Bangalore District Court
Company Has Not Produced Any Document vs Persons. For The Reasons Stated Above on 8 January, 2016
IN THE COURT OF THE I ADDL.CMM: BANGALORE
Dated this the 8th day of January 2016.
Present: Sri Krishna Prasad Rao Kalmady,
B.A.,LL.B.,
I Addl.C.M.M.,Bangalore.
JUDGMENT U/s.355 OF Cr.P.C.
Case No. : C.C.No.5810/2007
Date of Offence : During the year 2007
Name of complainant : State by Cyber Crime
Police, C.O.D.
Bengaluru.
Name of Accused : 1.Ebrahim Badruddin
Matheranwala,
S/o. Badruddin,
No.1/1, Laxmi Road,
Flat No.1/A,
H.V.S.Corner,
Shantinagar,
Bengaluru 560 027
2.Solomon Francis Xavier,
S/o Solomon,
No.185/F, 1st Additional,
3rd Cross, Girinagar,
Bengaluru 560 085
Offence complained : U/s.66 of I.T.Act, 2000 &
Sec.381 r/w 34 of IPC.
Plea of Accused : Pleaded not guilty
Final Order : As per final Order
Date of Order : 8-1-2016.
2 C.C.No.5810/2007
JUDGMENT
The Deputy Superintendent of Police, Cyber Crime Police Station, C.O.D. Head Quarters, Bengaluru has filed the charge sheet against the accused Nos.1 and 2 alleging that, they had committed the offences punishable under Sections 66 of I.T.Act and 381 r/w 34 of IPC.
2. The case of the prosecution in brief is that, the accused were working as graphic designers since 23-10-2000 and trainee software engineers since 1-12-1997 respectively in M/s IT Must Consultancy Pvt. Ltd., at No.5, Silver Glade, Wellington Street, Richmond Town, Bengaluru. That on 28-3-2000, Megabet Ltd., Republic of Cyprus entered into an agreement for software development services with Sansui Software Ltd., Pune for the development of sports betting internet site. The Sansui Software Ltd., had entrusted to develop the above software to the complainant's Company. The I.T. Must Consultancy Pvt. Ltd., 3 C.C.No.5810/2007 Company developed the said software with the help of a team of engineers including accused persons for Megabet Ltd., as per its requirement. They had also developed application software for other sports like basket ball etc., for the same company.
The accused persons while working with the I.T. Must Consultancy Pvt. Ltd., hacked the Source Code, with the common intention committed the theft of Source Code and manipulated the same and sold the manipulated software and thereby caused wrongful loss to the complainant and made wrongful gain to themselves by floating a company called "ENLINGHTEN SOFTWARE SERVICES (P) LTD.," at No.11/1, Shop No.7, 1st Main, 1st Cross, Gavipuram Extension, Hanumanthanagar, Bengaluru and sold the software developed by the complainant Company and thereby committed the offences punishable under Section 66 of I.T. Act, 2000 and Section 381 r/w 34 of IPC. 4 C.C.No.5810/2007
3. Cognizance of the offences was taken and the presence of the accused Nos.1 and 2 were secured and subsequently they were released on bail.
4. Copies of the prosecution papers were furnished to the accused Nos.1 and 2 as contemplated under Section 207 of Cr.P.C. Charge was framed for the said offences, which was read over and explained to accused Nos.1 and 2. Accused Nos.1 and 2 had denied the charge levelled against them and claimed to be tried.
5. To bring home the guilt of the accused Nos.1 and 2, the prosecution had examined six witnesses as P.Ws.1 to 6 and got marked Exs.P1 to P17 and M.Os.1 to 14 and closed its side. Thereafter, the statement of the accused under Section 313 of Cr.P.C. was recorded. On behalf of the accused Nos.1 and 2, no witnesses were examined and no documents were marked.
6. I have heard the arguments of both sides and perused the records.
5 C.C.No.5810/2007
7. The following points arise for my consideration are:-
1. Whether the prosecution proves beyond all reasonable doubt that, the accused Nos.1 and 2 have committed the offences punishable under Sections 66 of I.T. Act, 2000 and 381 r/w 34 of IPC ?
2. What Order ?
8. My findings to the above Points are as follows:-
Point No.1:- In the Negative.
Point No.2:- As per the final order:
for the following:-
REASONS
9.Point No.1:-
In order to establish its case the prosecution had examined 6 witnesses as P.Ws.1 to 6 and got marked 17 documents as per Exs.P1 to P17 and M.Os.1 to 14 during the trial.
a. P.W.1 who was the Director of IT Must Consultancy Pvt. Ltd., was the first informant whose complaint as per Ex.P1 was registered in Cr.No.11/2002 under Sections 65, 66 of Information 6 C.C.No.5810/2007 Technology Act, 2000 and 381 of IPC., against the accused persons by Deputy Superintendent of Police, Cyber Crime Police Station, C.O.D. Head Quarters, Bengaluru. P.W.1 had deposed that the Cyprus Nation Company has entrusted the project to their Company for making comprehensive software for their business. Accused No.2 was the Project Manager for this particular project on behalf of their Company and he had access to the complete software source code. Accused Nos.1 and 2 started new Company Enlighten Software Company by adopting their software engineering mechanics by making some changes and started selling their software to the competitors of their client at Cyprus and due to this there was diminishing value of the software of their clients at Cyprus for which they had invested one million U.S.Dollors.
It is elicited in the cross-examination of P.W.1 that "It is true to suggest that I have not 7 C.C.No.5810/2007 produced any documents to show that the aforesaid Company is registered under the necessary law".
"In relation to this case, we had entered into agreement with Megabyte Company to develop the software. Sansui Software Pvt. Ltd., Pune approached us to create a software for Megabyte. Later on Megabyte approached us and we continued directly. It is true to suggest that document at Ex.P4 is the agreement entered into the Sansui Pvt. Ltd., Pune and the Megabyte. It is true to suggest that as per Ex.P4 document, the software were developed by Sansui Software Pvt. ltd., Pune for Megabyte".
"It is true to suggest that in the present case we have not produced the service agreement entered into between our firm and Megabyte".
"Since we were not suppose to give name to software development by us hence we have not given any specific name to the sports software developed by us. I do not know that name was what was given 8 C.C.No.5810/2007 by Megabyte Company to the sport software developed by us. It is true to suggest that previous to us the Megabyte had given contract of developing the sport software to Sansui Company at Puna".
"I have not produced any documents to show that our Company has developed software for Megabyte Company. We were not asked by Megabyte Company to give a code to avoid the misuse of the software developed by us".
"I have not produced the contract agreement entered between our Company and Megabyte Company. The Megabyte Company came to know that their software was hacked by 3rd person in late 2001. I do not remember the exact date".
"The Megabyte Company has informed the hacking software through e-mails. But I have not produced those e-mails. Any of the directors of Megabyte Company did not come to India to file the complaint in this matter. After verifying the file the witness deposes that there is no document showing 9 C.C.No.5810/2007 that the megabyte company has named the present accused responsible for hacking the software".
"The Technical Director and the Project Manager will be the person who are in possession of source code. One Mustan Zirowala was the Technical Director of IT MUST company. Depending upon the size of the project we constitute the themes. It is true to suggest that we will not inform the source code to all the five teams. We split the work among five team. The project manager will assign the particular work to team. It is true to suggest that every employee of the company will not be knowing the source code of particular software".
"I cannot give the specific date as to when the Megabyte Company has come to know about hacking of the data. Now I cannot remember the exact date when the said Megabyte Company made the complaint to me about the hacking of the data. Probably it may be in the month of September 2002".10 C.C.No.5810/2007
"I have produced the copy of the said fax in this case. After going through the case papers witness deposed that the copy of the said fax is not available. I cannot say after hacking the data to whom the accused have sold the information".
"I have not produced any resolution passed by the board of directors to initiate the criminal action against the accused, as it was not asked by the I.O. I have not produced any documents to show that both the accused persons were working on Technical side of our company. The Megabyte Company made correspondence that they have sustained heavy loss because of the incident but I have not produced those correspondences before the I.O".
"I had instructions from the Board of Directors of IT Must company to file complaint against the accused but I have not produced the copy of the complaint as nobody asked me to produce it".
b. P.W.2 is the panch witness to the Seizure Mahazar Ex.P8 under which compact disc and hard 11 C.C.No.5810/2007 disc of the data structure used for developing Megabet Software and the source code listing hard copies of data structure were seized by the police.
It is elicited in the cross-examination of P.W.2 that:
"Now I do not remember the contents of Ex.P8. It is true that it is the complainant who has produced Ex.P2 and 9 documents before the Cyber Police. It is true that the CDs like M.O.No.4 is available in the open market".
"It is true that as one of the Directors of IT Must company I have not given any complaint against the accused or at least my statement before the I.O".
c. P.W.3 is the Group Co-ordinator C-DAC Bengaluru had deposed that he had analysed hard discs and the compact discs seized in this case and furnished his opinion.
P.W.3 had deposed in the examination in chief that:
12 C.C.No.5810/2007
"After examining the CDs and hard discs we came to know that the source code and the data structure are similar, but due to non-availability of executable files of application software we were not able to conclude whether the application is similar".
It is elicited in the cross-examination of P.W.3 that:
"Personally I do not know whether the very articles placed before the court were received by Gangaprasad. Physically I am not able to identify whether I received the articles placed before the court from Gangaprasad".
"I do not remember the exact date when Gangaprasad sent the articles to me seeking my opinion. I do not remember whether when I received
the articles they were intact and sealed. It is true that I don't have sufficient details to show that I received the very articles before the court for examination. It is true that as per the 13 C.C.No.5810/2007 procedure the IO has to record the HASH code of the hard disc before sending it to CDAC. I do not have any materials to say that the said procedure was followed by the IO in this case".
"Witness volunteers that without HASH code the data can be tampered. It is true that without HASH code the data can be manipulated. In this case no HASH code of the hard disc was mentioned".
"I do not know whether EBET source code was in Dot.net. It is true that in my report at Ex.P.12 I have mentioned the SQL statements in the above stored procedures were found to be different. I am not able to say which are the 3 CDs I have examined out of the 4 CDs produced before the court. It is true that in one of the hard discs the physical number is different from the one mentioned in the mahazar and the other documents. I cannot say whether we have not received the hard discs and CDs placed before the court for examination. It is true 14 C.C.No.5810/2007 that the data structure of EBET and Megabyte are different".
"I do not remember as to how many files were available in the hard disc and CDs. I cannot say as to how many files of EBET and Megabyte matched with each other. At the time of examination of the hard disc I have not down loaded the contents of the same to other source. It is true that WINHEX 10.45 is one of the software through which the hidden and deleted files can be retrieved. I did not request the IO to provide executables for examination of the materials".
"Now I do not remember the size of each files which were examined. It is true that size of the files can be measured in bites. In my report I have not mentioned size of the files are having similar bites. We have not taken the prints of contents of hard discs and CDs in this case. I cannot say whether the size of contents of EBET and Megabyte were different".15 C.C.No.5810/2007
"I have not prepared any notes while examining materials and answering the questionnaire. I have not consulted any of my seniors while preparing the answers to questionnaire. I did not furnish the answer to my higher officials".
d. P.W.4 had deposed that on 28-9-2002 when he was Station House Officer he received a written complaint from P.W.1 and on the basis of said written complaint he registered the case in Cr.No.11/2002 and sent FIR to the Court. P.W.4 had deposed about the role played by him during the investigation.
It is elicited in the cross-examination of P.W.4 that:
"Before the complainant filed the complaint, I had no any information about hacking of his account. I had not received any message either from Indian Embassy or from the office of the Police Commissioner regarding hacking of the Source code". 16 C.C.No.5810/2007
"During my investigation I have not collected said agreement from the complainant. Except the copy of the source code, the complainant has not produced any other documents to show that the company has developed the said source code".
"During my investigation I found that the accused have not sold source code to anybody. None of the Directors of Megabyte have given statement before me that their source code has been hacked. I did not record the statements of any other directors of the IT MUST company as I did not find it necessary. I do not know the name of the official of CDAC who has received the CDs and hard discs. It is true to suggest that before sending the CDs and hard discs to CDAC, the IO has to mention the hash code. Witness volunteers that since at that time the software facilities were not provided to CCPS, hence in this case the Hash code is not mentioned".17 C.C.No.5810/2007
"I do not know whether the language of source code of the Complainant Company and the accused are quite different. I do not know whether the DATA structures of Complainant Company and also accused are quiet different. I have not noted the number of files found in hard discs seized from the accused. It is true to suggest that I had to take the mirror image of the hard discs contents. It is true to suggest that in order to retrieve the deleted and hidden information usually winhex 10.45 software will be used. I do not know anything about the executables. It is true to suggest that in Ex.P.15 it is mentioned that in none of the computer systems of the accused company, the relevant informant was found".
"It is true to suggest that I have drawn Ex.P.8 mahazar in the CCPS. Complainant has not furnished the details of the files in the hard disc produced by him. During the mahazar conducted at accused firm I have examined the contents of hard disc with 18 C.C.No.5810/2007 the help of technical assistant. The technical assistant did not furnish the language of source code of accused and the complainant".
"It is true to suggest that in Ex.P17 I have not mentioned the number of the hard disc seized. It is true to suggest that the number of the hard disc mentioned in Ex.P10 is not tallying with the hard disc produced before the court. It is true to suggest that I have not mentioned the hash code of M.O.No.10".
e. P.W.5 is the Technical Expert in Cyber Crime Police Station had deposed that he had assisted the Investigating officer during the course of investigation and seizure proceedings.
It is elicited in the cross-examination of P.W.5 that:
"£Á£ÀÄ EzÉà jÃw C£ÉÃPÀ ¥ÀæPÀgÀtUÀ¼À°è mÉQßPÀ¯ï C¹¸ÉÖAmï DVgÀÄvÀÉÛãÉ. £ÁªÀÅ ¸ÀzÀj ¸ÀܼÀPÉÌ ºÉÆÃzÁUÀ C°è K£ÀÄ PÀAqÀÄ §A¢vÀÄ CzÀ£ÀÄß «rAiÉÆà ªÀÄvÀÄÛ ¥sÉÆÃmÉÆÃUÁæ¥sï ªÀiÁrgÀÄvÉÛêÉÉ".19 C.C.No.5810/2007
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"AiÀiÁªÀÅzÁzÀgÀÆ MAzÀÄ PÀA¥ÀÇålgïUÉ ºÉÆÃV CzÀgÀ°è «£ÉPïì
10.45 (winhex 10.45) JQìPÀÆåmï ªÀiÁrzÀgÉ AiÀiÁªÀÅzÉà »qÀ£ï ¥sÉÊ¯ï ªÀÄvÀÄÛ r°Ãmï DVgÀĪÀ ¥sÉÊ®ÄUÀ¼ÀÄ rÀ¸ï¥Éèà DUÀÄvÀÛªÉ C£ÀÄߪÀÅzÀÄ ¤d. F jÃw F ¥ÀæPÀgÀtzÀ°è ªÀiÁqÀ¯ÁVzÉ CAvÀ ¤¦-15 ªÀĺÀdgï£À°è §gÉAiÀįÁVzÉ C£ÀÄߪÀÅzÀÄ ¤d. F jÃw JQìPÀÆåmï ªÀiÁrzÀÝgÀÆ PÀÆqÀ ¦üAiÀiÁðzÀÄzÁgÀgÀ PÀA¥À¤UÉ ¸ÀA§AzÀs¥ÀlÖ AiÀiÁªÀÅzÉà ¸Á¥ÀsÖªÉÃgï ¥sÀÉÈ®ÄUÀ¼ÀÄ DgÉÆævÀgÀ PÀA¥ÀÇålgïUÀ¼À°è ¹UÀ°®è C£ÀÄߪÀÅzÀÄ ¤d. DgÉÆævÀgÀ PÀA¥ÀÇålgïUÀ¼À°èzÀÝ ¥sÉÊ®ÄUÀ¼ÀÄ PÁ¦ ªÀiÁrPÉÆAqÀÄ CzÀ£ÀÄß vÀ¤SÁ¢üPÁjUÉ PÉÆlÖ §UÉÎ £À£ÀUÉ £É£À¥ÀÅ EgÀĪÀÅ¢®è".
"AiÀiÁªÀÅzÁzÀgÀÆ MAzÀÄ ¸ÉÆÖgÉÃeï «ÄÃrAiÀiÁ ¹Ãeï ªÀiÁrzÀgÉ CzÀPÉÌ ºÁå¸ï PÉÆÃqï PÉÆqÀ¨ÉÃPÁUÀÄvÀÛzÉ C£ÀÄߪÀÅzÀÄ ¤d. F ¥ÀæPÀgÀtzÀ°è ºÁqïð r¸ïÌUÉ ªÀiÁvÀæ ºÁå¸ï PÉÆÃqï ºÁQzÀÄÞ G½zÀ d¥ÁÛzÀ ¹rUÀ½UÉ CzÀ£ÀÄß ºÁQ®è. ¤¦-15 ¥ÀAZÀ£ÁªÉÄAiÀÄ ªÀÄÆ®PÀ MAzÀÄ ºÁqïð r¸ïÌ C£ÀÄß ªÀiÁvÀæ d¦Û ªÀiÁqÀ¯ÁVzÉ. d¥ÁÛzÀ ¸ÉÆÖgÉÃeï «ÄÃrAiÀiÁPÉÌ ºÁå¸ï PÉÆÃqï ºÁPÀ¢zÀÝgÉ £ÀAvÀgÀ CzÀgÀ°èAiÀÄ ¸Á¥sïÖªÉÃgï C£ÀÄß mÁåA¥Àgï ªÀiÁqÀ§ºÀÄzÀÄ, ªÀiÁå£ÀÄ¥ÀůÉÃmï ªÀiÁqÀ§ºÀÄzÀÄ C£ÀÄߪÀÅzÀÄ ¤d".
"AiÀiÁªÀ ªÀåQÛUÉ ¸ÀA§AzÀs¥ÀlÖ PÀA¥ÀÇålgï£À°èzÀÝ ºÁqïð r¸ïÌ C£ÀÄß ¤¦-15 gÀ ¥ÀAZÀ£ÁªÉÄ ªÀÄÄÁ®PÀ d¦Û ªÀiÁqÀ¯Á¬ÄvÀÄ £À£ÀUÉ ºÉüÀ®Ä §gÀĪÀÅ¢®è". 21 C.C.No.5810/2007
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"¢£ÁAPÀ 14-11-2002gÀAzÀÄ ¥ÀÅ£ÀB E£ÉÆßAzÀÄ ¸À® ¥ÀAZÀ£ÁªÉÄUÉ §gÀ¨ÉÃPÉAzÀÄ vÀ¤SÁ¢üPÁj £ÀªÀÄUÉ °TvÀ £ÉÆÃnøÀÄ PÉÆnÖ®è. JgÀqÀ£Éà ¸À® ºÉÆÃzÀÁUÀ®Æ PÀÆqÀ £ÁªÀÅ «rAiÉÆà ªÀÄvÀÄÛ ¥sÉÇÃmÉÆà vÉUÉzÀÄPÉÆArgÀÄvÉÛêÉ. JgÀqÀ£Éà ¸À® ºÉÆÃzÁUÀ C°è JµÀÄÖ PÀA¥ÀÇålgïUÀ¼ÀÄ EzÀݪÀÅ £À£ÀUÉ £É£À¥ÀÅ EgÀĪÀÅ¢®è. JgÀqÀ£Éà ¸À® C°èUÉ ºÉÆÃzÁUÀ £ÁªÀÅ MAzÉà PÀA¥ÀÇålgï ¥ÀjÃPÀëÉ ªÀiÁrzɪÀÅ. ¤¦-15 ªÀÄvÀÄ 16 gÀ°è EgÀĪÀ ¥sÉÇÃmÉÆÃUÀ¼ÀÄ MAzÉà EgÀÄvÀÛªÉ C£ÀÄߪÀÅzÀÄ ¤d. JgÀqÀ£Éà ¨ÁjUÉ ªÀiÁrgÀĪÀ ªÀĺÀdgï JµÀÄÖ UÀAmɬÄAzÀ JµÀÄÖ UÀAmÉAiÀÄ £ÀqÀÄªÉ ªÀiÁqÀ¯Á¬ÄvÀÄ £À£ÀUÉ ºÉüÀ®Ä §gÀĪÀÅ¢®è. JgÀqÀ£Éà ¨ÁjUÉ ºÉÆÃzÁUÀ £ÁªÀÅ J¯Áè PÀA¥ÀÇålgïUÀ¼À£ÀÄß ¸ÀZïð ªÀiÁrgÀĪÀÅ¢®è. JgÀqÀ£Éà ¨ÁjUÀÆ ºÉÆÃzÁUÀ®Æ ¸À»vÀ DgÉÆævÀgÀ PÀA¥ÀÇålgïUÀ¼À°è ¦AiÀiÁðzÀÄzÁgÀjUÉ ¸ÀA§AzÀs¥ÀlÖ ¸Á¥sïÖªÉÃgï £ÀªÀÄUÉ ¹UÀ°®è C£ÀÄߪÀÅzÀÄ ¤d".
"¤¦-16 ªÀĺÀdgï ¥ÀæPÁgÀ AiÀiÁªÀ ºÁqïð r¸ïÌ ¹Ãeï ªÀiÁqÀ¯ÁVzÉ C£ÀÄߪÀÅzÀÄ ºÉüÀ®Ä §gÀÄvÀÛzÉ. ¤¦-16 ªÀĺÀdgï ¥ÀæPÁgÀ d¦Û ªÀiÁrgÀĪÀ ºÁqïð r¸ïÌ £ÀAB57©74JA«qÀ§Äèå EgÀÄvÀÛzÉ. £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ F ºÁqïð r¸ïÌ ºÁdgÀÄ ªÀiÁrgÀĪÀÅ¢®è".22 C.C.No.5810/2007
"JgÀqÀ£Éà ¨ÁjUÉ £ÁªÀÅ DgÉÆævÀgÀ PÀqÉUÉ ºÀÉÆÃzÁUÀ £ÁªÀÅUÀ¼ÀÄ AiÀiÁªÀÅzÉà PÀA¥ÀÇålgï, ¦æAlgï CxÀªÁ ¯Áå¥ïmÁ¥ï vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃV®è C£ÀÄߪÀÅzÀÄ ¤d. JgÀqÀ£Éà ¨ÁjUÉ £ÁªÀÅ C°èUÉ ºÉÆÃzÁUÀ ¦AiÀiÁðzÀÄzÁgÀgÀ PÀA¥À¤AiÀĪÀgÀ ¸Á¥sïÖªÉÃgï £ÁªÀÅ vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃVgÀĪÀÅ¢®è. ¦AiÀiÁðzÀÄzÀzÁgÀgÀ ¸Á¥sïÖªÉÃgï E®èzÉà EzÀÝgÉ CzÀ£ÀÄß DgÉÆævÀgÀ ¸Á¥sïÖªÉÃgï£ÉÆA¢UÀÉ PÀA¥ÉÃgï ªÀiÁqÀ®Ä DUÀĪÀÅ¢®è C£ÀÄߪÀÅzÀÄ ¤d. ¦AiÀiÁðzÀÄzÀzÁgÀgÀ ¸Á¥sïÖªÉÃgï PÀ¢AiÀĨÁgÀzÀÄ C£ÀÄߪÀ §UÉÎ AiÀiÁªÀÅzÉà ¯ÁQAUï PÉÆÃqï EgÀ°®è. JgÀqÀÆ ¨ÁjUÀÆ £ÁªÀÅ C°èUÉ ºÉÆÃzÁUÀ ¦AiÀiÁðzÀÄzÀzÁgÀgÀ ¸Á¥sïÖªÉÃgï C£ÀÄß DgÉÆævÀgÀÄ PÀ¢ÝgÀÄvÁÛgÉ C£ÀÄߪÀ §UÉÎ £À£ÀUÉ ªÉÊAiÀÄQÛPÀªÁV ªÀiÁ»w EgÀ°®è C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. F jÃw £À£ÀUÉ ªÉÊAiÀÄQÛPÀ ªÀiÁ»w EgÀĪÀ §UÉÎ F JgÀqÀÆ ¸Á¥sïÖªÉÃgïUÀ¼À£ÀÄß £Á£ÀÄ ¥ÀjÃPÀëÉ ªÀiÁr £ÉÆÃr®è. FUÀ £ÁåAiÀiÁ®AiÀÄzÀ ªÀiÄAzÉ ºÁdgÀÄ ¥Àr¹gÀĪÀ JgÀqÀÄ ºÁqïð r¸ïÌUÀ¼ÀÄ DgÉÆævÀgÀ PÀA¥ÀÇålgï¤AzÀ vÉUÉzÀÄPÉÆArzÀÄÝ EgÀÄvÀÛªÉ CAvÀ ºÉüÀĪÀ §UÉÎ £À£ÀUÉ AiÀiÁªÀÅzÉà ªÀiÁ»w EgÀĪÀÅ¢®è".
"¦AiÀiÁðzÀÄzÁgÀgÀ PÀA¥À¤AiÀÄ ¸Á¥sïÖªÉÃgï qÉÃmÁ ¸ÀÖPç ÀÑgï ¨ÉÃgÉ EzÀÄÝ, DgÉÆævÀgÀ ¸Á¥sïÖªÉÃgï qÉÃmÁ ¸ÀÖPç ÀÑgï ¨ÉÃgÉ EgÀÄvÀÛzÉ C£ÀÄߪÀÅzÀÄ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è. DgÉÆævÀgÀÄ vÀªÀÄä PÀA¥ÀÇålgï£À°è §¼À¸ÀÄwÛzÀÝ ¸Á¥sïÖªÉÃgï ¨ÉÃgÉ EzÀÄÝ, ¦AiÀiÁðzÀÄzÁgÀgÀ ¸Á¥sïÖªÉÃgï ¨ÉÃgÉ EgÀÄvÀÛzÉ C£ÀÄߪÀÅzÀÄ ¤d. F JgÀqÀ£ÀÆß £Á£ÀÄ PÀA¥ÉÃgï ªÀiÁr AiÀiÁªÀÅzÉà ªÀgÀ¢ PÉÆnÖ®è. »ÃUÁV ¦AiÀiÁðzÀÄzÁgÀgÀ ¸Á¥sïÖªÉÃgï C£ÀÄß DgÉÆævÀgÀÄ ºÁåPï ªÀiÁrgÀÄvÁÛgÉ 23 C.C.No.5810/2007 CAvÀ £À£ÀUÉ ºÉüÀ®Ä §gÀĪÀÅ¢®è C£ÀÄߪÀÅzÀÄ ¤d. F ¥ÀæPÀgÀtzÀ°è d¦Û ªÀiÁrzÀAvÀºÀ ¹.r.UÀ¼ÀÄ ¨ÉÃgÉ PÀqÉ ªÀiÁgÀÄPÀmÉÖAiÀÄ°è ¹UÀÄvÀÛªÉ C£ÀÄߪÀÅzÀÄ ¤d".
f. P.W.6 had deposed that he had conducted the further investigation of the case and arrested the accused persons and after completion of the investigation had submitted the charge sheet against the accused persons.
It is elicited in the cross-examination of P.W.6 that:
"DgÉÆævÀgÀÄ ¦gÁå¢AiÀÄ ¸ÉÆøïðPÉÆÃqï C£ÀÄß ºÁåPï ªÀiÁrgÀÄvÁÛgÉ. AiÀiÁªÀ ¸ÉÆøïð PÉÆÃqï DgÉÆævÀgÀÄ ºÁåPï ªÀiÁrgÀÄvÁÛgÉ JAzÀÄ zÉÆõÀÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ°è ºÉýgÀĪÀÅ¢®è JAzÀgÉ ¸ÉÆøïð PÉÆÃqÀ£ÀÄßß DgÉÆævÀgÀÄ ºÁåPï ªÀiÁrgÀÄvÁÛgÉ JAzÀÄ ºÉýgÀÄvÉÛÃ£É AiÀiÁªÀ ¸ÉÆøïð PÉÆÃqÀ£ÀÄß DgÉÆævÀgÀÄ ºÁåPï ªÀiÁrgÀÄvÁÛgÉ. JAzÀÄ ºÉýgÀĪÀÅ¢®è".
10. The question that arises for consideration is, whether the evidence on record is sufficient to bring home the guilt of the accused persons. The case of the prosecution suffers from fundamental infirmities which cannot be cured.
24 C.C.No.5810/2007
11. The prosecution has cited as many as 21 witnesses in the charge sheet but only examined 6 witnesses as P.Ws.1 to 6. No independent witness had been examined by the prosecution. C.Ws.2 and 3 who are the panch witnesses to the Seizure Mahazar dated 30-9-2002 were not examined. C.W.5 who is the panch witness to Spot Mahazar Ex.P8 dated 2-10-2002 was not examined. Similarly C.Ws.6 and 7 who are the panch witnesses to the Seizure Mahazar dated 14-11-2002 were not examined. C.Ws.9 and 11 Programmers, C.W.10 Software Engineer, C.Ws.12 and 13 Developers at complainant's Company were not examined. C.Ws.14 and 15 Programmers and C.W.16 Senior Software Engineer at complainant's Company were not examined. C.W.20 who had conducted the further investigation of the case has not been examined by the prosecution. No explanation is coming forth why material witnesses were not examined by the prosecution.
25 C.C.No.5810/2007
12. The prosecution has filed the charge sheet against the accused persons after the lapse of five years. Not a scrap of paper is produced by the prosecution to show that there is agreement between Megabyte and complainant Company to develop software. P.W.1 who claims to be Director of the complainant Company has not produced any document authorizing him to file this complaint. No resolution passed by the Directors to initiate action against the accused persons is produced by P.W.1. In the absence of production of resolution passed by complainant Company and email authorising the complainant to initiate action against accused persons, it cannot be said that P.W.1 has locus standi to file this complaint. It is pertinent to note that the aggrieved Megabyte has not filed complaint before police. None of the officials of the Sansui Software Ltd., Pune is not made as a party in this case. 26 C.C.No.5810/2007
13. There is no legal evidence that accused had stolen software and sold them to some other person. Ex.P4 is the agreement dated 28-3-2000 entered into between Sansui Software Ltd., Pune and Megabyte. No document is produced by the prosecution to show that there was agreement between Megabyte Ltd., and complainant Company to develop software. There is no document to show that who has hacked the software, when it was hacked, what was hacked and how it was hacked. There is absolutely no evidence that the accused had hacked the software of complainant's Company.
14. P.W.3 Programme Co-ordinator C-DAC has not properly examined 3 CDs and 2 hard discs because P.W.3 in the examination in chief itself has stated that due to non-availability of executable files, we are not able to conclude the examination. P.W.5 the Technical Expert admits that Bitstream procedure has not been followed in this case for comparison of hard disc file with complainant's 27 C.C.No.5810/2007 Company software. It is further seen that the hard disc produced before the Court and the hard disc which was seized in the above case are entirely different. P.W.5 says that without hash code, hard disc can be tampered. P.W.5 says in the evidence that he cannot say which 3 CDs he had examined out of 4 CDs. He has not identified the CDs properly before the Court.
15. It is pertinent to note that the hard disc number mentioned in Ex.P16 i.e., S/N:57B74MVW is entirely different from the hard disc number M.O.5 produced before the Court. In M.O.5 the hard disc number is mentioned as SFB76H11. There is no material before the Court that the accused had hacked the software. The Investigating Officer has not produced the executable files. It appears that the norms of Information Technology Act has not been followed in the above case. It is pertinent to note that Megabyte had not filed any complaint and not intimated the Indian Embassy 28 C.C.No.5810/2007 and Indian Embassy in turn has not intimated the Police Commissioner, Bengaluru to initiate action against the accused persons. The prosecution has not produced the original source code. Only xerox copy is produced.
16. The prosecution has failed to place before the Court the cogent and reliable evidence to prove the guilt of the accused persons. The Investigating Officer did not depose as to on what basis he had found out that the accused persons were the culprits. The link connecting the crime with the accused persons is missing in the investigation. Therefore, the benefit of doubt should tilt in favour of the accused persons. The story of the prosecution is full of suspicion and cannot be believed. There is no iota of evidence to prove the ingredients of the alleged offences. In view of the inherent weakness, not much discussion is necessary to dispose off this case. The evidence on record is 29 C.C.No.5810/2007 insufficient to bring home the guilt of the accused persons. For the reasons stated above, I hold that the prosecution has failed to establish that the accused persons had committed the alleged offences. Accordingly, point No.1 is answered in the Negative.
17. Point No.2:-
In the result, I proceed to pass the following:
O R D E R Acting under Section 248(1) Cr.P.C. I hold that, accused Nos.1 and 2 are not found guilty of having committed the offences punishable under Section 66 of I.T.Act, 2000 and Section 381 r/w 34 of IPC.
Accused Nos.1 and 2 are hereby acquitted of the offences alleged against them and they are set at liberty forthwith.
The bail bonds executed by the accused persons and their sureties stands cancelled. 30 C.C.No.5810/2007 M.Os. 2 to 14 are ordered to be returned to the accused after appeal period is over. (Dictated to the stenographer directly on computer, typed by her, revised and then corrected by me and then pronounced in open court on this the 8th day of January 2016).
(Krishna Prasad Rao Kalmady) I Addl.CMM, Bangalore.
ANNEXURE List of witnesses examined on behalf of prosecution:
P.W.1, Sadat Ali, P.W.2, Masthan Jirawala, P.W.3, Bindu Madhava, P.W.4, K.Shrikanta, P.W.5, K.Mallikarjuna, P.W.6, C.K.Harisingh;
List of documents on behalf of prosecution:
Ex.P1, Complaint,
Ex.P1(a) Signature of P.W.1,
Ex.P1(b) Signature of P.W.4,
Ex.P2, Source Code out put (8 pages),
Ex.P3, STD Nick by the Ministry of Technology
of India,
Ex.P4, Agreement for Services executed by
Megabyte Ltd. and Sansui Software Pvt. Ltd.
Ex.P5, Shareholders Agreement,
Ex.P6, Copy of appointment letter,
Ex.P7, Copy of appointment letter of accused,
Ex.P8, Seizure Mahazar,
31 C.C.No.5810/2007
Ex.P8(a) Signature of P.W.2,
Ex.P9, Source Code out put,
Ex.P10, Letter written by Programme
Co-ordinator, CDAC,
Ex.P10(a), Signature of P.W.4,
Ex.P11, Covering letter,
Ex.P11(a), Signature of P.W.3,
Ex.P12, Megabyte Source Code report,
Ex.P13, FIR,
Ex.P14, Form No.10,
Ex.P15, Seizure Mahazar,
Ex.P15(a), Signature of P.W.4,
Ex.P16, Mahazar,
Ex.P16(a), Signature of P.W.4,
Ex.P17, Letter;
Material Objects Produced:-
M.O.1, Source code,
M.O.2, Article No.2 C.D.,
M.O.3, Article No.3 another C.D.,
M.O.4, CD stitched with letter 'C'
M.O.5, Hard disc No.5FB76H11 Article No.4,
M.O.6, CPU,
M.O.7, Colour monitor,
M.O.8, Logistic Mouse,
M.O.9, Keyboard,
M.O.10, Another Hard disc,
M.O.11, CPU,
M.O.12, Monitor,
M.O.13, Keyboard,
M.O.14, Mouse;
List of witnesses examined and documents marked on behalf of the defence:-
NIL I Addl.CMM, Bangalore.32 C.C.No.5810/2007
(Judgment pronounced in the Open Court, vide separate order) ORDER Acting under Section 248(1) Cr.P.C. I hold that, accused Nos.1 and 2 are not found guilty of having committed the offences punishable under Section 66 of I.T.Act, 2000 and Section 381 r/w 34 of IPC.
Accused Nos.1 and 2 are hereby acquitted of the offences alleged against them and they are set at liberty forthwith.
The bail bonds executed by the accused persons and their sureties stands cancelled.
M.Os. 2 to 14 are ordered to be returned to the accused after appeal period is over.
I Addl.CMM, Bangalore.33 C.C.No.5810/2007