TaxTMI 
TaxTMI 
2015 (5) TMI 1184
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....e punishable under the provisions of the Indian Penal Code 1860 against the accused persons, for issue of process against them, and for their punishment in accordance with law. Six among the sixteen accused persons are corporate entities and the rest are natural persons. 2. The basic allegation of the complainant against the accused persons is in relation to use of copies of certain documents by them pertaining to the operations of the company in different legal proceedings instituted before this Court and the Company Law Board (CLB). The complaint's case is that these documents are confidential and meant to have been kept secret. Those documents, according to the complainant, were kept at the premises of the company, and were not meant to be accessed by the public at large. The accused persons, according to the petition of complaint, have committed the offences of theft and dishonest misappropriation of property and also dishonestly receiving stolen property by illegally obtaining the documents from the custody and control of the company. Before me, the petitioners are all the 16 persons arraigned as accused in the petition of complaint. On 4th October, 2010, the learned Ch....
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....over legality of a Will of said PDB dated 18 April 1999 which has given rise to a testamentary suit, which at present on the question of grant of letter of administration in respect of the estate forming the subject-matter of the said Will. Case of the propounder of the Will in that suit, which I am apprised, is pending in this Court, is that PDB had bequeathed her entire estate to one Rajendra Singh Lodha (since deceased), under the said Will. The Opposite Party No. 2 in this proceeding is the son of said Rajendra Singh Lodha. The complainant is one of the companies which belong to the M.P. Birla Group. The petitioner Nos. 1 to 5 and a trust, being Birla Education Trust represented by petitioner No. 6, had instituted a petition under Sections 397 and 398 of the Companies Act 1956 as shareholders of the company before the CLB alleging oppression and mismanagement in operation of the said company. This petition has been registered in the CLB as C.P. 1 of 2010. The petition before the CLB, as pleaded in the petition of complaint, has been filed through accused Nos. 6 to 9, who are petitioner Nos. 6 to 9 in this proceeding. Petitioner Nos. 12 to 16 in this petition have also institute....
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....allegation of the complainant is that the same is the copy of one of the original five sets, which was sent to one Bachh Raj Nahar, the Executive Director and Chief Executive Officer of the company. Before making the complaint, the complainant claims to have had conducted an internal enquiry to find out how these documents had reached the respective accused persons. The complainant, through its Advocate had written to the Advocate of the accused No. 1 to 6 (being the petitioner No. 1 to 6 in this petition) to disclose the source of documents and the complainant contends that it had received an evasive reply. It is also asserted by the complainant that in course of said proceedings also, originals of such documents were not disclosed and no disclosure was made as to how the accused persons received those documents. The complainant's claim is that accused Nos. 1 to 9 and 12 to 16 gained access to that report unauthorizedly and illegally with the aid of accused Nos. 10 and 11 (petitioner Nos. 10 and 11 in this proceeding). The accused No. 10 happens to be a company in charge of upkeep of the building in which the office of the complainant is situated, whereas the accused No. 11 is....
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....arsh Vardhan Lodha is a defendant in those suits and the Company has been informed of the institution and contents of the said suits and the said applications and the pleadings used therein by its Chairman, Harsh Vardhan Lodha. 9. The Company was shocked to find that amongst the documents produced by the accused Nos. 1 to 5 and M/s. Birla Education Trust in support of the CLB Petition were documents listed in the Schedule to the present complaint. The Company was further shocked to find that in support of the said applications, copies of confidential documents mentioned in item No. 1 of the Schedule were utilized and annexed to the said applications by the accused Nos. 12 to 16. The Company submits that the said documents are highly confidential internal records and correspondence of Company and its officers. These documents were at all time kept inside the registered office of the Company at the said premises. These documents and the information contained therein is the property of Company over which no unauthorized person has any right. 10. In support of the CLB Petition, accused No. 6 affirmed an affidavit on behalf of M/s. Birla Education Trust; accused No. 7 ....
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....n arguments on many overlapping points on behalf of the three sets of the petitioners on one side and the two opposite parties on the other. I shall accordingly refer to the submissions of the petitioners and those of the opposite parties compositely in this judgment, instead of dealing with submissions made on behalf of different petitioners and opposite parties in a piecemeal manner. 8. Main case of the petitioners is that the petition of complaint, as it has been framed does not disclose any offence and the complaint is mala fide, instituted with malicious intent with an ulterior motive for wreaking vengeance on the accused. On this count the principles enunciated by the Supreme Court in the case of State of Haryana Vs. Bhajan Lal (AIR 1992 SC 604) has been relied upon by the petitioners. Decisions of the Supreme Court in the cases of Shiva Nath Prasad & Anr. Vs. State of West Bengal [ (2006) 2 SCC 757], M. Mohan Vs. State [ (2011) 3 SCC 626] and A.K. Khosla Vs. T.S. Venkatesam [80 CC 81] have been referred to in support of their submission that the allegations made in the complaint are inherently improbable. In particular, my attention has been drawn to sub-paragraphs (1), (....
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.... express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 9. It is also the case of the petitioners that the complainant and the Opposite Party No. 2 are trying to expand the scope of the testamentary suit by initiating the criminal case and perpetuate their control over the estate of PDB. On the question of the instant proceeding being tainted with mala fide intention or having been instituted with ulterior motive, quashing of the proceeding has been prayed for referring to sub-paragraphs (5) and (7) of paragraph 108 of the judgment in the case of Bhajan Lal (supra). The petitioners have alleged that the estate of MPB and PDB are now estimated to....
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....t of the parties in that case, the complaint against the bank was quashed. 11. In all the aforesaid cases, criminal complaints were quashed having regard to the factual and legal perspective of the individual proceedings. In this case also the propositions of law advanced on behalf of the opposing parties are founded on the principles laid down by the Supreme Court in sub-paragraphs (1), (3), (5) and (7) of paragraph 108 of the report in the case of Bhajan Lal (supra). The charge of mala fide and vengeance attributed to the complainant are primarily based on allegations made in the proceedings pending in different fora, and the petitioners contend that the complaint case has been instituted with mala fide motive as counterblast to those proceedings. I have been informed by the learned counsel appearing for the parties that the core issues raised in those proceedings are yet to be finally determined. Thus, mala fide or malicious motive cannot be attributed to the complainant solely on the basis of allegations made against them in those proceedings. In this petition, it would also be impermissible to examine the claim of the petitioners on the aspect of unauthorized control of the....
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....rently improbable, that it is impossible for a person of reasonable prudence to conclude that such offences could be committed by the accused persons. In relation to some of the accused, it was argued that they are eminent persons and allegations of commission of offences of this nature ought to be rejected outright against them. But in the event the complaint discloses commission of offences, alleged to have been committed, which includes allegation of criminal conspiracy, in the facts of this case, I do not think the allegations against the petitioners can be held to be so outlandish that the same ought to be quashed on the grounds of being mala fide or absurd at this stage of the proceeding itself. The authorities cited on behalf of the petitioners on these two grounds, relatable to the principles incorporated in sub-paragraphs (5) and (7) of paragraph 108 of Bhajan Lal's case cannot be made applicable in the factual context of this petition. The petitioners' case would have to be tested in the light of the principles formulated in sub-paragraphs (1) and (3) of paragraph 108 of the report. 12. The other point on which substantial argument has been advanced on behalf o....
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....itted theft. (b) A puts a bait for dogs in his pocket, and thus induces Z's dog to follow it. Here, if A's intention be dishonestly to take the dog out of Z's possession without Z's consent. A has committed theft as soon as Z's dog has begun to follow A. (c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of the treasure. (d) A, being Z's servant, and entrusted by Z with the care of Z's plate, dishonestly runs away with the plate, without Z's consent. A has committed theft. (e) Z, going on a journey, entrusts his plate to A, the keeper of the warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z's possession. It could not therefore be taken out of Z's possession, and A has not committed theft, though he may have committed criminal breach of trust. (f) A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z's possession, and if A dishonestly removes ....
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....t is probable that A may conceive that Z's wife is authorised to give away alms. If this was A's impression, A has not committed theft. (o) A is the paramour of Z's wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has no authority from Z to give. If A takes the property dishonestly, he commits theft. (p) A, in good faith, believing property belonging to Z to be A's own property, takes that property out of B's possession. Here, as A does not take dishonestly, he does not commit theft." 13. First submission of the petitioners on this issue is mere reliance on copies of certain documents pertaining to a company in a Court of law to establish illegal acts on the part of that company would not constitute theft of those documents even if those documents are accessed and copies thereof are obtained illegally. The judgments relied on in support of this submission are Ram Ratan Vs. The State of Bihar & Anr. (AIR 1965 SC 926), Aradhun Mundul Vs. Myan Khan Takadgeer & Anr. [(1875) XXIV CWR 07], Jhaman Lal & Ors. Vs. The Emperor [10 CWN CCXXVIII] and Dayal & Ors. Vs. Emperor (A. 1943 Oudh 280)....
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....nt or an F.I.R. at the threshold in exercise of jurisdiction conferred under Section 482 of the 1973 Code. The authority, in essence, has been reconfirmed in the case of Bhajan Lal (supra) decision. Same principle of law has been enunciated in the judgments of the Supreme Court in the cases of Municipal Corporation of Delhi Vs. Ram Kishan Rohatgi [(1983) 1 SCC 1], Bhaskar Lal Sharma Vs. Monica [ (2014) 3 SCC 383]. In the case of Shiva Nath Prasad (supra), which proceeding was also an offshoot of the core dispute giving rise to the subject-complaint, the Supreme Court declined to interfere with a judgment of this Court rejecting the plea of quashing of a complaint case alleging commission of offences under Sections 406, 420, 417 and 201 of the I.P.C. on the ground of mala fide. On behalf of the opposite parties, the case of State Vs. Manmohan ( A. 1986 SC 1652) was also relied upon. This was a case in which the High Court had quashed the charge framed by the learned Magistrate in relation to offence for contravention of Section 4(1) of the Sugar (Packing and Marking) Order, 1970, punishable under Section 3 read with Section 7 of the Essential Commodities Act, 1955. The Supreme Court....
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....gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property." 17. Before I enter into further analysis of these terms in the light of authorities cited by the learned counsel for the parties, I shall deal with two peripheral points which have also been argued by the learned counsel for the opposing parties. On behalf of the petitioners, it was submitted that five accused persons were corporations, and they could not be accused of committing the offence of theft. It was also submitted that the petitioner Nos. 6 to 9 are well-known persons in the corporate world, and it would be absurd to believe that they could enter into the premises of the Opposite Party No. 2 to remove any property. But having regard to the ratio of the decision of the Supreme Court of India in the case of Iridium India Telecom Ltd. Vs. Motorola Incorporated & Ors. [(2011) 1 SCC 74], I do not think at this stage the complaint can be quashed as against the accused persons who are incorporated companies. It is not an absol....
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.... the complainant had lost intention to possess the subject documents. 19. Substantial argument was also advanced on behalf of the petitioners that offence of conspiracy was not made out in the complaint petition and different accused persons with distinct allegations against them regarding removal of different documents from the lawful authority of the company were arraigned together in a single petition of complaint. The substance of the complaint in relation to conspiracy has been outlined in paragraph 21 of the complaint petition, which has been reproduced in the earlier part of this judgment. 20. But before I deal with the submissions advanced on behalf of the parties on criminal conspiracy, I shall examine the primary question involved in this proceeding - whether the petition of complaint on the face of it discloses commission of offence of theft or dishonest misappropriation of property or not. 21. The first question that needs to be addressed for this purpose is as to whether documents come within the ambit of the expression 'movable property' or not. In the I.P.C., these two terms have been separately defined, in Sections 24 and 29 respectively. The defini....
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....Section 411 of the I.P.C. In this regard, illustration (a) of Section 114 of the Evidence Act, 1872 was referred to, for persuading this Court to raise this presumption. The said provision, along with the illustration referred to, provides:- "114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume- (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;" 23. The petitioners' case in this petition is founded on two main planks. First is that use of copies of certain documents for assistance of the Court to expose fraudulent activities and breach of trust by the holder of the property cannot be dishonest intention. The second plank of the petitioners' case is, in substance, corollary to the first - and that is using copies of documents do ....
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.... was not contended that the owners were in any way deprived of them, except temporarily whilst they remained in the pound__the last words of the clause referred to (Section 23), "to which the person losing it is legally entitled," show clearly what is meant by the words "wrongful loss" as applied to the owners of the cattle." 25. Similar view was expressed in Dayal Vs. Emperor (supra), dealing with the allegations of theft of cattle, in a similar situation where seized cattle were taken to a pound:- "It has been suggested that the applicants were guilty of the offence of theft. I do not agree. The essential element of taking property dishonestly, as contemplated by S. 378, Penal code, is lacking in this case. Section 24 says that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'. Obviously, there was no wrongful gain to the applicants in the driving of the cattle to the pound, nor can it be said that any wrongful loss was caused to the owners of the cattle even though they would have had to incur expense in order to get the cattle released. It was held in 24 ....
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.... wrongful loss to another person. In the case of illegal seizures and impounding of cattle, the person seizing the cattle does not gain anything. He simply takes the cattle to the pound. He does not use them for his purpose. He, in fact, exercises no greater dominion over those cattle than that of being in their custody on their journey to the pound. It is said that it causes wrongful loss to the owner of the cattle inasmuch as he keeps the owner out of possession of the cattle as he was wrongfully deprived; of the property for the time being, it being not necessary that the deprivation of property be of a permanent character. We do not think that in such circumstances, the owner of the cattle can be said to be deprived of his property. The person seizing the cattle can act in either of these three ways. He can keep them himself. This may, in certain circumstances, make him guilty of theft. He can let them loose after taking them out of the field. This action will not remove the danger of the cattle trespassing again on the land. He can take them to the pound. In so doing he not only acts as directed by the Act but also in the interests of both himself and the owner of the cattle. ....
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....athered by the consequences of his act except in those cases where it is found that the avowed intention was a mere cloak for some other real intention which is then to be determined in the same way as it is determined in cases of non-expressed intention. (27) In view of the various considerations mentioned above, we are of opinion that when a person seizes cattle on the ground that they were trespassing on his land and causing damage to his crop or produce and gives out that he was taking them to the pound, he commits no offence of theft however mistaken he may be about his right to that land or crop. The remedy of the owner of the cattle so seized is to take action under S. 20 of the Act. He has no right to use force to rescue the cattle so seized. (28) We may now briefly consider the cases referred to in support of the contention that illegal seizure of cattle amounts to theft. These cases were not of the seizure and impounding of cattle in, the purported exercise of the powers under s. 10 of the Act. They are: Queen v. Preonath Banerjee; 5 Suth WR 68 (Cr); Wazuddi v. Rahimuddi, 18 Cri LJ 849: (AIR 1918 Cal 701 (2); Abdul Khaliq v. Emperor, AIR 1941 Lah 221; Pa....
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....s debtor without the latter's consent in order to coerce him to pay his debt. The Full Bench of this Court observed:- "5. We think that it is not necessary to constitute the offence of theft that there should be shown on the part of the accused an intention (to use the words at page 676 ante) "to gain the thing moved for the use of the gainer"; but that it is enough to show an intention to gain possession of it for a time for a temporary purpose we think the proposition stated in Mayne's Penal Code (14th Ed.) at page 340 is correct. It is as follows: "It is sufficient to show an intention to take dishonestly the property out of any person's possession without his consent, and that it was moved for that purpose. If the dishonest intention, the absence of consent, and the moving are established, the offence will be complete, however temporary may have been the proposed retention." 28. This view was also accepted by the Patna High Court in the case of Budhan Singh Vs. State (AIR 1960 Pat 518). In Lakshminarayana Vs. Appa Rao (AIR 1959 AP 530), the Andhra Pradesh High Court explained the implication of the expressions "wrongful gain" and "wrongful loss" in the f....
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....e under a bona fide claim to the press as the rightful owners and as such the accused could not be held to have committed any offence in this case. There is, in my opinion, no merit in this contention. At the outset, it must be noticed that the removal could not have been bona fide as under law the accused could not lawfully keep the press in their possession at the time of its removal having regard to the provisions of the Press and Registration of Books Act extracted above. Further, to a charge of theft, the plea that the property was removed under a bona fide claim of right would not avail. For example, a person who bona fide believes that the fountain pen on his neighbor's desk is his has no right in law to trespass into the neighbour's house & snatch away the pen without the latter's consent. The offence or theft is essentially against the possession of another of the movable property involved. The accused are thus clearly guilty of the offence charged against them and the learned Sessions Judge was completely wrong in allowing himself to be digressed by considerations which are totally inadmissible and irrelevant in the disposal of the case." 29. Two j....
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....arrower connotation, and hence ought to be covered by the same interpretation. In my opinion, "movable property" should be construed in a similar manner to include documents. In the case of Pyare Lal Bhargava (supra), subject of theft was a file. 31. In the series of cases cited by the petitioners relating to seizing of cattle, it was held that taking the cattle to the pound, even if initial seizure was illegal, did not constitute the offence of theft. Since in this proceeding primary thrust of the argument of the petitioners is that they did not act dishonestly by obtaining copies of various documents of the complainant for establishing certain misdeeds of the company before the legal forum, I shall examine the case of the petitioners from this perspective now. It is also to be noted that the authorities cited by the respective parties relate to judgments delivered in case where trial was concluded, except the case of V.T. Umale & Ors. (supra), and in this proceeding, the petitioners have come after issue of process, with prayer for quashing the petition of complaint. Thus, it has to be decided as to whether on the face of statements made in the petition, it can be held that th....
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....ovable property like gold jewellery, which has market driven value. At the same time, I am not inclined to come to a decision as to whether presumption of commission offences can be made against the petitioners having regard to the provisions of Section 114 of the Evidence Act. This is not the stage for determining that question. 34. Response of the Opposite parties is that even temporary dispossession of property can give rise to the offences of theft and misappropriation. On this point, the decisions of the Supreme Court in the cases of K.N. Mehra (supra), Pyare Lal Bhargava (supra) and V.T. Umale (supra) were referred to. Elias & Ors. Vs. Pasmore & Ors. [(1934) 2 K.B. 164] was also referred to on behalf of the Opposite parties to contend that initial entry may be lawful in a particular situation, but the same could become illegal later on, if any unauthorised act is committed upon entry. As a proposition of law, I accept the principle laid down in Elias (supra), but in this judgment I do not consider it necessary to apply this principle. In the case of K.N. Mehra (supra), two cadets of the Indian Air force had flown a Harvard H.T. aircraft in breach of all regulations and lan....
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....ion of property by the person wrongfully gaining or a temporary "keeping out" of property from the person legally entitled. This is clearly brought out in illustration (1) to s. 378 of the Indian Penal Code and is uniformly recognized by various decisions of the High Courts which point out that in this respect "theft" under the Indian Penal Code differs from "larceny" in English law which contemplated permanent gain or loss. (See Queen-Empress V. Sri Churn Chungo I.L.R. [1895] Cal. 1017, and Queen-Empress v. Nagappa I.L.R. [1890] Bom. 344. In the present case there can be no reasonable doubt that the taking out of the Harvard aircraft by the appellant for the unauthorised flight has in fact given the appellant the temporary use of the aircraft for his own purpose and has temporarily deprived the owner of the aircraft, viz., the Government, of its legitimate use for its purposes, i.e., the use of this Harvard aircraft for the Indian Air Force Squadron that day. Such use being unauthorised and against all the regulations of aircraft-flying was clearly a gain or loss by unlawful means. Further, the unlawful aspect is emphasised by the fact that it was for flight to a place in Pakistan....
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....losed in the petition of complaint which would make the complaint case unsustainable in law. The petitioners on this count sought to argue that if certain documents are obtained in an unauthorised manner to establish certain illegal acts on the basis of such documents, that would not constitute theft. In the cases of Jhaman Lal (supra) and Aradhun Mundu (supra), the cattle were taken to the pound, which happens to be the legitimate destination for stray cattle or cattle destroying crops. The Supreme Court, in the case of Ram Ratan (supra), examined the question in greater detail and found that the provisions relating to illegal seizure of cattle were covered by the Cattle Trespass Act, 1871, and by taking the cattle to the pound, the accused only acted as directed by the 1871 Act. The provisions of the 1871 Act also provided for payment of compensation, and the owner of the cattle could recover the loss. The position, however, would be different in respect of movable property in respect of which allegation is of taking them without the consent of the owner and using copies of the same in a legal proceeding, with a further allegation that the property in question is missing from the....
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....e conflict on this count. The term document denotes:- (i) Any matter expressed or described upon any substance by means of letters, figures, or marks or by more than one of these means. (ii) Which matter, expressed or described, would be intended to be used, or may be used, as evidence of that matter. Thus, to come within the ambit of this expression there must be recordal of any matter on any substance by means of letters, figures or marks, which could be used as evidence of such matter. If I refer to the internal audit report, which is one of the documents the theft of which has been alleged, the opinion of the auditor would be the matter. When such matter is inscribed on paper, then such matter only upon being inscribed, in this case on paper, would assume the character of document. If that document is taken away by somebody dishonestly without the consent of its owner or lawful custodian, that would constitute theft. But what would be the consequence if someone lifts the content of the document, i.e. the matter-rendered in letters, figures or marks from the substance, being paper in this case, without taking the document itself? Would such an act amount to ....
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....t, ought to have linear characteristic, implying that if such property is removed, the original owner would lose possession of it. This characteristic of movable property would have to be distinguished from intellectual property, of whose infringement can be committed by mere reproduction, without affecting possession of the property with its owner or lawful custodian. Since one of the basic ingredients of theft is "taking" of the property, meaning physical acquisition after removal, theft has to relate to traditional form of property having linear feature. Legislatures across the world have developed separate legal regime in respect of intellectual property-under which copying constitute the offence. 42. The complainant's case, however, is that the accused persons had removed the documents, and after making copies of the same, the documents in original were returned. The allegations of commission of the offences is anchored on such temporary removal. Petitioners on the other hand contend that such allegations are absurd, but as I have already observed, in this case, I shall be confining my scrutiny to the question as to whether commission of such offence has been made out o....
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....rrespondence in the file respectively, in this case, with regard to this set of documents, subject of taking were the letters, figures and marks in a special arrangement, which were inscribed on paper. These letters, figures and marks independently, once detached or extricated from the papers on which they are inscribed, do not answer the description of movable property under the I.P.C.. Such letters, figures and marks retain the characteristic of movable property only when they remain etched on paper, or any other substance. Even if there has been temporary removal of the documents, subject of taking was the information contained in them and in such a situation removal of the documents was solely for the purpose of obtaining the information. This would be akin to lifting a flower from a vase, in a situation where the vase may belong to a person but the flower is free for taking. Lifting of the vase in such a situation for taking the flower would not be the subject of taking, but incidental to taking of flowers, the latter being without any proprietary trappings. In the given context, removal of the documents, if at all, would be too trivial act to constitute any offence. Ordinaril....
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....or door or a safe to obtain any information may result in trespass or house breaking. In most of these cases, possibly the acts in gaining access to information or undertaking some illegal act with the information subsequent to obtaining the same would give rise to an independent criminal offence, but possibly not the act of obtaining information per se. Offence would lie in acts subsequent to obtaining information. In this case, with regard to documents itemised against serial Nos. 1 to 28, the consequence of obtaining information has been using such information in a Court of Law. That act, by itself is not an offence. In fact, common law has viewed evidence of this nature with a degree of indulgence, since the decision of R. Vs. Leatham [(1861) 8 Cox CC 498], making illegally obtained evidence admissible, barring certain limitations. 46. Since I have dealt with certain hypothetical situations raised by the Opposite parties while resisting this petition, I would also like to express in this judgment certain thoughts which crossed my mind while dealing with the subject controversy. I presume it is common experience for Judges, while dealing with a particular case, to introspect ....
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....o offence under Section 403 of the I.P.C. relates to misappropriation or conversion of any movable property. As regards the documents which are still in custody of the complainant or its officers or auditors, the information per se would not come within the term "movable property" and with regard to these documents, in my opinion no offence under Section 403 of the I.P.C. can be said to have been committed as subject of offence under that head is also "movable property". There cannot be misappropriation or conversion of something which is not movable property. Similarly to constitute the offence alleged to have been committed under Section 411 of the I.P.C., again the documents ought to be segregated as in the event there is no movable property transferred by theft, there cannot be any dishonest receiving or retention of any stolen property. But so far the documents in respect of which allegation is that they are missing from their ordinary places of storage, petition of complaint under Sections 403 and 411 of the I.P.C. cannot be held to be not maintainable. 49. There is also allegation of criminal conspiracy against the petitioners. On this point it was argued on behalf of the....
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....n Chapter VA of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences, may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two-of the conspirators without the knowledge of the others it will not affect the culpabilit....
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....used in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. Two judgments of this Court, J. Thjwart & Ors. Vs. Indrani Mukherjee [1990 C. GLR (Cal) 1] and Kedar Nath Goenka Vs. Superintendent of Central Excise & Ors. [1979 Cri LJ 421] have been cited in support of the petitioners' case that basic facts should be stated in a complaint for taking cognizance. Other authorities have also been relied upon in support of the same proposition, but I do not consider it necessary to refer to all those decisions, as this principle is well-established. Argument has also been advanced that the learned Magistrate did not follow the proper procedure in issuing the process as he did not satisfy himself as regards involvement of the individual accused persons in commission of the alleged offences. Further case of the accused persons is that the witnesses also did not make specific allegations against commission of specific acts by the accused persons. 53. Learned counsel for the opposite party No. 1, on the other hand submitted that the Magistrate has followed the regular course and there was no error committed in issuing the process. On this....
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....und that some of the accused persons were residents of places outside the territorial jurisdiction of the Court in which the complaint was instituted. He decided to make further enquiry under Section 202 of the 1973 Code. In his examination, P.B. Dinesh alleged involvement of some of the accused persons and stated that they had procured the documents stolen from the complainant's custody. On completion of such examination of the second witness process was issued. I do not find any fundamental error on the part of the learned Magistrate on having followed this procedure. Cognizance was taken twice in the case, but that flaw at the worst would be a procedural irregularity. It is apparent from the orders of the learned Metropolitan Magistrate, 10th Court dated 6th October 2010 and 8th October 2010 that along with the affidavit, the learned Magistrate perused the documents of the complainant and on consideration of all these factors, he found sufficient ground to issue process against the sixteen accused persons. In that initial deposition, though the two witnesses did not repeat the entire set of allegations made against all the accused persons individually that factor by itself o....
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.... 56. In such circumstances, I decline to interfere with the order by which cognizance has been taken by the learned Magistrate, as the petition of complaint contains composite allegations and part of the petition discloses commission of offences alleged to have been committed. But so far as issue of process, in my opinion the learned Magistrate will have to examine the matter afresh having regard to my decision that in respect of the documents, the originals of which are still retained by their lawful custodians, the allegations of theft or dishonest misappropriation of property as also dishonestly receiving stolen property cannot stand. Learned Magistrate will have to re-examine, having regard to my decision, as to against which of the accused persons process should be issued and against whom no further step ought to be taken. Learned Magistrate is vested with the power and jurisdiction to pass orders in that regard, and it would be improper on my part to assume jurisdiction and decide that question. 57. I also find from the petition of complaint that the accused persons are also segregable - the unauthorised use of two sets of documents have been attributed to two separate gr....