I am of the considered view that petitioner is not entitled to concession of pre-arrest bail. Allegations levelled are serious. Petitioner was amongst the top management of the company. He was privy to all confidential information. In such capacity, he was in a position to harm the interest of the complainant company. Allegedly, he developed a dishonest intention. Thus for promoting his own business interests, he used confidential information available with him and parted with same. The complainant company got information only through a client in USA when said client received an identical proposal from CIBC, Gurgaon as was sent by complainant company. There are certain documents on record to show petitioner's interest in CIBC. Investigating agency seeks custodial interrogation of the petitioner to unravel entire modus CRM-M-4365 of 2012 7 operandi. Reliance placed by the petitioner on the order passed in Satinderjit Singh's case (supra) involving similar offences, is misplaced. Facts of that case were totally different. Moreover, said order merely conferred the concession of pre-arrest bail. It does not lay down any law. On the other hand, in Abhinav Gupta's case (supra) relied upon by counsel for the complainant, allegations were under Section 66 of the Act and 420, 406 IPC. Complaint contained similar allegations i.e. theft of confidential information and trade secrets of the company, even confidential drawings and designs. The accused were using complainant company's computer system and computer network and parted with trade secrets and information, confidential in nature. This court while declining bail, observed that to elicit how confidential information was downloaded and leaked by the accused, custodial interrogation was required. Plea of parity with accused Saurabh Gupta is also misconceived. Apart from the fact that his role is different, complainant has moved an application for cancellation of his bail, which is still pending. In the instant case, this court is of the opinion that the prayer of the petitioner for pre-arrest bail is without any merit. The same is hereby rejected.
In this petition under Section 438 Cr.P.C., petitioner has sought pre-arrest bail in a case registered against him under Sections 43, 66, 66B and 72A of the Information Technology Act, 2000 and Sections 420, 406, 120 IPC at Police Station Udyog Bihar, Gurgaon, District Gurgaon, vide FIR No.58 dated 9th April, 2011.
Learned counsel for the parties have addressed the court at length.
Mr. Aggarwal, learned senior counsel representing the petitioner mainly submitted before the court that offences alleged are not of such nature which require custodial interrogation of petitioner. According to him, Information Technology Act, 2000 contains necessary provisions for dealing with offences of this kind. The said Act envisages payment of damages and penalty. Punishment being less than three years, same are bailable. According to him, the question of CRM-M-4365 of 2012 2 cheating or breach of trust does not arise as petitioner was entitled to use the knowledge acquired by him in the manner he liked. He has placed reliance on order passed by this court in Satinderjit Singh Vs. State of Punjab, CRM-M-20966 of 2010, decided on February 28, 2011. He emphasized that a co-accused Saurabh Gupta has been granted a similar concession by the court below, besides co-accused Yajana Prakash was allowed to go abroad during pendency of investigation. Thus, investigating agency does not require the petitioner for custodial interrogation. He urged that information, which the petitioner is alleged to have parted with, was in fact in public domain as the same was on the website of the company. Only because the petitioner was offering competition to complainant company, false allegations have been levelled against him.
Prayer for pre-arrest bail was vehemently opposed by learned State counsel. Referring to the affidavit filed by Inspector Gaurav, Economic Offences Wing, Gurgaon, he sought permission of this court for arrest and custodial interrogation of the petitioner. According to him, investigating agency had gathered incriminating evidence which duly establishes conspiracy hatched by the petitioner and other ex-employees of M/s Tecnova India Pvt. Ltd. for diverting business of said company to rival competing entities such as Catalise Consulting Private Limited and Concept International Business Consulting Limited. According to him, accused established a nexus with such companies, thus committed fraud and breach of trust. He submitted that during course of investigation it was found that lot of CRM-M-4365 of 2012 3 data had been transferred by accused from official email ID to their personal email ID. They had thereafter revealed the same to other companies thereby causing wrongful gain to themselves and wrongful loss to M/s Tecnova India Pvt. Ltd. According to him, there are other aspects of the crime which need to be investigated to find the exact modus operandi. Though petitioner had appeared before the investigating agency but had not disclosed vital information. For this reason custodial interrogation is required.
Learned counsel for the complainant also intervened and referred to the documents filed by way of a separate application (CRM- M-13968 of 2012). According to him petitioner, in whom complainant company had reposed confidence, had committed theft of important data. He was entrusted with confidential and privileged information. By revealing the same to a rival company, he had committed breach of trust. He being the President of Global Market Research Division, had excess to highly confidential information such as business module, client data base and strategies of the company. He, however, misappropriated confidential proprietary information for diversion of business to entities like "CATALISE" and "CIBC". This leakage of information had caused huge loss to the complainant company. According to him, while working with the company, he entered into a memorandum of understanding with Concept Management Consulting Limited and became a promoter thereof with his own share. This MOU was entered into on 29th January, 2010. Petitioner resigned from complainant company in July, 2010. It was decided that a new company CRM-M-4365 of 2012 4 would be established in which petitioner and co-accused would have substantial share. He referred to various email records to contend that accused acted in connivance with each other to defraud complainant M/s Tecnova India Pvt. Ltd. He has particularly drawn the attention of the court to an email sent by petitioner to Ritesh Dudeja on 30th May, 2010 to highlight role of the petitioner in commission of crime. According to him, the accused had a dishonest intention from very inception. Keeping in view the gravity of allegations, they are not entitled to concession of pre-arrest bail. He has also placed reliance on judgment of this court in Abhinav Gupta vs. State of Haryana, 2008 Crl. L.J. 4536.
I have heard learned counsel for the parties and given careful thought to the facts of the case.
A detailed FIR was lodged by the complainant company M/s Tecnova India Pvt. Ltd. It appears that investigation was thereafter handed over to Economic Offences Wing of Gurgaon Police. The investigating agency looked into various aspects of the complaint and conducted certain raids on the companies named in the FIR. After collecting sufficient material, they have sought custodial interrogation of the petitioner. A perusal of the FIR shows that the complainant alleged that it was defrauded by adopting four modus operandi: (a) Formation of company and carrying competing business by diverting business of the company during the course of employment.
(b) Passing on confidential proprietary information of the complainant company to its competitor and also formation of a joint venture company and diverting business of the CRM-M-4365 of 2012 5 company.
(c) Passing confidential information to competitors and also transferring business to competitors KMG Infotech. (d) Passing confidential client information to clients competitors Caparo.
To elaborate the aforesaid modus operandi, details have also been given. The same are, however, not necessary to be referred to at length for the purpose of deciding this pre-arrest bail petition. Particular reference may, however, be made to role assigned to petitioner. According to allegations, he alongwith co-accused, had deep and perversive control over affairs of the company. Being on a high position, he was privy to all confidential data. He was responsible for sale and operations of GMR Division. Being in that position, he was in constant touch with company's clients and had excess to client data base and other confidential information. He had control and domain over the case studies pertaining to company's clients. However, in February, 2011, the complainant company was informed by one of its clients in U.S. that it had received proposal identical to that sent by complainant company from an other company known as CIBC Gurgaon. On receiving this information, the complainant company resorted to an internal audit to find out whether there had been leakage or theft of data. It was found that co-accused Yajana Prakash had synchronized his personal hotmail account with outlook in the company's laptop. A perusal of same showed unholy nexus with certain ex-employees, who had been conspiring against the company and had parted with trade secrets and proprietary confidential information including project CRM-M-4365 of 2012 6 documents, case studies etc. It was also revealed that on the basis of data, so misappropriated, business of the company had been diverted and profits were siphoned away. Petitioner had played active role in all this. His action had caused huge loss to the complainant company. According to stand of the investigating agency, custodial interrogation of the petitioner is required as he is not likely to cooperate, if armed with a protective order. According to affidavit filed by the investigating agency, it had recovered share holding agreement dated 13th April, 2010 in one of emails. It reveals active role of the petitioner. It had also been found that petitioner had exchanged number of emails with co-accused Ritesh Dudeja to discuss how to add more clientage to the new entity i.e. CIBC and to deprive complainant company of client base. Keeping in view entire facts and circumstances of the case, I am of the considered view that petitioner is not entitled to concession of pre-arrest bail. Allegations levelled are serious. Petitioner was amongst the top management of the company. He was privy to all confidential information. In such capacity, he was in a position to harm the interest of the complainant company. Allegedly, he developed a dishonest intention. Thus for promoting his own business interests, he used confidential information available with him and parted with same. The complainant company got information only through a client in USA when said client received an identical proposal from CIBC, Gurgaon as was sent by complainant company. There are certain documents on record to show petitioner's interest in CIBC. Investigating agency seeks custodial interrogation of the petitioner to unravel entire modus CRM-M-4365 of 2012 7 operandi. Reliance placed by the petitioner on the order passed in Satinderjit Singh's case (supra) involving similar offences, is misplaced. Facts of that case were totally different. Moreover, said order merely conferred the concession of pre-arrest bail. It does not lay down any law. On the other hand, in Abhinav Gupta's case (supra) relied upon by counsel for the complainant, allegations were under Section 66 of the Act and 420, 406 IPC. Complaint contained similar allegations i.e. theft of confidential information and trade secrets of the company, even confidential drawings and designs. The accused were using complainant company's computer system and computer network and parted with trade secrets and information, confidential in nature. This court while declining bail, observed that to elicit how confidential information was downloaded and leaked by the accused, custodial interrogation was required. Plea of parity with accused Saurabh Gupta is also misconceived. Apart from the fact that his role is different, complainant has moved an application for cancellation of his bail, which is still pending. In the instant case, this court is of the opinion that the prayer of the petitioner for pre-arrest bail is without any merit. The same is hereby rejected.
Dismissed.
(RAJAN GUPTA)
Print Page
Punjab-Haryana High Court
Sujay Sen Gupta vs State Of Haryana on 6 March, 2012
CORAM: HON'BLE MR. JUSTICE RAJAN GUPTAIn this petition under Section 438 Cr.P.C., petitioner has sought pre-arrest bail in a case registered against him under Sections 43, 66, 66B and 72A of the Information Technology Act, 2000 and Sections 420, 406, 120 IPC at Police Station Udyog Bihar, Gurgaon, District Gurgaon, vide FIR No.58 dated 9th April, 2011.
Learned counsel for the parties have addressed the court at length.
Mr. Aggarwal, learned senior counsel representing the petitioner mainly submitted before the court that offences alleged are not of such nature which require custodial interrogation of petitioner. According to him, Information Technology Act, 2000 contains necessary provisions for dealing with offences of this kind. The said Act envisages payment of damages and penalty. Punishment being less than three years, same are bailable. According to him, the question of CRM-M-4365 of 2012 2 cheating or breach of trust does not arise as petitioner was entitled to use the knowledge acquired by him in the manner he liked. He has placed reliance on order passed by this court in Satinderjit Singh Vs. State of Punjab, CRM-M-20966 of 2010, decided on February 28, 2011. He emphasized that a co-accused Saurabh Gupta has been granted a similar concession by the court below, besides co-accused Yajana Prakash was allowed to go abroad during pendency of investigation. Thus, investigating agency does not require the petitioner for custodial interrogation. He urged that information, which the petitioner is alleged to have parted with, was in fact in public domain as the same was on the website of the company. Only because the petitioner was offering competition to complainant company, false allegations have been levelled against him.
Prayer for pre-arrest bail was vehemently opposed by learned State counsel. Referring to the affidavit filed by Inspector Gaurav, Economic Offences Wing, Gurgaon, he sought permission of this court for arrest and custodial interrogation of the petitioner. According to him, investigating agency had gathered incriminating evidence which duly establishes conspiracy hatched by the petitioner and other ex-employees of M/s Tecnova India Pvt. Ltd. for diverting business of said company to rival competing entities such as Catalise Consulting Private Limited and Concept International Business Consulting Limited. According to him, accused established a nexus with such companies, thus committed fraud and breach of trust. He submitted that during course of investigation it was found that lot of CRM-M-4365 of 2012 3 data had been transferred by accused from official email ID to their personal email ID. They had thereafter revealed the same to other companies thereby causing wrongful gain to themselves and wrongful loss to M/s Tecnova India Pvt. Ltd. According to him, there are other aspects of the crime which need to be investigated to find the exact modus operandi. Though petitioner had appeared before the investigating agency but had not disclosed vital information. For this reason custodial interrogation is required.
Learned counsel for the complainant also intervened and referred to the documents filed by way of a separate application (CRM- M-13968 of 2012). According to him petitioner, in whom complainant company had reposed confidence, had committed theft of important data. He was entrusted with confidential and privileged information. By revealing the same to a rival company, he had committed breach of trust. He being the President of Global Market Research Division, had excess to highly confidential information such as business module, client data base and strategies of the company. He, however, misappropriated confidential proprietary information for diversion of business to entities like "CATALISE" and "CIBC". This leakage of information had caused huge loss to the complainant company. According to him, while working with the company, he entered into a memorandum of understanding with Concept Management Consulting Limited and became a promoter thereof with his own share. This MOU was entered into on 29th January, 2010. Petitioner resigned from complainant company in July, 2010. It was decided that a new company CRM-M-4365 of 2012 4 would be established in which petitioner and co-accused would have substantial share. He referred to various email records to contend that accused acted in connivance with each other to defraud complainant M/s Tecnova India Pvt. Ltd. He has particularly drawn the attention of the court to an email sent by petitioner to Ritesh Dudeja on 30th May, 2010 to highlight role of the petitioner in commission of crime. According to him, the accused had a dishonest intention from very inception. Keeping in view the gravity of allegations, they are not entitled to concession of pre-arrest bail. He has also placed reliance on judgment of this court in Abhinav Gupta vs. State of Haryana, 2008 Crl. L.J. 4536.
I have heard learned counsel for the parties and given careful thought to the facts of the case.
A detailed FIR was lodged by the complainant company M/s Tecnova India Pvt. Ltd. It appears that investigation was thereafter handed over to Economic Offences Wing of Gurgaon Police. The investigating agency looked into various aspects of the complaint and conducted certain raids on the companies named in the FIR. After collecting sufficient material, they have sought custodial interrogation of the petitioner. A perusal of the FIR shows that the complainant alleged that it was defrauded by adopting four modus operandi: (a) Formation of company and carrying competing business by diverting business of the company during the course of employment.
(b) Passing on confidential proprietary information of the complainant company to its competitor and also formation of a joint venture company and diverting business of the CRM-M-4365 of 2012 5 company.
(c) Passing confidential information to competitors and also transferring business to competitors KMG Infotech. (d) Passing confidential client information to clients competitors Caparo.
To elaborate the aforesaid modus operandi, details have also been given. The same are, however, not necessary to be referred to at length for the purpose of deciding this pre-arrest bail petition. Particular reference may, however, be made to role assigned to petitioner. According to allegations, he alongwith co-accused, had deep and perversive control over affairs of the company. Being on a high position, he was privy to all confidential data. He was responsible for sale and operations of GMR Division. Being in that position, he was in constant touch with company's clients and had excess to client data base and other confidential information. He had control and domain over the case studies pertaining to company's clients. However, in February, 2011, the complainant company was informed by one of its clients in U.S. that it had received proposal identical to that sent by complainant company from an other company known as CIBC Gurgaon. On receiving this information, the complainant company resorted to an internal audit to find out whether there had been leakage or theft of data. It was found that co-accused Yajana Prakash had synchronized his personal hotmail account with outlook in the company's laptop. A perusal of same showed unholy nexus with certain ex-employees, who had been conspiring against the company and had parted with trade secrets and proprietary confidential information including project CRM-M-4365 of 2012 6 documents, case studies etc. It was also revealed that on the basis of data, so misappropriated, business of the company had been diverted and profits were siphoned away. Petitioner had played active role in all this. His action had caused huge loss to the complainant company. According to stand of the investigating agency, custodial interrogation of the petitioner is required as he is not likely to cooperate, if armed with a protective order. According to affidavit filed by the investigating agency, it had recovered share holding agreement dated 13th April, 2010 in one of emails. It reveals active role of the petitioner. It had also been found that petitioner had exchanged number of emails with co-accused Ritesh Dudeja to discuss how to add more clientage to the new entity i.e. CIBC and to deprive complainant company of client base. Keeping in view entire facts and circumstances of the case, I am of the considered view that petitioner is not entitled to concession of pre-arrest bail. Allegations levelled are serious. Petitioner was amongst the top management of the company. He was privy to all confidential information. In such capacity, he was in a position to harm the interest of the complainant company. Allegedly, he developed a dishonest intention. Thus for promoting his own business interests, he used confidential information available with him and parted with same. The complainant company got information only through a client in USA when said client received an identical proposal from CIBC, Gurgaon as was sent by complainant company. There are certain documents on record to show petitioner's interest in CIBC. Investigating agency seeks custodial interrogation of the petitioner to unravel entire modus CRM-M-4365 of 2012 7 operandi. Reliance placed by the petitioner on the order passed in Satinderjit Singh's case (supra) involving similar offences, is misplaced. Facts of that case were totally different. Moreover, said order merely conferred the concession of pre-arrest bail. It does not lay down any law. On the other hand, in Abhinav Gupta's case (supra) relied upon by counsel for the complainant, allegations were under Section 66 of the Act and 420, 406 IPC. Complaint contained similar allegations i.e. theft of confidential information and trade secrets of the company, even confidential drawings and designs. The accused were using complainant company's computer system and computer network and parted with trade secrets and information, confidential in nature. This court while declining bail, observed that to elicit how confidential information was downloaded and leaked by the accused, custodial interrogation was required. Plea of parity with accused Saurabh Gupta is also misconceived. Apart from the fact that his role is different, complainant has moved an application for cancellation of his bail, which is still pending. In the instant case, this court is of the opinion that the prayer of the petitioner for pre-arrest bail is without any merit. The same is hereby rejected.
Dismissed.
(RAJAN GUPTA)
No comments:
Post a Comment