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11.A bare reading of the contents of the First Information Report shows that the third respondent police is the competent authority especially when Sections 78, 80 and 81 make it very clear that the provisions of Information Technology Act, 2000 will override the provisions of Code of Criminal Procedure. While reiterating that the Kensoft Infotech Limited is a software development company and that has developed finance software for use of housing companies and home loans business, the fifth respondent company states that it is an ISO 9001:2000 certified company with certification from BVQI and ANAB (ANSI-ASQ) National Accreditation Board of USA. The company has also been an Oracle partner for over 13 years and one of their major software that they developed is KEN-HFS and that was licensed in India to various companies since 1994, including the Bank of India, GIC Housing Finance, ICICI Bank etc., and also to Government of Andhra Pradesh, Andhra Pradesh State Financial Corporation, Economic Development Corporation Goa etc. In addition to that various software have also been used by the Reliance Petro Chemicals, Air India, Afro Asian Games, Government of Andhra Pradesh etc., It is stated that the petitioners have violated by tampering with the software, schema, source code of the fifth respondent resulting in tremendous loss to the fifth respondent. It is also stated that the petitioners have themselves assured the fifth respondent that the IPR will be protected by them. However, after admitting the same in November 2008 and in December 2008 after perpetuating the fraud the petitioners have falsely claimed copyright of the software and after violations were discovered the infringing code found on petitioners' server to cover up their illegal activities. It is stated that there is no disruption in the software and letters written by the second and fourth petitioners on behalf of the company would clearly indicate that they have satisfied with the work of the fifth respondent. It is also stated that they exposed to and colluded with the third parties who control hacking and tampering, copying and offences were committed and reverse engineered the software provided by the fifth respondent company and hacked the software schema source code committing violations of the provisions of the Information Technology Act, 2000. While it is true that the fifth respondent has filed a suit in C.S.No.270 of 2009 before the High Court of Madras, seeking various reliefs against the petitioners and the third party are not party to the arbitration and in spite of it an application was made for the purpose of referring to arbitration under Section 8 of the Act and that has been rejected in the appeal in O.S.A.Nos.431 to 433 of 2009. It is true that against the order in the abovesaid appeals, S.L.P has been filed by the petitioners and no stay has been granted by the Hon'ble Supreme Court. It is also stated that the petitioners have violated the Copyright of the fifth respondent and the illegal acts done by the petitioners have been established in the technical report of the Indian Institute of Technology, Computer Science and Engineering Department, IIT, Bombay, apart from the report of Dr.N.L.Sarda, who is an independent and eminent expert of international repute and other reports of experts.

46.Inasmuch as in the agreement it is clearly stated that Sundaram B.N.P.Paribas Home Finance Limited has been entrusted the Software with a specific undertaking not to give it to any third party without the permission from KEN-SOFT, the alleged conduct is stated to be cheating and committing breach of trust. It is also stated that while the officials of Sundaram B.N.P.Paribas Home Finance Limited on the one hand were giving assurance that they will take full care of the said Software, on the other hand, they were tampering and hacking the software thereby cheating the complainant. It is also complained that for the purpose of protecting the intellectual property right in respect of the software created by the complainant, a joint meeting was sought for between the officials of the complainant and the Sundaram B.N.P.Paribas Home Finance Limited for which it has not given its approval for co-ordination and the explanation required for the same. Without meeting the persons, it is complained that the Sundaram B.N.P.Paribas Home Finance Limited has sent list of data required to be migrated and it was observed that there was a discrepancy between the list and the list which they sent in August. It is stated that Dr.D.B.Phatak, Professor IIT, Mumbai along with the officials of the complainant have met the Sundaram B.N.P.Paribas Home Finance Limited in which the expert has given opinion that intellectual property right of KEN-SOFT must be honoured and proper method for data migration should be adopted which was stated to be accepted by the Sundaram B.N.P.Paribas Home Finance Limited. The further complaint is that on the one hand, Sundaram B.N.P.Paribas Home Finance Limited has been giving order for data migration and on the other hand, they were accessing the complainant licenced software hacking and making changes in it and using it and therefore, it amounts to cheating. It is further stated that when the complainant has informed Sundaram B.N.P.Paribas Home Finance Limited to give connectivity by email or to send CD back up, it was refused on the security reason and therefore, a request was made to disconnect test server from network and give connectivity by modem to avoid the security problem and that was also refused. It is stated in the complaint that when the Engineer of the complainant, Shailesh Patlekar was sent to Sundaram B.N.P.Paribas Home Finance Limited, it was found by him that changes were made in KEN-HFS Software and new external code was inserted. It was observed by him that software scheme was changed and external programme was loaded on it. It is stated that the manager of the complainant has requested to remove the external programme to avoid any error in future and in spite of the Sundaram B.N.P.Paribas Home Finance Limited was informed about it, no efforts taken to remove the external programme. It is stated that on 26.12.2008 a meeting was conducted in the office of Sundaram Finance along with Dr.Pathak, Mr.M.Acharya, Mr.Nitin Palani, Ms.V.Janaki, Mr.Swami Nathan etc., in which Dr.Pathak has mentioned that there has been a clear tampering of KEN-HFS software and it is stated that at that time, Mr.Acharya has accepted the loading of the external programme in the said software and the software was changed without assigning any reason. It is stated that the Sundaram B.N.P.Paribas Home Finance Limited has accepted that it will show the new software but never kept up the promise and the repeated request made by the complainant to remove the new software was not heeded to. It is stated that Dr.Pathak in his mail sent to Mr.Acharya, on 04.3.2009 that there has been violation source code and schema. It is thereafter, stated that Sundaram B.N.P.Paribas Home Finance Limited has failed to give connectivity and CD backup in order to avoid evidence to come to the hands of the complainant regarding hacking of the software belonging to the complainant. It is also specifically stated that the software was given for 75 Oracle Name User ASF licence but it transpired that about 300 oracle name users from back-up CD and by using more oracle name user and therefore, it is alleged that the petitioners have cheated the complainant using its KEN-HSF version 8.x software by copying it. It is stated that when the matter was sent to IIT, Mumbai for opinion, Dr.Sarda gave a report on 21.06.2009 stating that hacking and violation of various aspects was done. It is also stated by another Scientist, Dr.Jain of IRCC & Intellectual Property Cell, IIT, Mumbai, after considering the entire records in the report that IPR of KEN-HFS belonging to KEN Soft Company which is valuable and therefore, the claim made by the Sundaram company is wrong. Therefore, the complaint is that the Sundaram B.N.P.Paribas Home Finance Limited has misutilised the software belonging to the complainant by cheating and committing breach of trust causing damages to the company by deception preparing IPR stealing plan transferring to third party company and changing the software thereby committing breach of trust. It was based on the above said complaint given in the form of statement by the fifth respondent, the first information report came to be registered by the third respondent, which is challenged in W.P.No.2922 of 2011.

Explanation.-For the purposes of this section, "computer source code" means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form".

49.Likewise, Section 66 of the Information Technology Act also makes the hacking with computer system punishable for three years which is as follows:

"66.Hacking with computer system.-(1)Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.

64.Regarding the hacking of software, the fifth respondent has stated in the plaint as follows:

"35.The plaintiff states that the defendants with their knowledge has illegally and without authorization inserted various source codes to plaintiff software with a mala fide intent to prevent the plaintiff access and to tamper the evidence of their activities. The Log file also clearly reveals the insertion of external source code and reverse engineering committed by the defendants. Hacking, alteration of the software and unauthorized access is a trespass into the exclusive intellectual property rights vested in the plaintiff. The defendants have deliberately made unauthorized adaptation, alteration and misuse of the source code and software developed by the plaintiff which amounts to infringement of copyright. The defendants are also liable for the acts of torts and misfeasance committed by them deliberately and with dishonest intentions and motives".