 66-C, 66-D of Information Technology Act and Section 85 of Information Technology Act 2008 regarding hacking of website concerned, which are questions of fact and can be well considered by the Trial Judge after appreciation of such facts. It cannot be said at this stage that courts at Allahabad do not have jurisdiction as has been observed by the court in its order impugned that it is a continuing offence and there is no denial of interim agreement, referred to above. Further more, the submissions as referred to above also indicate that the applicants are filing repeated petitions/applications before this Court as well as before the court below with the intention to defer the matter even without complying with the orders passed by the Court.
In view of the submissions made by the rival parties, this Court is of the opinion that no good ground has been made out for any interference by this Court for quashing the charge sheet submitted in case no. 12648 of 2012, under Sections 379, 406, 420, 120 I.P.C. and 66-C, 66-D of Information Technology Act and Section 85 of Information Technology Act 2008 relating to Police Station Civil Lines District Allahabad bearing Case Crime No.385 of 2011.
The present application lacks merit and is, accordingly, dismissed. No order as to costs.
Order Date :- 25.2.2016 Ashish