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8.The learned counsel for the petitioners submits that as per Section 65 of the Information Technology Act, the computer source code is required to be kept or maintained for time being in force as per law. But in the present case, the defacto complainant has not preserved above data’s and maintained other things as per the law in force. Hence the witnesses who speaks about the source code and other software issue as alleged by the defacto complainant cannot be taken as a substantive proof.

14.The Respondent in their Counter alleged that the Revision Petitioners along with the accused A1 Mohammed Hayath, have been charge sheeted for the commission of offences u/s 65 , 66 of Information Technology Act r/w 120 (B) IPC and 408 IPC. The Defacto Complainant, Senthil Kumar, is the proprietor of “Soft Solution” functioning at No.11, Teacher Govindaraj Street, Arcot, Vellore District. He developed specialized accounting software on his own intellectual ideas and with the assistance of the other paid software developes. A1 Mohammed Hayath was the project co-ordinator of the “Soft http://www.judis.nic.in Solutions”. The Revision Petitioners A2 M.Murugan and A3 P.Abdul Razak entrusted an work order for computerizing the bank accounts of Tilruppathur Urban Co-operative Bank for the financial year of 2003- 2004 for Rs.1,40,000/- to the defecto complainant and he executed the work through A1 Mohamed Hayath by using the specialized software. But for the first half of the financial year 2004-2005, the same work order was entrusted to A1 Mohammed Hayath by the Revision Petitioners, who carried out the job by using the software stolen from the system of defacto complainant. The cost of the work amounting to Rs.71,000/- was shared by the revision petitioners. The case is mainly revolving around the Banking software developed by the Defacto complainant to suit the need of the computerization of the accounts of the Tiruppathur Urban Co-operative Bank. The Revision petitioners and A1 Mohamed Hyath were the beneficiaries from the stolen software.During the course of investigation, the Hard disk used by the defacto complainant and the Revision Petitioners for the computerization of the bank records were seized and subjected for digital analysis. The report indicated the use of the source code of the defacto complainant Tr.N.Senthilkumar’s banking software by A1. After getting an analysis report, final report under Section 173 of Cr.P.C. was filed before the learned Additional Chief Metropolitan Magistrate, http://www.judis.nic.in Egmore under Sections 65 and 66 of Information Technology Act 2000 r/w 120(B) IPC on 09.11.2006.

21.In the present case on hand, the entire issue starts with the Reserve Bank of India, who issued institutional notification to keep the all the financial accounts in a computerized firm and implementing necessary procedures for the maintenance of accounts and other documents related to the bank. But the sad state of affairs is that the bank was not having the computer facility at that point of time and have to avail outsource agencies by way of giving work orders. Accordingly for the year 2003-2004, the order was allotted to the defacto complainant as per the tender norms, which completed the work without any grievance. For the year 2004-2005, tender was again called for and the tender was allotted to the A-1 as his bid was http://www.judis.nic.in lowest. Besides, another part of the work was allotted to M/s Online, a different contractor. Since the second contract was awarded to A 1, the defacto complainant initiated this false case to settle his score against A1. There are no specific averments from the list witnesses attached to the final report that the contract awarded was not fully transparent and against the accepted norms. The specific case of the defacto complainant is that A1 used source code developed by him for his personal gains in the bank of the Revision Petitioners without his knowledge and he hacked the hard disc in order to damage the program developed by the defacto complainant. The facts being so, it’s the issue between him and A1. Furhter, no mens rea was attributed by any of the list witnesses against the Revision Petitioners. But in the present case, the defacto complainant have not preserved the original data and maintained the source code as per the Information Technology Act. Hence the list witnesses, which speaks about the source code and other software issue as alleged by the defacto complainant cannot be taken as a substantive proof. Mere allotment of contract by the Revision Petitioners could not be treated at par with hacking. It is also to be borne in mind that Section.79 of the Information Technology Act gives exemption for liability of intermediary in certain cases and hence the intermediary namely the http://www.judis.nic.in officials of the bank are not liable for the prosecution.