IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF MAY 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.322/2014 BETWEEN:
Mr.Abraham Lincoln Director of Business & Sales Aged about 32 years M/s.Ways2save Consultancy Private Limited Maruthi Chambers 17/C & 17/4C Left Wing, Roopena Agrahara Hosur Road Bangalore - 560 068. ...Petitioner (By Smt.Jayna Kothari, Sr.Adv. a/w.
Sri Rohan Kothari, Adv. ) AND:
1. State of Karnataka Through Madivala Police Station Bangalore 560 068.
2. Bipin Khimasia Director, Major M/s.Mainstay Teleservices Pvt.Ltd., N.R.Towers, 14, 100 Feet Road BTM 1st Stage Bangalore 560 068. …Respondents (By Sri Nasrulla Khan, HCGP for R1, Sri Joshua H.Samuel, Adv. for R2) This Criminal Petition is filed under Section 482 Cr.P.C Praying to Quash the Complaint Dated 16.05.2013 and FIR Dated 17.05.2013 produced as Annexure-A And Annexure-B respectively In Cr.No.408/2013 pending on the File of the III ACMM, Bangalore, respectively.
This Criminal Petition coming on for admission this day, the Court made the following:-
ORDER Petitioner has sought for quashing of the complaint dated 16.05.2013 and FIR dated 17.05.2013 (Annexure-A and Annexure-B) respectively in Cr.No.408/2013 pending on the file of the III ACMM, Bangalore.
2. Heard learned Sr.Counsel appearing for the petitioner and the learned counsel for respondents.
3. The learned counsel for the petitioner has urged four-fold contentions. Firstly, he contends that, the allegations made in the complaint are vague and bald. Secondly, no active role is attributed to the petitioner in the complaint. Thirdly, dispute between the parties is the subject matter of civil litigations. Lastly, the allegations made in the complaint, even if accepted uncontroverted do not attract ingredients of the offences alleged in the FIR and hence, the initiation of proceedings against the petitioner are illegal and an abuse of process of Court.
3. None of these contentions deserve to be accepted.
4. A reading of the complaint discloses clear ingredients making out cognizable offence justifying registration of the case and investigation thereon. The complaint reads as under:
“To:
The Inspector of Police Madivala Bangalore.
Subject: Theft (with Criminal/Intent) Dear Sir, Complaint against: Mr.Abraham Lincoln, Director of Ways 2 Save Consulting, Maurithi Infotech, 2nd floor, 17/4C, Hosur Road, Bommanahalli, Bangalore-68 SUMMARY: Mr.Abraham Lincoln gained unauthorized entry to our secured server Room at our office on the first floor on Saturday May 4th. He accomplished the following:
1) He stole an access key to the Server Room – he claims to have taken the access key from one of the employee’s cabin without permission.
2) He illegally gained accesss to our Server Room without obtaining any authorization from Senior Management or Head of IT.
3) He claims to have removed his own servers. However, two of our PC servers, plus four of our own laptops was found to be missing.
4) He failed to provide details of equipment being carted away to Mainstay Security.
5) Mainstay’s customized software that was on one of his servers has gone with his equipment.
Background Details:
Our company had rented out the ground floor area to Ways 2 Save consulting services (W2S) and they have been occupying our said premises on the ground floor since the month of June 2012 and they were conducting their business here. Mr.Abraham Lincoln is the most senior employee of W2S.
M/s.Ways 2 Save Consulting Services also has cheated Mainstay by not paying the monthly rent and other costs estimated to be around Rs.38,00,000/- and Mr.Lincoln and his employees are absconding from 04/05/2013.
We hereby kindly request you to take appropriate action against Abraham Lincoln for gaining unauthorized access to the Server Room and taking mainstay property.
Secured Server Room:
Mainstay Server Room is secured 24/7 and there are eight access keys, which areikept with technical and maintenance teams only. No one else except authorized personnel is allowed access to the Server Rooms on Ground and First Floors. There is always one IT or Maintenance person present to ensure proper functioning of all the equipment in the server rooms.
Details of items removed from server Room:
1. Six Number of Servers (ownership W2S) 2. Two Numbers of PC Servers (ownership Mainstay) containing information vital to W2S and other information proprietary to Mainstay.
a. Lenovo Think Centre A70, Serial: L918327 Rs.42,024/-
b. HP Compaq DX6100MT, Serial: SGH5100CYL, SGH5100CYG, SGHS100CYS, SGH5100CXX(N/F) Inv.#30067796/001 Rs.33,750/-
3. Customized software (ownership Mainstay) residing on W2S servers and the Source Code. This software was vital to efficient running of dialer – a most valuable tool for outbound processes.
a. VICI Dial, customized estimated value Rs.36,00,000/-
4. Four laptops used for programming, Data storage, Source Codes, backup of HR and accounting files and maintenance of Computer Hardware (Ownership of Mainstay) a. Lenovo Laptops, Serial #L3BHG6x, L3BHG7A, PO# MT/DW/PO/471/2009-10, each costing Rs.45,943/-. Total value Rs.183,772/-
b. HP NX 5000, Serial # CNU5120P15, Inv.#301067140/002, costing Rs.60,278/-
c. IBM Thinkpad, Serial and Invoice not found Photograph (taken at the time servers were received of the rack, showing servers in position and the empty rack after servers had been taken.
Mainstay has in the business of developing and offering call center services and the past 10 years, and Mainstay had intently worked to customize the VICI dial software to integrate CRM and other database management. The source code is invaluable and worth Crores. Mainstay, as a part of the services to W2S had installed these software code on to the Ways 2 Save servers and other Mainstay servers.
Damage:
In the process of removing the computers and furniture from the Ground floor, W2S has damaged our fittings and furniture, photographs are attached. Estimated value Rs.650,000/-
Entering and removal of property without authorization is, in our opinion, a criminal offense. We beg you to act on this immediately and we also thank you for your support.
This Statement has been prepared by Bipin Khimasia, CEO and Director of Mainstay Teleservices Pvt.Ltd., Bipinkumar Khimasia Mainstay Teleservices Pvt.Ltd., Attachments:Photos, Biiometric Record for IT, Maintenance and W2S, PO/Invoices.”
5. In State of West Bengal and other Vs. Swapan Kumar Guha and others (1982) 1 SCC 561 the Hon’ble Supreme Court has held as under:
“The legal position is well-settled. The legal position appears to be that if an offence is disclosed, the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. The observations of the Judicial Committee and the observations of this Court in the various decisions which I have earlier quoted, make this position abundantly clear. The prepositions enunciated by the Judicial Committee and this Court in the various decisions which I have earlier noted, are based on sound principles of justice. Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harrassment to a party, whose liberty and property may be put to jeopardy for nothing. The liberty and property of any individual are sacred and sacrosanct and the Court zealously guards them and protects them. An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interest of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the deteriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious deteriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed.”
6. With regard to the civil proceedings pending against the petitioner, petitioner has produced a copy of the plaints in OS No.893/2013, OS 7147/2013. OS 893/13 is filed for grant of permanent injunction restraining the defendant therein from interfering with peaceful occupation of the premises mentioned at Schedule-A whereas, OS 7147/13 is filed seeking a direction to the defendant therein to pay an amount of Rs.31,24,560/-. The allegations made in the complaint are not subject matter of the above civil suits. Since the allegations made in the complaint prima facie disclose the commission of cognizable offence, it is necessary to investigate into the said allegations.
7. As a result, I do not find any justifiable reason to quash the complaint and the FIR. Consequently, the petition is dismissed.
Sd/- JUDGE Sk/- CT-HR