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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 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 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 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 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 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 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 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 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.

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 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 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 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.

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 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.

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. 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. 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 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 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.