TaxTMI 
TaxTMI 
2020 (4) TMI 766
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....ors. According to the prosecution, accused No.1 resigned from the Company on 10.9.2013 as Director - Solutions and accused No.2 resigned on 25.9.2013 as Director - Sales and Marketing. The accusations against petitioners are that during their term of employment under respondent No.2, they floated a Company by name, M/s. Sun Telematics Private Limited, contrary to the terms of employment and thereby committed the above offences. 4. Learned counsel appearing for petitioners would submit that the allegations made in the complaint do not attract the ingredients of the offences under Sections 406 and 408 read with Section 34 of IPC. There is no material to show that respondent No.2 had entrusted any properties to petitioners within the meaning of Section 405 of IPC. There is neither any allegations nor any material to show that the alleged properties entrusted to petitioners have been converted or misappropriated by them for their use. The accusations leveled against the petitioners are wholly baseless. The learned counsel further submitted that though petitioners incorporated the Company when they were in the services of respondent No.2, no business was transacted by the petitioners....
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....ihar and another. (ii) MANU/SC/1129/2011 - Thermax Ltd. and others v. K.M. Johny and others. (iii) MANU/DE/4768/2012 - Wolfgang Reim and others v. State and another. 8. Repelling the contentions, learned counsel appearing for respondent No.2 as well as learned Additional State Public Prosecutor appearing for respondent No.1 argued in support of the impugned action and contended that the material on record clearly disclose that petitioners herein incorporated a Company during the subsistence of the employment agreement. As per the conditions of the employment, petitioners had undertaken not to disclose or divulge confidential information to any outsiders and not to join any competitive customers or similar industry. Contrary to the said undertaking, petitioners have floated a Company and have acted in violation of the terms of the employment. The material produced on record indicate that petitioners made use of the very same software used by respondent No.2 and thereby a clear case of breach of trust punishable under Sections 406 and 408 of Indian Penal Code is made out. 9. Considered the submissions and perused the records. There is no dispute with re....
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....rce for the management of CIT's business or for the control and good conduct of CIT's employees. 1.7. I will at all times make best effort to achieve maximum customer satisfaction enough either direct interaction, supporting them or the issues or providing customized solutions as per the CIT's directions. 1.8. I will not disclose any marketing or customer information, cost information, business dealings, business strategy and product management information to any non CIT employees/directors during my tenure." 10. The accusation against petitioners is that in violation of the aforesaid terms and conditions, they floated a Company by name M/s. Sun Telematics Private Limited and thereby committed breach of trust. The records produced along with charge-sheet indicate that the said Company was incorporated on 28.5.2013. But there is no material to show that during their service under respondent No.2, petitioners had commenced any operations in the name of the Company floated by them. The documents produced before this Court indicate that Form 'C' - Registration Certificate of Establishment was obtained on 26.2.2014 and Value Added Tax Registration Certificate....
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....rs and not an intentional conversion of the properties entrusted to their use as contended by the prosecution. In this regard, respondent No.2 has already resorted to civil remedy by seeking damages from petitioners. In this context, it may be relevant to refer to the observations made by the Hon'ble Supreme Court in the case of ALPIC FINANCE LTD. v. P. SADASIVAN AND ANOTHER reported in (2001) 3 SCC 513: "7. In a few cases, the question arose whether a criminal prosecution could be permitted when the dispute between the parties is of predominantly civil nature and the appropriate remedy would be a civil suit. In one case reported in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre this Court held that if the allegations in the complaint are both of a civil wrong and a criminal offence, there would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. That was a case relating to a trust. There were three trustees including the settlor. A large house constituted part of the trust property. The respondent and the complainant were acting as Secretary and Manager of the Trust and the house owned by the ....