Andhra Pradesh High Court - Amravati
B.Kiran Kumar, vs The State Of Andhra Pradesh, on 15 October, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Criminal Petition No.3374 of 2013
ORDER:
This petition under Section 482 of Criminal Procedure Code (for short 'Cr.P.C') is filed to quash the proceedings against the petitioner/accused in F.I.R No.63 of 2013 of Visakhapatnam III Town Police Station, registered for the offences punishable under Sections 408, 420 IPC and Section 66 of Information Technology Act, 2000.
2. The allegations made against this petitioner are that the petitioner was working as an employee in the 2nd respondent company. The 2nd respondent company is M/s Gaian Solutions India Pvt. Ltd., at Visakhapatnam and during the year 2010-2011 the company was going through financial difficulties and unable to retain some of its key employees. They lost senior employees during this period. They could not pay salaries to all employees and permitted them to leave the company while identifying the petitioner Kiran Kumar to attend to the clearance of dues to the employees and authorized to receive training and knowledge transfer of all technologies and products of the company had built. As a result when employees were leaving the company, they were training Kiran Kumar in their technology, handing off computer program source code and physical laptops to Kiran Kumar.
3. The petitioner Kiran Kumar carefully waited until he got all technology code and 3 laptops from other employees and then suddenly went home and sent a resignation letter without any prior intimation to the 2nd respondent company and retained 2 iphones, ipod device and 2 laptops (1 Sony Vio Laptop and 1 Campaq Laptop) to build competing product. Once computer code is copied even if we have got the laptops back the technology is permanently compromised and thus committed an offence punishable referred above.
2
4. On the basis of the complaint lodged with the police a case was registered in F.I.R.No.63 of 2013. The petitioner herein is the accused in the above case filed this petition on the ground that the allegations made in the complaint even if accepted on its face value do not constitute any offence much less an offence punishable under Sections 408, 420 IPC and Section 66 of Information Technology Act, 2000, and that the modernized material produced by the petitioner along with the petition would show that the petitioner was an honest hardworking employee and he has no liabilities during his tenure and thus the investigating agency cannot proceed to investigate into the offence since it is nothing but abuse of law and requested to quash the proceedings in F.I.R.No.63 of 2013 of Visakhapatnam III Town Police Station for the offences referred above.
5. During hearing the learned counsel for the petitioner draw the attention of this Court to the various letters i.e., Role Revision letter dated 23rd May, 2009, Resignation Letter, Experience Letter and Relieving Letter etc., to show that the petitioner had discharged his duties and responsibilities and he has no dues with the company. Thus, the petitioner being software architect did more for his company and prayed to quash the proceedings.
6. A bare look at the allegations made in the complaint that the petitioner being software architect was entrusted with the duty to receive training source and knowledge transfer of all technologies and products the company had built. He was trained by other employees who left the company handing of computer program source code and physical laptops to him, but he used 2 laptops and 2 iphones belonging to Gaian Solutions India Pvt., Ltd., and using of computer code without the knowledge of the 2nd respondent company constitutes an offence punishable under Sections 408 IPC and Section 66 (C) of Information Technology Act, 2000.
3
7. Section 408 of IPC deals with criminal breach of trust by clerk or servant. The petitioner is a servant of Gaian Solutions India Pvt., Ltd., The word 'criminal breach of trust' is defined under Section 405 IPC "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
8. In the present case, the duty of the petitioner is to receive training and knowledge transfer of all technologies and products of the company had built apart from the computer program code built by the company from other employees who are leaving and he retained the laptops and 2 iphones, though it was under the obligation to those who elapsed and iphones before he left the company. The petitioner sent resignation letter dated 06.08.2009 by email to the 2nd respondent company without returning those 2 laptops and ipods and retention of those 2 laptops and iphones after resignation is prima facie constitute an offence punishable under Section 408 IPC.
9. The other offence as alleged is punishable under Section 66 (C) of Information Technology and Section 66 (C) prescribes punishment for identity theft. Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.
4
10. In the present case the allegation made in the complaint is clear that the 2nd respondent in the last para of the complaint stated that the petitioner copied the computer code from the laptops. Thus, constitute the allegations made prima facie punishable under Section 66 (C) of Information Technology Act, 2000.
11. At this stage when the investigation is at the fetus stage and the Apex Court time and again held that the Court cannot quash the proceedings. In State of Orissa v. Saroj Kumar Sahoo1, the Supreme Court held that the inherent powers under Section 482, Cr. P.C. should not be exercised by the High Court to stifle a legitimate prosecution. The High Court, being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. While exercising jurisdiction under Section 482 of the Cr.P.C., it is not permissible for the Court to act as if it was a trial court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence.
1 (2005) 13 SCC 540 5
12. In view of the foregoing discussion, it is needless to exercise the inherent power under Section 482 Cr.P.C to quash the proceedings against the petitioner, as the investigation is not yet commenced till date. Consequently, the petition is liable to be dismissed.
13. In the result, this criminal petition is dismissed.
Consequently, miscellaneous petitions, pending if any, shall stand closed.
____________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated: 15.10.2019 IS 6 THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY Criminal Petition No.3374 of 2013 Date: 15-10-2019.
IS