REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 133 OF 2016
(Arising out of S.L.P.(Crl.) No.2554 of 2011)
|RAMESH RAJAGOPAL |Appellant(s) |
Versus
|DEVI POLYMERS PRIVATE LIMITED |Respondent(s) |
JUDGMENT
S.A.BOBDE, J.
1. We have heard learned counsel for the parties.
2. Leave granted.
3. The appellant has preferred this appeal against the judgment
passed by the Madras High Court in Criminal O.P. No. 4404 of 2010
refusing to quash the criminal proceedings initiated against him.
4. The appellant was prosecuted by the respondent under Sections
409, 468 and 471 of the Indian Penal Code (in short 'the IPC') read
with Sections 65 and 66 of the Information Technology Act, 2000 read
with Section 120(b) of the IPC. The appellant is a Director in Devi
Polymers Private Limited, Chennai which is a leader in Polyester
Moulding Compound (PMC), Sheet Moulding Compound (SMC) and Dough
Moulding Compound (DMCO) in India.
It is also manufacturing SMC and DMC moulded components for the
electrical, automotive and various other industries. The company is
also supplying SMC and DMC compounds and components to almost all the
leading electrical switch gear industries and automotive industries in
India.
5. It has three Units – A, B and C. Unit 'C' is being headed by
the appellant. It is not disputed that the Unit 'C' primarily renders
consultancy services. However, all the three Units are units of one
entity i.e. Devi Polymers Private Limited.
6. In the course of business, the appellant thought of improving
the consultancy services and apparently contacted a consultant known
as Michael T Jackson. He also contacted the regular consultants of
the Company i.e. Devi Polymers Private Limited. The consultants
apparently advised the creation of a separate entity known as Devi
Consultancy Services and accordingly, in the web page that was created
by the consultant, this name occurred. Since an invoice was raised
by the consultant Michael T Jackson in the sum of 10,857.50 US
Dollars, the said amount was paid from the funds of Devi Polymers
Private Limited amounting to Rs.5,57,207/-. The amount of Rs.17,000/-
has been paid by the Devi Polymers Private Limited to M/s Easy Link.
These amounts were paid as advised by the appellant. It is
significant that no amount has been paid or received by Unit C
separately, independently of Devi Polymers Private Limited. All this,
namely the engaging of consultants and payments to them was apparently
done at the behest of the appellant.
7. The relationship being strained between the respondent and the
appellant, who are relatives, several proceedings seem to have been
initiated in the Company Law Board pertaining to oppression and
mismanagement. As of now, it is said that the appellant's petition
for mismanagement has been dismissed but an appeal is pending. We
are, however, not concerned with those proceedings.
8. However, in the course of disputes and the pending proceedings,
the respondent initiated the instant criminal complaint against the
appellant. The main circumstances which are relied upon by the
respondent in the complaint is that in the website for Devi
Consultancy Services that was created on the advice of the consultant
is shown as a separate division independent of Devi Polymers Private
Limited. According to the complainant, this has resulted in forgery,
since there is no such thing as Devi Consultancy Services; though the
existence of Unit C of Devi Polymers Private Limited, which deal with
consultancy is not denied. The second circumstance seems to be the
payment made by the Devi Polymers Private Limited to the consultants
from their own account. The former is said to be forgery and the
latter is said to be mis-appropriation of funds and breach of trust.
9. Having given our anxious consideration to the dispute, we find
that none of the aforesaid circumstances can lead to an inference of
commission of an offence under the IPC at any rate none of the offence
alleged. As far as the website is concerned, though undoubtedly, Devi
Consultancy Services (DCS) is mentioned, it is made clear in the
website itself that DCS is a part of Devi Polymers Private Limited
which is apparent from a link which shows Devi Polymers Private
Limited, in the website itself, are shown as Devi Polymers Private
Limited, the main Company and Devi Consultancy Services as a sister
Company. Similarly, in the website of Devi Polymers Private Limited,
which was moved by the consultant, there is a link which shows that
Devi Consultancy Services is a sister concern and it is stated that
viewers may visit that site. The address of Devi Consultancy Services
is shown to be the same address as that of Devi Polymers Private
Limited. We are satisfied that there is no attempt whatsoever to
project the Devi Consultancy Services as a concern or a Company which
is independent and separate from Devi Polymers Private Limited, to
which both the parties belong. In any case it is not possible to view
the act as an act of forgery.
10. It might have been possible to attribute some criminal intent
to the projection of the Unit C as Devi Consultancy Services in the
website, if as a result of such projection, the appellant had received
any amounts separate from the Devi Polymers Private Limited, but a
perusal of the complaint shows that this is not so. Not a single
rupee has been received by the appellant in his own name or even
separately in the name of Unit C, which he is heading. All amounts
have been received by Devi Polymers Private Limited.
11. Section 463 of the Indian Penal Code defines forgery which reads
as follows:-
“463. Forgery.— Whoever makes any false documents or false
electronic record or part of a document or electronic record, with
intent to cause damage or injury, to the public or to any person,
or to support any claim or title, or to cause any person to part
with property, or to enter into any express or implied contract,
or with intent to commit fraud or that fraud may be committed,
commits forgery.”
12. It is not possible to view the contents of the website showing
the Devi Consultancy Services as a concern which is separate from Devi
Polymers Private Limited in view of the contents of the website
described above. Moreover, it is not possible to impute any intent to
cause damage or injury or to enter into any express or implied
contract or any intent to commit fraud in the making of the said
website. The appellant has not committed any act which fits the above
description. Admittedly, he has not received a single rupee or nor
has he entered into any contract in his own name on the basis of the
above website.
13. Section 468 of the IPC reads as follows:-
“468. Forgery for purpose of cheating — Whoever
commits forgery, intending that the document or electronic
record forged shall be used for the purpose of cheating,
shall be punished with imprisonment of either description for
a term which may extend to seven years, and shall also be
liable to fine.”
14. In the absence of any act in pursuance of the website by which
he has deceived any person fraudulently or dishonestly, induced any
one to deliver any property to any person, we find that it is not
possible to attribute any intention of cheating which is a necessary
ingredient for the offence under Section 468.
15. We find that the allegations that the appellant is guilty of an
offence under the aforesaid section are inherently improbable and
there is no sufficient ground of proceedings against the accused. The
proceedings have been initiated against the appellant as a part of an
ongoing dispute between the parties and seem to be due to a private
and personal grudge.
16. In State of Haryana and Ors. v. Bhajan Lal and Ors. reported in
1992 Supp(1) SCC 335, this Court laid down the following guidelines
where the power under Section 482 should be exercised. They are:-
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482 of the
Code which we have extracted and reproduced above, we give the
following categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose
a cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section 155(2) of
the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a
case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an 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.”
We find that the High Court ought to have exercised its power under
Clause (1), (3) and (5) of the above said judgment.
17. In Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao
Chandrojirao Angre and Ors., reported in (1988) 1 SCC 692, this Court
observed as follows:-
“7. The legal position is well settled that when a
prosecution at the initial stage is asked to be quashed, the test
to be applied by the court is as to whether the uncontroverted
allegations as made prima facie establish the offence. It is also
for the court to take into consideration any special features
which appear in a particular case to consider whether it is
expedient and in the interest of justice to permit a prosecution
to continue. This is so on the basis that the court cannot be
utilised for any oblique purpose and where in the opinion of the
court chances of an ultimate conviction are bleak and, therefore,
no useful purpose is likely to be served by allowing a criminal
prosecution to continue, the court may while taking into
consideration the special facts of a case also quash the
proceeding even though it may be at a preliminary stage.”
18. This Court in Janata Dal v. H.S. Chowdhary and Ors., reported in
(1992) 4 SCC 305, observed as follows:-
“132. The criminal courts are clothed with inherent power
to make such orders as may be necessary for the ends of justice.
Such power though unrestricted and undefined should not be
capriciously or arbitrarily exercised, but should be exercised
in appropriate cases, ex debito justitiae to do real and
substantial justice for the administration of which alone the
courts exist. The powers possessed by the High Court under
Section 482 of the Code are very wide and the very plenitude of
the power requires great caution in its exercise. Courts must be
careful to see that its decision in exercise of this power is
based on sound principles.”
We reiterate the same caution having found that this is an appropriate
case for the exercise of such powers.
19. The entire law on the subjects was reviewed by a three Judges
Bench of this Court in Inder Mohan Goswami and Anr. v. State of
Uttaranchal and Ors., reported in (2007) 12 SCC 1 vide paragraphs 23
to 39. Thereafter, the law was reiterated in R. Kalyani v. Janak C.
Mehta and Ors. reported in (2009) 1 SCC 516 vide paragraphs 15 and 16.
20. In all the cases the principle that the accused must be relieved
from the prosecution, even if the allegations are taken at their face
value and accepted in their entirety do not constitute any offence has
been upheld, and thereafter in Umesh Kumar v. State of Andhra Pradesh
and anr., reported in (2013) 10 SCC 591.
21. As regards the commission of offences under the Information
Technology Act, 2000 the allegations are that the appellant had, with
fraudulent and dishonest intention on the website of Devi Consultancy
Services i.e. www.devidcs.com that the former is a sister concern of
Devi Polymers. Further, that this amounts to creating false
electronic record. In view of the finding above we find that no
offence is made out under Section 66 of the I.T. Act, read with
Section 43. The appellant was a Director of Devi Polymers and nothing
is brought on record to show that he did not have any authority to
access the computer system or the computer network of the company.
That apart there is nothing on record to show the commission of
offence under Section 65 of the I.T. Act, since the allegation is not
that any computer source code has been concealed, destroyed or
altered. We have already observed that the acts of the appellant did
not have any dishonest intention while considering the allegations in
respect of the other offences. In the circumstances, no case is made
out under Sections 65 and 66 of the I.T. Act, 2000.
22. The High Court seems to have over looked these circumstances and
has merely dismissed the petition under Section 482 of the Criminal
Procedure Code on the ground that it requires evidence at a trial to
come to any conclusion. We, however, find that the criminal
proceedings initiated by the respondent constitute an abuse of process
of Court and it is necessary to meet the ends of justice to quash the
prosecution against the appellant.
23. Accordingly, the appeal succeeds. The prosecution is quashed.
........................J.
(S.A. BOBDE)
........................J.
(AMITAVA ROY)
New Delhi,
April 19,2016
