Delhi High Court - Orders
Pappu Kumar vs The State Nct Of Delhi on 31 August, 2022
Author: Asha Menon
Bench: Asha Menon
$~26 to 28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
26
+ BAIL APPLN. 1495/2022
PAPPU KUMAR ..... Petitioner
Through: Mr. Ajit Kumar, Mr. Om Prakash and
Mr. Vishal Singh, Advocates
versus
THE STATE NCT OF DELHI ..... Respondent
Through: Mr. Ritesh Kumar Bahri, APP for
State with SI Arun
Mr. Yudhishter Sharma, Ms. Neelam
Sharma, Mr. Vaibhav Sharma and
Mr. Sanjeev Vats, Advocates for R-2
27
+ BAIL APPLN. 1525/2022, CRL.M.A. 9657/2022
OMKAR NATH TRIPATHI ..... Petitioner
Through: Mr. Pramod Kumar Dubey, Senior
Advocate with Mr. Nipun Katyal, Mr.
Akshat Sharma and Mr. Deep,
Advocates
versus
STATE OF NCT OF DELHI AND ANR. ..... Respondents
Through: Mr. Ritesh Kumar Bahri, APP for
State with SI Arun
Mr. Yudhishter Sharma, Ms. Neelam
Sharma, Mr. Vaibhav Sharma and
Mr. Sanjeev Vats, Advocates for R-2
28
+ BAIL APPLN. 1574/2022
DEEPAK KUMAR ..... Petitioner
Through: Mr. Harish Nautiyal, Advocate
versus
THE STATE OF NCT OF DELHI ..... Respondent
Signature Not Verified
Digitally Signed BAIL APPLN. 1495/2022 and connected matters Page 1 of 11
By:MANJEET KAUR
Signing Date:31.08.2022
23:39:57
Through: Mr. Ritesh Kumar Bahri, APP for
State with SI Arun
Mr. Yudhishter Sharma, Ms. Neelam
Sharma, Mr. Vaibhav Sharma and
Mr. Sanjeev Vats, Advocates for R-2
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
% 31.08.2022
1. This common order will dispose of the three applications being Bail Appln. 1495/2022, Bail Appln. 1525/2022, Bail Appln. 1574/2022 filed under Section 438 Cr.P.C. seeking anticipatory bail. Since the applications have been filed by three of the accused persons in FIR No.351/2022 registered by the Model Town, Police Station under Section 409 read with Section 34 IPC, the three applications are being taken up together for disposal.
2. The complaint was filed on behalf of Cyber Root Risk Advisory Private Limited (complainant company) through its authorized representative, Mr. Chiranshu Ahuja regarding illegal disclosure and divulgence of their bank records and mishandling of their confidential and sensitive information by the bank which was the Kotak Mahindra Bank Limited, JMD Regent Square branch, (Kotak Bank) where the complainant company maintained a current account bearing No.2511468461 along with other accounts for the last six years prior to the registration of the FIR. In June, 2020, the complainant company lost some projects from their existing clients due to pricing and other such issues which could only be revealed from one's bank account statements and other confidential data. On 17th June, 2020, the complainant company expressed their concern of illegal Signature Not Verified Digitally Signed BAIL APPLN. 1495/2022 and connected matters Page 2 of 11 By:MANJEET KAUR Signing Date:31.08.2022 23:39:57 leakage, disclosure and divulgence to the bank employees being the accused No. 4 and 5. Reminders had to be issued to the Kotak Bank, who did not respond to the emails of the complainant company. It was only in September, 2020 that the complainant company received a phone call from the Service Relationship Manager from the Kotak Bank informing them that nothing conclusive could be found about the unauthorized access of bank statements/records. When information to this effect was sought in writing the Kotak Bank failed to provide any communication in writing.
3. Repeated requests and discussions with the accused Nos.3, 4 and 5 again did not result in any revelation to the complainant company as to how their confidential information could be revealed to third parties. The complainant company, therefore, suspected that the information was illegally disclosed and divulged by the bank officials only. It is further recorded in the FIR that the company's suspicions were confirmed when the statement of the complainant company's bank account was filed by a third party-i.e., the accused No.7 before the United States District Courts for the Middle District of North Carolina, USA. The accused No.7 had falsely represented before that court that the bank statements had been obtained from a 'whistle-blower" who was employed by the complainant company and who had legitimate access to the company's bank account. Since the complainant company had not issued any instruction or request for generation of a bank statement for the period of 1st April, 2016 to 1st July, 2020, it was apparent to them that somebody else leaked the information with the aid and collusion with the Kotak Bank officials to provide illegal benefits to the accused No.7.
4. The complainant company on 8th February, 2021 then sent an email to Signature Not Verified Digitally Signed BAIL APPLN. 1495/2022 and connected matters Page 3 of 11 By:MANJEET KAUR Signing Date:31.08.2022 23:39:57 the top management enclosing the leaked and divulged bank account statements asking for the identification of the culprits. The copy was also sent to the Reserve Bank of India (RBI) when there was no action on the part of Kotak Bank. The Reserve Bank of India registered the complaint on 25th February, 2021 for the unauthorized and illegal disclosure of the bank account statements of the complainant company to third parties. Subsequently, on 3rd April, 2021, the complainant company received an email from the Ms. Preeti Puthran, Service Assurance Officer Nodal Office Correspondence, Kotak Bank admitting that an employee of the Kotak Bank had illegally accessed the bank accounts without any written instruction and that stern action had been taken against him and his services terminated with immediate effect. But no details were provided to the complainant company. The Banking Ombudsman of the RBI issued directives on 3rd May, 2021 to the Kotak Bank and on the basis of which a vague and incomplete investigation report which disclosed the names of the employees responsible for the illegal acts without complete details of the accused No.1 or 2 was filed on 27th May, 2021. It was informed by the Kotak Bank that the accused No.1 had no access to the system and he had approached the accused No.2 Branch Sales Manager of the Kotak Bank to generate the statement and the accused No.2 had done so and the services of both had been terminated with immediate effect. It was also informed that some unknown persons had approached the accused No.1 for illegal access to the complainant's company bank account but no disclosures had been made.
5. It is in the background of all these facts that the complainant company has preferred to act against the bank officials who had violated the RBI Charter of Customers Rights, disclosing information of the customers to Signature Not Verified Digitally Signed BAIL APPLN. 1495/2022 and connected matters Page 4 of 11 By:MANJEET KAUR Signing Date:31.08.2022 23:39:57 third parties. The confidential information had been entrusted to the bank officials being accused Nos.1 to 6 which they had handed over to an unknown person in violation of the law and statutory rules. The complainant company stated in the FIR that they feared that the accused No.7 with his co-conspirator had used the bank statements to identify the customers of the complainant company under false pretexts, and had caused considerable harm to the complainant company severely damaging its reputation and goodwill.
6. The application No.1495/2022 has been filed by the accused No.1 seeking anticipatory bail under Section 438 CrPC for the applicant Pappu Kumar. Mr. Ajit Kumar, learned counsel for the applicant submitted that he had been falsely implicated in the FIR. It was also submitted that the co- accused No.8/Omkar Nath Tripathi was an old customer who had approached him for details of the bank account. According to the learned counsel, the applicant Pappu Kumar was misled into believing that the information was being sought by the relatives of the account holder. As such in good faith, he had obtained the bank statement from the co-accused Deepak Kumar as he had no access to the bank account statement himself. Learned counsel submitted that he had sent the request to the accused No.2/Deepak Kumar on his official email and had cooperated with the investigations by handing over his mobile phone. Thus, there was no further requirement of the investigating officers to interrogate the petitioner and, therefore, he may be protected by means of an anticipatory bail order.
7. The Bail Application No.1574 has been filed by the accused No.2/Deepak Kumar. Mr. Harish Nautiyal, learned counsel for the applicant has submitted that had there been something unlawful in what Deepak Signature Not Verified Digitally Signed BAIL APPLN. 1495/2022 and connected matters Page 5 of 11 By:MANJEET KAUR Signing Date:31.08.2022 23:39:57 Kumar had done, he would not have provided the details of the statement of the account of the complainant company, through his official email. Therefore he was not guilty.
8. It was submitted that the applicant had cooperated fully with the investigations, and he had nothing to hide and had no dishonest intentions. He has also handed over his mobile phone and there was nothing more to be enquired from him.
9. The bail application No.1525/2022 has been filed by the accused No.8/Omkar Nath Tripathi. Mr. Pramod Kumar Dubey, learned senior counsel for the applicant submitted that the registration of the FIR itself was bad in law inasmuch as initially a complaint had been filed with the EOW and an application under Section 156(3) had also been filed further with the learned CJM Gurugram which was withdrawn without taking permission to file any fresh application before the Delhi Court. However, such an application was filed under Section 156(3) Cr.P.C. and the learned MM had directed the registration of FIR. Thus, this was a case of forum shopping and disclosed mala fide intentions.
10. It was further submitted that no offence under Section 406 IPC was made out against the applicant as nothing had been entrusted to him. It was submitted that no loss had been caused to the complainant company by any alleged act of the applicant. It was submitted that after protection had been granted against coercive action, the applicant had participated in investigations and had even handed over his mobile phone which was now in police custody and sent for FSL analysis. Learned senior counsel argued that cooperation could not mean that the police could force a confession from the applicant. Moreover, relying on the judgment of the Supreme Court Signature Not Verified Digitally Signed BAIL APPLN. 1495/2022 and connected matters Page 6 of 11 By:MANJEET KAUR Signing Date:31.08.2022 23:39:57 in Birla Corporation Limited vs. Adventz Investments and Holdings Limited (2019) 16 SCC 610, it was urged that the use of unlawfully obtained documents in judicial proceedings would not tantamount to dishonest use or even theft. Thus, no case was made out against the applicant and in view of his cooperation in the investigations he be granted anticipatory bail.
11. Mr. Ritesh Kumar Bahri, learned APP for the State submitted that the role of each applicant could not be seen in isolation as they all had acted in concert with one another. There was a conspiracy in which bank officials were involved at various levels, as also, the accused No.8 and the accused No.7 had vital roles to play in the commission of the offence. It was also submitted that the accused persons have not fully cooperated with the investigations, particularly the accused No.8, who has been misleading the investigating officers by making incomplete disclosures. The WhatsApp chats were found deleted though one of the mobile phones that has been seized from the accused No.8 and the mobile phones of the accused Nos.1 & 2 had also been sent for forensic examination but at the same time, the accused No.8 had exchanged his phone on Flipkart and has not cooperated in retrieving that mobile phone. In the Status Report, it is also mentioned that the accused No.8 had disclosed that he had received a phone call from a person named Ranjeet who had also offered Rs.40,000/- but also claimed later that he did not know this Ranjeet. According to the learned APP for the State this only raised further suspicions. He had also made some disclosure of one Ravi Rastogi about whom he had not disclosed earlier. Thus, in order to unravel the conspiracy it was necessary to take the accused persons for custodial interrogation.
12. Mr. Sanjeev Vats, learned counsel for the complainant submitted that Signature Not Verified Digitally Signed BAIL APPLN. 1495/2022 and connected matters Page 7 of 11 By:MANJEET KAUR Signing Date:31.08.2022 23:39:57 the data and the bank accounts have been entrusted to the bank no doubt but the accused No.8 on being approached by the accused No.7 had conspired and connived with the bank officials to obtain confidential information which clearly was used by the accused No.7 to the detriment of the complainant company, as they had started losing business even from the existing clients on the basis of the confidential information alone. Though the complainant company raised the issue with the Kotak Bank way back in May-June, 2020, it was only when in February, 2021 that the accused No.7 had filed the account statements in the US Courts that the complainant company's suspicions were confirmed and action against the inaction of the Kotak Bank was initiated by the company. Thus, it was submitted that it was incorrect to claim that no damage had been caused to the complainant company or that the offence under Section 409 read with Section 34 IPC was not disclosed. It was also pointed out that there was no requirement for the commission of the offence of criminal breach of trust that loss be caused. It was submitted that the bail applications be dismissed.
13. I have heard the submissions of the learned counsel for the applicants, the learned APP for the State and the learned counsel for the complainant company and I have considered the record as well as the cited judgments. At the outset, it may be noted that the judgment of the Supreme Court in Santosh S/O Dwarkadas Fatfat vs. The State of Maharashtra (2017) 9 SCC 714 has no application to this case as in that case the IO was requiring the custody of the applicant for recording his confessional statement. That is not the situation here. As regards the judgment in Birla Corporation Limited (supra) it has been observed by the Supreme Court that the decision rendered was in the facts of the said case where the original documents Signature Not Verified Digitally Signed BAIL APPLN. 1495/2022 and connected matters Page 8 of 11 By:MANJEET KAUR Signing Date:31.08.2022 23:39:57 being documents 1 to 28 had been temporarily removed by shareholders to file them before the Company Law Board in order to support their claim of mismanagement and oppression. It is in these facts that it was held that though temporary removal would fulfil the requirement of moving the property which is the Actus Reus for the offence of theft as defined under Section 378 IPC and that loss may be caused even by temporary dispossession even if the person taking it intended to restore it sooner or later and information contained in a document if replicated could be considered theft and could result in wrongful loss but in the facts and circumstances of that case where the documents were used by shareholders in pending litigations between the parties, the other essential ingredient of the offence of dishonest intention was found to be missing. It is in that context that it was held that the filing of the criminal complaint was an attempt to cow down the respondents and deprive them of valuable defence. The said judgment does not deal with criminal breach of trust nor does it declare that in no case would dishonest removal of documents tantamount to theft, even if those documents were to be used in legal proceedings.
14. While dealing with what constituted dishonest intention it was held that a person could be said to have dishonest intention if in the taking of the property the intention was to wrongfully gain or to cause wrongful loss by unlawful means. If the accused No.7 wanted confidential information to file in his case pending in the US Courts, it stands to reason that he wanted to gain wrongfully through the acts of all the remaining accused including the present applicants being accused Nos.1, 2 & 8. That loss has in fact been caused to the complainant company is recorded in the FIR itself. It was in May-June, 2020 that the complainant company had noticed the impact on its Signature Not Verified Digitally Signed BAIL APPLN. 1495/2022 and connected matters Page 9 of 11 By:MANJEET KAUR Signing Date:31.08.2022 23:39:57 business on account of use of confidential information. It commenced enquiries with the Kotak Bank immediately. No information seems to have been forthcoming from the Kotak Bank for reasons that would certainly require investigations. The information was put to actual use by accused No.7 in February, 2021. Even a subsequent complainant to the Kotak Bank did not elicit the expected response from Kotak Bank to the concerns of its customers. Rather the complainant company had to reach out to the Reserve Bank which alone produced some response from the Kotak Bank.
15. The fact that the accused No.8 has revealed names only on repeated questioning reflects reluctance to cooperate in investigations. He also referred to some calls from a person he claims he did not know, promising a sum of Rs.40,000/- which also indicates that while loss has been caused to the complainant company unlawful gains were accruing to the accused persons. This aspect requires a greater degree of investigation also to find out whether the accused No.8 was facilitating the collection of confidential information unlawfully to the detriment of the person who owned the information.
16. To say that the offence of criminal breach of trust was not disclosed is without force. Criminal breach of trust would occur when a person with dominance over a property, dishonestly used that property in violation of any direction of law, prescribing the mode in which such trust needs to be discharged. The entrustment was of data with promised confidentiality. Data is property. RBI guidelines are binding on banks and so they are obligated to protect such property and zealously protect it against unlawful access by third parties. The bank officials/accused Nos.1 & 2 have breached the trust and have done so at the instance of accused No.8 and accused No.7.
Signature Not Verified Digitally Signed BAIL APPLN. 1495/2022 and connected matters Page 10 of 11 By:MANJEET KAUR Signing Date:31.08.2022 23:39:5717. It cannot be accepted that the accused Nos.1 and 2 acted on altruistic motives of assisting a friend. As pointed out by the learned counsel for the complainant company, the account of the complainant company was at JMD Regent Square Branch, Gurgaon. The accused No.1 was employed at the Netaji Subhash Bose Branch, whereas the accused No.2 was employed at the Model Town Branch and neither of them were in custody of the statements of the various accounts. They wrongfully accessed it and then supplied it to an outsider namely the accused No.8, who further supplied the same to the accused No.7, who then filed it in the court. It is not the filing of the data that is under scrutiny but the obtaining of the said data is the subject matter of investigation.
18. Many aspects of the case would be revealed only through a thorough interrogation of the accused persons. The requirement raised by the prosecution of the need for custodial interrogation cannot be lightly brushed aside and rejected outright.
19. In the light of the foregoing discussion, which needless to say is meant for the disposal of the bail applications only, this Court does not find merit in any of the bail applications as no ground is disclosed for granting anticipatory bail to any of the applicants. Accordingly, all these applications are dismissed.
20. The order be uploaded on the website forthwith.
ASHA MENON, J AUGUST 31, 2022 ak Signature Not Verified Digitally Signed BAIL APPLN. 1495/2022 and connected matters Page 11 of 11 By:MANJEET KAUR Signing Date:31.08.2022 23:39:57