Karnataka High Court
M/S Bloomberg Finance L P vs State Of Karnataka on 15 March, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION NO.4417/2012
C/W
CRIMINAL PETITION NO.4077/2012
IN CRL.P.NO.4417/2012:
BETWEEN:
1. M/s. Bloomberg Finance L.P.,
A Company incorporated under the
Laws of United States of America,
At 731, Lexington Avenue,
New York, N.Y.10022, USA.
2. M/s. D.P.Ahuja and Co.,
A Proprietary Concern,
M/s. Patent and Trademark Attorneys,
14/2, Palm Avenue,
Calcutta-700019, India.
3. Mr.Deniel L. Doctoroff,
President and Chief Executive Officer,
Bloomberg Finance L.P.,
731, Lexington Avenue,
New York, N.Y.10022, USA.
4. Mr.Sudhir D. Ahuja,
M/s. Constituted Attorney of Bloomberg
Finance L.P., 14/2, Palm Avenue,
Calcutta-700019,
Also O/at No.D/r.Casa No.1, 84/85,
Opposite to Hotel Rama, Levelle Road,
Bangalore-560 001.
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5. M/s.Sudarshana Sen Mitra,
Constituted Attorney of Bloomberg
Finance L.P., 14/2, Palm Avenue,
Calcutta-700019, India.
Also O/at No.D/r.Casa No.1, 84/85,
Opposite to Hotel Rama, Levelle Road,
Bangalore-560 001.
6. Ms.Heather Khanna,
Constituted Attorney of Bloomberg
Finance L.P., 14/2, Palm Avenue,
Calcutta-700019, India.
Also O/at No.D/r.Casa No.1, 84/85,
Opposite to Hotel Rama, Levelle Road,
Bangalore-560 001.
7. Mr.Ashish Banerjee,
Constituted Attorney of Bloomberg
Finance L.P., 14/2, Palm Avenue,
Calcutta-700019, India.
Also O/at No.D/r.Casa No.1, 84/85,
Opposite to Hotel Rama, Levelle Road,
Bangalore-560 001. ...Petitioners
[By Shri H.S.Chandramouli, Adv. for
Shri S.R.Shiva Prakash & Shri.K.Jayaram, Advs.]
AND:
1. State of Karnataka,
By Cyber Crime Police Station,
Palace Road, Bangalore,
Karnataka State,
By the SPP, High Court of Karnataka,
Bangalore-560 001.
2. M/s.Bloomberg Developers Pvt. Ltd.,
No.150, 10th Main, 4th Cross,
RMV Extension, Bangalore-560 080,
Rep. by its Authorised Signatory,
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Mr.Naman Agarwal. ...Respondents
[By Shri Ravi B. Naik, Senior Counsel for
Shri Aravind Kamath & Shri D.Vacheh, Advs. And
Shri Satish R. Giriji, HCGP for R-1]
This Criminal Petition is filed under Section 482 of
Cr.P.C. by the advocate for the petitioners praying that
this Hon'ble Court may be pleased to quash the entire
proceedings in the complaint in PCR No.10868/2012
alleging the offences punishable under Sections 65, 66
& 66-C of the Information Technology Act, 2000 read
with Section 120(B), Section 378, Section 511 and
Section 411 of IPC and the resultant CR No.14/2012
registered by the respondent No.1 for the offences under
Sections 66 and 66B of IT Act, 2000 on the file of the I-
Addl. C.M.M., Bangalore and all further proceedings
therein as against the petitioners.
IN CRL.P.4077/12:
BETWEEN:
1. Mr. Peter T. Grauer,
Age: Major, Chairman,
C/o. At: M/s.Bloomberg Finance L.P.
731, Lexington Avenue, New York,
NY 10022, USA.
2. Ms. Beth Mazzeo,
Age: Major,
C/o. At: M/s.Bloomberg Finance L.P.
731, Lexington Avenue, New York,
NY 10022, USA.
3. Mr.Thomsas F.Secunda,
Age: Major,
C/o. At: M/s.Bloomberg Finance L.P.
731, Lexington Avenue, New York,
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NY 10022, USA.
4. Mr.Matthew Winkler,
Age: Major,
C/o. At: M/s.Bloomberg Finance L.P.
731, Lexington Avenue, New York,
NY 10022, USA.
5. Ms.Aimee Nassau Gardiner,
Age: Major,
C/o. At: M/s.Bloomberg Finance L.P.
731, Lexington Avenue, New York,
NY 10022, USA.
6. Mr.Willian M.Ried,
Age: Major,
C/o. At :M/s.Bloomberg Finance L.P.
731, Lexington Avenue, New York,
NY 10022, USA. ...Petitioners
[By Shri K.G. Raghavan Senior Counsel for
Shri S.R.Shiva Prakash, Adv.]
AND:
1. State of Karnataka,
By Cyber Crime Police Station,
Palace Road, Bangalore,
Karnataka State,
By the SPP, High Court of Karnataka,
Bangalore-560 001.
2. M/s. Bloomberg Developers Pvt. Ltd.
No.150, 10th Main, 4th Cross,
RMV Extension, Bangalore-560 080
Rep. by its authorised signatory
Mr. Naman Agarwal. ...Respondents
[By Shri Ravi B. Naik, Senior Counsel for
Shri Aravind Kamath & Shri D.Vacheh, Advs. And
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Shri Satish R. Giriji, HCGP for R-1]
This Criminal Petition No.4077/2012 is filed
under section 482 Cr.P.C. by the Advocate for the
petitioners praying that this Hon'ble Court may be
pleased to quash the complaint in PCR No.10868/2012
on the file of the I-ACMM, Bangalore alleging the
offences p/u/s. 65, 66 & 66-C of the Information
Technology Act, 2000 R/w. Section 120-B, 378, 411 of
IPC and the resultant Crime No.14/2012 registered by
R1 for the offences u/s. 66 & 66B of IT Act, 200 0 dated
28.06.2012 and all further proceedings therein.
Reserved on : 05.02.2013
Pronounced on : 15.03.2013
These Criminal Petitions having been heard and
reserved for orders, coming on for pronouncement of
order this day, the Court delivered the following:
ORDER
In these two petitions filed under Section 482 of Code of Criminal Procedure, petitioners have sought for quashing the entire proceedings in the private complaint filed by respondent No.2 in P.C.R. No.10868/2012 and the F.I.R. registered by Cyber Crime Police Station, Bangalore, in Crime No.14/2012, pursuant to the order of reference made by the I Additional Chief Metropolitan Magistrate, Bangalore and all further proceedings therein.
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2. Petitioners 1 to 3 in Criminal Petition No.4417/2012 have been arraigned as accused Nos.1 to 3 and petitioner Nos.4 to 7 therein, have been arraigned as accused Nos.10 to 13, while petitioner Nos.1 to 6 in Criminal Petition No.4077/2012 have been arraigned as accused Nos.4 to 9 in the Private Complaint. The respondent No.2 herein M/s. Bloomberg Developers Private Limited, filed private complaint against these petitioners alleging various offences punishable under Sections 65, 66, 66-C and 85 of the Information Technology Act (for short I.T. Act), Sections 120-B, 378, 411 and 511 of the Indian Penal Code. In said complaint it was inter alia alleged that the complainant is a Company, incorporated under the provisions of Companies Act; that the complainant - Company develops housing projects, residential townships, hospitals, hotels and various other commercial projects in major cities and business centers in India and in addition, the complainant is expanding its activities on global scale in other areas such as Infrastructure, Hotel :7: Industry, Airways, Entertainment, Power and Steel, Logistics and Ports , Hospitality, Cements, Oil and Gas, Green Ventures etc.; that the complainant owns a trade mark "Bloomberg" in India and it has filed a trade mark application for obtaining registration of the mark "Bloomberg" under various Classes in Indian Trade Marks Office; that all those applications are pending for registration before the Trade Marks Offices in Mumbai and Chennai; that the complainant has adopted trade mark "Bloomberg" under the various business activities in India and it has incorporated 20 subsidiary Companies for handling its day today business activities; that the complainant - Company has created an email account "[email protected]" and "[email protected]" and these email accounts are exclusively used by the Chief Managing Director and management team of the Company to communicate with Vendors, Customers and Bankers etc.; that the complainant's use of trade mark "Bloomberg" in India has been challenged by accused :8: No.1 before the Indian Trade Marks Offices in Mumbai and Chennai and the said proceedings are contested by the complainant, as such they are pending for adjudication; that in the said proceeding, accused No.1 is represented by accused Nos.2 and 10 to 13; that accused No.1 has also challenged the domain name registration obtained by the complainant before the National Arbitration Forum in U.S.A. under the Uniform Domain Name Dispute Resolution Policy adopted by Internet Corporation for Assigned Names and Numbers; that on 13.04.2012, the complainant received copies of the complaint and annexures filed by accused No.1 before the National Arbitration Forum in the Domain Dispute matter and on verification of the complaint and annexures attached thereto, the complainant were shocked to notice that few documents of complainant - Company which are confidential in nature were also submitted to the Forum along with other documents by accused No.1; that those informations of the complainant presented by the accused No.1 are :9: confidential in nature and not available in public domain to any persons and on further verification of documents and details, the complainant discovered that the two emails had been forwarded from the complainants' email accounts to the email account of accused No.2, who were the Legal Advisors of accused No.1 in India and to those two emails, several attachments were also forwarded to accused No.2; that accused No.2 in turn had forwarded those emails to accused No.1 so that the said documents, materials and contents can be used as part of the annexures in domain dispute complaint filed against the complainant before the National Arbitration Forum; that immediately the complainant tried to log in to their email account "[email protected]" and found that the log in and password of the said email account have been changed; that the complainant also noticed a notification on the screen that the password for the said email account was changed about three months ago; that since the password of the complainant's said email : 10 : account had been changed, the complainant could not access to its email account for any purpose and later when the complainant tried to log in to the said email account just before filing the complaint, it was noticed that the said email account has been deleted, that the complainant believes that some persons at the behest of accused Nos.1 and 2 have illegally hacked the email account of the complainant and have gained unauthorised access to the data and informations of the complainant - Company; that the information so stolen by hacking the email account are confidential informations containing documents relating to complainant's financial details, business plan on further expansion in India, copies of communications exchanged by the complainant with the bankers relating to overseas fund transfers, communications exchanged by the complainant with its Vendors and business associates relating to Company's business transactions and activities etc.; that those informations are not available in public domain to any person, as it would be : 11 : detrimental to complainant's business if those informations are available in public domain; that the accused persons have not only obtained access to these confidential information but have also presented the same before the National Arbitration Forum in U.S.A. as part of their annexures in the ongoing Domain Dispute case; that during the last week of May 2012, accused No.1 approached the Indian Domain Registry namely "IN Domain Name Dispute Registry", National Internet Exchange of India and initiated Arbitration proceedings against the complainant's domain name registration of "bloombergrealty.in" and during the first week of June 2012, the complainant received the copies of the complaint and annexures attached thereto before the Arbitrator and once again the complainant was shocked to note that the aforesaid hacked emails dated 06.02.2012 along with attachments were referred to in the said complaint also; that thus from the above, it is evident that accused Nos.1 and 2 have illegally used the hacked emails and stolen informations as part of the : 12 : pleadings before the Arbitrator Indian Domain Name Dispute Registry and have also relied on the hacked emails and stolen contents to showcase the complainant's other business activities using the "bloomberg" including financial business plan and other information, which is not available in public domain; that in addition to the above proceedings, the accused No.1 has also used the aforesaid hacked emails and its contents dated 06.02.2012 in filing the application under Section 22 of the Companies Act, before the Office of the Regional Director, Ministry of Corporate Affairs, Government of India, Mumbai for seeking rectification of name of complainant's - Company, namely 'Bloomberg Realty (India) Private Limited'; that in these proceedings the accused No.1 have made false allegation that the complainant themselves have sent the said emails to the Office of the accused No.2 in response to the Cease and Desist legal notice issued on behalf of accused No.1 earlier; that accused Nos.1 and 2 had received and used the stolen property obtained : 13 : through hacking of email account of the complainant and thus, accused Nos.1 and 2 had unauthorized access to the complainant's email account and also to confidential informations to which they were not privy to and that accused No.2 along with accused Nos.10 to 13 have colluded in collating the confidential informations of the complainant - Company and making use of the same before the National Arbitration Forum in Domain Dispute matter in USA, Arbitration before the Indian Domain Name Registry, Office of the Regional Director, Ministry of Corporate Affairs, thereby have committed offences punishable under Sections 120-B, 378, 411 and 511 of the Indian Penal Code and also Sections 65, 66 and 66-C of the I.T. Act; that the illegal hacking of the email account of the complainant, stealing of information and the data of the informations relating to the complainant, tampering the log in details and password details of the email account of the complainant and destroying the email account of the complainant has taken place with full consent or : 14 : connivance of accused Nos.3 to 13, as such, the accused are guilty of offence punishable under Section 85 of the Information Technology Act. Therefore, the complainant prayed for taking cognizance of the offence and issue process or in the alternative to refer the complaint to Cyber Crime Police for investigation.
3. On presentation of the complaint, the learned Magistrate referred the complaint under Section 156(3) of the Code of Criminal Procedure to the Cyber Crime Police for investigation and report. Upon such reference, the 1st respondent Police registered the case in Crime No.14/2012 for the offences punishable under Sections 66 and 66(b) of the I.T. Act, 2000 and took up investigation. On coming to know of the same, the petitioners - accused have presented these petitions seeking to quash the complaint as well as F.I.R. registered, pursuant to the reference made and all further proceedings therein, inter alia on the ground that they are innocent of the commission of the offence alleged; that even if the entire case of the prosecution is : 15 : accepted to be true, it does not make out the essential ingredients of the offences alleged; that prima facie there are no nexus between them and the alleged offences; that the continuation of criminal proceedings is not warranted as it would be the abuse of process of law; that the complaint is filed as a counter blast to the various proceedings initiated by accused No.1 before different Forums and to coerce accused No.1 to withdraw all those proceedings and also to wreak vengeance against the petitioners; that the entire dispute is civil in nature and there is no element of criminality in any of the alleged acts, as such initiation of the criminal proceedings is actuated with malafides, as such it is liable to be quashed; that accused No.1 being a Company incorporated under the provision of Companies Act is a juridical person and such juridical person is made as accused without being represented by any human agency in an accusation of having committed physical offence of hacking, theft or otherwise; that the complaint does not disclose as to : 16 : how the petitioners are responsible or that the offences are committed with their consent or connivance; that the allegation made in the complaint does not make out a case of mens-rea on the part of these petitioners, as such, the complaint is not sustainable in law; that the allegations made in the complaint does not indicate relationship of accused Nos.10 to 13 in relation to accused No.1 and vague allegations that they are in- charge and responsible for the business and conduct of the accused No.1 does not make them responsible for the offences alleged to have been committed by accused No.1 in terms of Section 85 of the I.T. Act; that the two emails referred to in the complaint were sent by the complainant themselves to accused No.2 by way of reply to the notice dated 20.01.2012 issued by the accused No.1, therefore, complainant having so voluntarily sent the emails, cannot be permitted to make allegations of hacking into its email accounts and making such allegations would prima facie make out fraudulent intention on the part of the complainant, that the : 17 : dispute between the accused No.1 and the complainant is purely civil in nature and the complainant by twisting the facts and manipulating the events as an after thought is trying to make out a false case of commission of the offence under the I.T. Act and the Indian Penal Code only to harass the petitioners; that the complaint as well as the further proceedings thereon suffer from lack of jurisdiction, as such, the learned Magistrate ought not to have entertained the complaint.
4. This Court while entertaining these petitions and ordering issue of notice to the complainant - respondent No.2, stayed the investigation, by Cyber Crime Police. Upon service of notice of these two petitions, the respondent No.2 - complainant appeared through its counsel and filed a detailed statement of objections, reiterating the averments made in the complaint lodged before the learned Magistrate. Along with statement of objections, copies of several documents were also produced.
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5. I have heard Shri K.G.Raghavan, learned senior counsel and Shri H.S.Chandramouli, learned counsel appearing for the petitioners in these petitions and Shri Ravi B. Naik, learned senior counsel for respondent - complainant. Apart from reiterating the grounds urged in these petitions both the counsel appearing for petitioners contended that the allegations made in the complaint, even if are accepted at its face value does not make out any offence alleged in the complaint or the offences for which respondent No.1 - Police have registered the case and that even from the allegations made in the complaint, it is manifestly clear that several proceedings initiated by the accused No.1 are pending before different Forums both in India and in U.S.A., in respect of several illegalities committed by the complainant - Company and therefore, the complaint has been presented only with a view to coerce the petitioners to come to its terms, as such, the complaint is actuated with malafides and to wreak vengeance against the petitioners, therefore, the order of reference : 19 : by the learned Magistrate and consequent registration of the F.I.R. by the Police is an abuse of process of law and is liable to be quashed. They also contended that the dispute between the accused No.1 and the complainant is purely civil in nature and such civil dispute is sought to be converted into a criminal offence by twisting the facts, therefore, this Court in exercise of the inherent power saved under Section 482 of the Code of Criminal Procedure is required to quash the complaint and also the F.I.R. to prevent abuse of process of law. In addition, the learned senior counsel further contended that in the complaint, accused No.1 - Company is not represented by any human agency and in the complaint, there is no allegation as to how accused Nos.3 to 13 are answerable for the alleged offences said to have been committed by the accused No.1, as such, the complaint as against accused Nos.3 to 13 is not maintainable. In this regard, learned senior counsel sought to rely on the two decisions of the Apex Court (S.M.S. Pharmaceuticals Ltd., v. Neeta Bhalla, AIR : 20 : 2005 SC 3512 and N.K.Wahi vs. Shekhar Singh, AIR 2007 SC 1454), rendered while considering the provisions of Section 141 of the Negotiable Instruments Act, which according to the learned senior counsel is similar to Section 85 of the I.T. Act.
6. Learned senior counsel also sought to place reliance on the following decisions of the Apex Court regarding the exercise of the inherent power under Section 482 of the Code of Criminal Procedure by the High Court to quash the complaint or the FIR.
i) Maharashtra State Electricity
Distribution Co. Ltd., vs. Datar
Switchgear Ltd,. (2010) 10 SCC 479.
ii) Som Mittal vs. Government of
Karnataka, AIR 2008 SC 1528.
7. He also placed reliance on the decision of this Court in V.G. Sreeram vs. Smt. Indumati B. Chandachal and Others, 2007 Crl.L.J. 3089, to support the contention that since the allegation regarding : 21 : cheating is bereft of details of specific role assigned to each of the Directors, it is a case for quashing.
8. Learned senior counsel also placed reliance on the decision of the Supreme Court in Joseph Salvaraja vs. State of Gujarat, (2011) 7 SCC 59, to support his contention that purely civil dispute is sought to be given colour of criminal offence wreak vengeance is a circumstance warranting quashing of the complaint and FIR by the High Court in exercise of the inherent power under Section 482 of the Code of Criminal Procedure to prevent abuse of process of the Court.
9. On the other hand, the learned senior counsel appearing for the respondent No.2 - complainant apart from reiterating the contents of the complaint filed before the jurisdictional Magistrate, contended that the allegations made in the complaint read as a whole, make out prima facie case against the petitioners for the offences for which the respondent : 22 : No.1 - Police have now registered the case and that even though certain proceedings initiated by accused No.1 against the complainant - Company are pending before different Forums both in Indian and U.S.A., the offences complained of are not related to the civil dispute but they relate to the illegal activities done at the behest of the petitioners in hacking the email account of the complainant and stealing the data and documents and then making use of them before the different forums constitutes an offence which require to be investigated. He further contended, the very fact that the accused No.1 in the various proceedings initiated by it against the complainant - Company has made use of the confidential informations relating to the complainant which was not in public domain would indicate that it was only at the behest of the petitioners who were the functionaries of accused No.1, email account of the complainant was hacked and the informations have been stolen. He further contended that since accused No.1 is the beneficiary of the informations so stolen by : 23 : hacking into the email account of the complainant, prima facie it has to be presumed that it was at the behest of the accused No.1 and its functionaries, such hacking has been done, as such, the allegations made in the complaint prima facie make out the offences punishable under the I.T. Act, which warrants investigation to find out as to who hacked into the email account of the complainant and at whose instance such hacking was done. He further contended that the plea raised by the petitioners that the complainant themselves sent the email to accused No.2 along with attachments by way of reply to the legal notice sent are in the nature of defence plea and on such defence pleas, the High Court in exercise of the inherent power under Section 482 of the Code of Criminal Procedure cannot quash the complaint and the F.I.R., as, such defence pleas will have to be substantiated at the trial. He further contended that this plea raised on behalf of the petitioner has all more made it necessary to investigate as to who and from where such email was sent to email : 24 : account of accused No.2. He further contended that having regard to the above controversy, the Investigation Officer should be allowed to investigate and find out the truth and in this regard, the petitioners should not feel shy since the investigation into this matter would unearth the truth, and for that purpose, the investigation is very much necessary.
10. The learned senior counsel placed reliance on the decision of the Supreme Court in Rajiv Modi vs. Sanjay Jain, (2009) 13 SCC 241 and Iridium India Telecom Limited vs. Motorola Incorporated and Others, (2011) 1 SCC 74.
11. I have bestowed my anxious considerations to the submissions made on both sides. The point that arise for my consideration in these petitions is "whether the complaint lodged by respondent No.2 and the F.I.R. registered by respondent No.1 on the reference made by the Jurisdictional Magistrate and the proceedings thereon are liable to be quashed by this Court in : 25 : exercise of inherent power under Section 482 of the Code of Criminal Procedure."
12. The law as to the circumstance under which the High Court in exercise of the inherent power saved under Section 482 of the Code of Criminal Procedure could quash the complaint and F.I.R. is now very much crystallized. In State of Haryana and Others vs. Ch. Bhajan Lal and Others, AIR 1992 SC 604, the Apex Court has set out the categories of cases in which the High Court may exercise the power under article 226 of the constitution of India under Section 482 of the Code of Criminal Procedure and interfere in proceedings relating to cognizable offence to prevent abuse of process of any Court or otherwise to secure the ends of justice. In this decision, the Apex Court has given a note of caution that power should be exercised sparingly that too in rarest of rare cases. The categories of cases set out in the said decision which are relevant for our purpose are as under: -
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"1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2) Where the allegations in the First Information Report and the materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.155(2) of the Code.
3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
5) Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is : 27 : sufficient ground for proceeding against the accused.
7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
13. It is further ruled in this decision where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated therein calling for exercise of extraordinary power or inherent powers, quashing of F.I.R. is not justified. The aforesaid principles have been reiterated from time and again by the Apex Court in several decisions. Keeping in mind the aforesaid principles, let me consider the case on hand.
14. As noticed supra, though in the complaint, the complainant has alleged several offences punishable : 28 : under the Indian Penal Code in addition to the offences punishable under I.T. Act, as could be seen from the F.I.R., respondent No.1 Cyber Crime Police have registered the F.I.R. only for the offences punishable under Sections 66 and 66(b) of the IT Act. This is obviously because the main grievance made out by the complainant is that its email account has been hacked by someone at the behest of these petitioners and they have stolen the confidential informations and datas available therein which have been used in other proceedings initiated by accused No.1. Thus, from the perusal of the F.I.R., it is clear that the investigation commenced by the 1st respondent is only in relation to the offence under the I.T. Act. However, if during investigation commission of any other offence which are punishable either under the Indian Penal Code or under any other law is revealed, the Investigation Officer may include such offence. However, whole case revolves on the allegation of hacking into the email account of the : 29 : complainant and stealing of the confidential informations.
15. No doubt, in the complaint, the complainant has alleged that it believes some person at the behest of accused Nos.1 and 2 have illegally hacked its email account and have gained unauthorised access to data and the informations of the complainant - Company and have stolen all such informations. As noticed supra, it is the contention raised on behalf of petitioners that the said email was sent by the complainant - Company itself by way of reply to the legal notice to accused No.2. The fact that the two emails referred to in the complaint originating from the email account of the complainant - Company having been received by accused No.2 through his email account is not in serious dispute. Therefore, it has to be found out by a proper investigation as to who and from where sent the emails. This can be found out only by a proper investigation by a specialised agency. Having regard to the nature of the acts alleged, it cannot be possible for : 30 : the complainant to make definite and specific allegations against anyone. However, the fact that those informations received by accused No.2 have been used by accused No.1 in various proceedings initiated by it against the complainant is not also seriously disputed. It is not the case of the petitioners that those informations were in public domain. Having regard to the fact that those informations relating to the complainant's Company which according to the complainant are confidential in nature, have been made use of by accused No.1 - Company in various proceedings initiated by it against the complainant - Company, the complainant has alleged that it believes that it was only at the behest of accused Nos.1 and its functionaries someone has hacked into the email account and have stolen the informations.
16. It is in this background, the argument of the learned senior counsel regarding vicarious liability on the part of the functionaries in the Company requires to be considered.
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17. No doubt, the Apex Court in various decisions while interpreting the scope of Section 141 of the Negotiable Instruments Act has held that it is necessary for the complainant in such complaints to specifically plead as to how the functionaries of the Company are vicarious liable for the acts of the company. In Datar Switchgear Limited case, referred to supra relied upon by the learned senior counsel for the petitioners, the Apex Court has held that there should be specific averments in the complaint demonstrating the role of the Chairman of Company when the offence alleged was by a Company. In this decision, it has been held that presumption cannot be drawn that a Chairman of a Company is responsible for all acts committed by or on behalf of Company. It is further held that wherever, by a legal fiction principles of vicarious liability is attracted, it has to be specifically provided in the statute concerned and it is incumbent on the complainant to specifically aver the role of each of the accused in the complaint. Section 85 of the I.T. : 32 : Act, no doubt, is similar to the provisions of section 141 of the Negotiable Instruments Act. However, having regard to the nature of the acts alleged and since the complainant by itself cannot ascertain as to who hacked into its email account and stolen the informations and since the belief of the complainant that such hacking has been done at the behest of the accused persons is based on the fact that such informations have been referred to and used by accused No.1 in the various proceedings initiated by it against the complainant and since the fact as to who hacked into the email account. If there was a hacking, and whether to such hacking was done at the behest of these petitioners are matters for investigation by specialized agency, the analogy drawn on the principles laid down in the aforesaid decisions cannot be applied to the case on hand. Having regard to the peculiar situation and since the complainant by itself cannot ascertain as to who hacked into the email account, the complainant cannot be expected to plead specific role of each of the petitioners. : 33 : Having regard to the fact that there undisputably those informations have been used by accused No.1 in various proceedings initiated by accused no.1 against the complainant, want of averments regarding the specific role of each of the petitioners cannot be a circumstance to quash the complaint and the F.I.R. No doubt, present complaint came to be filed after the complainant received notices in the various proceedings initiated against it by accused No.1. However, on that ground, it cannot be said that the complaint filed was with a malafide intention of either coercing the petitioners or to wreak vengeance. According to the complainant, he came to know about the access to its email account by someone only after receiving the notices of the proceedings initiated by accused No.1 before various Forums. Therefore, pendency of the proceedings initiated by accused No.1 against the complainant do not constitute a ground for quashing the compliant and the F.I.R. Having regard to the allegations made in the complaint, it cannot be said that the offences alleged are : 34 : civil in nature, nor it can be said that the allegations made in the complaint read as a whole do not constitute any offence. As already noticed supra, the fact that accused No.2 received the email from the email account of the complainant is not in dispute. The fact that those informations have been used in various proceedings initiated by the accused No.1 against the complainant is also admitted. No doubt, the petitioners contended that these two emails were sent by the complainant themselves. However, on the basis of such statement this Court cannot quash the complaint or the F.I.R. in exercise of the inherent power saved under Section 482 of the Code of Criminal Procedure. This is a disputed fact. No doubt, in Anita Malhotra vs. Apparel Export Promotion Council and Another, (2012) 1 SCC 520, the Apex Court has held that though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document, which is beyond suspicion or doubt, placed on record by the : 35 : accused and if it is considered, the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter, even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code of Criminal Procedure. However, in the case on hand, since the contention of the petitioners that the emails were sent by the complainant themselves is a disputed fact and not borne out by any document beyond suspicion or doubt, the aforesaid decision has no application to the case on hand. Therefore, it cannot be said that no case is made out against the petitioners.
18. With regard to contention raised on behalf of the petitioners regarding absence of plea to indicate 'mes-rea' and on that basis claiming immunity, it is necessary to note the observation of the Apex Court in Iridium India Telecom Ltd., referred to supra. The relevant observations found in para 55 read as under: - : 36 :
"55. We are of the considered opinion that there is much substance in the submission of Mr. Jethmalani that virtually in all jurisdictions across the world governed by the rule of law, the companies and corporate houses can no longer claim immunity from criminal prosecution on the ground that they are incapable of possessing the necessary mens rea for the commission of criminal offences. The legal position in England and United States has now crystallised to leave no manner of doubt that a corporation would be liable for crimes of intent."
19. Having regard to the facts and circumstances of the case and the discussions made above, I am of the considered opinion that the allegations made in the compliant, read as a whole constituted cognizable offence justifying registration of the case and investigation thereon for the offence under the I.T. Act for which the 1st respondent has now registered the case and since the case does not fall under any of the categories enumerated in Bhajan Lal's : 37 : case referred to supra, I am of the considered opinion that it is not a fit case for exercise of the inherent power of this Court saved under Section 482 of the Code of Criminal Procedure to quash the prosecution.
In this view of the matter, I find no merit in these petitions. Accordingly, the petitions are rejected.
Sd/-
JUDGE Rsh