1. A petition of complaint was lodged before the Learned Chief Metropolitan Magistrate, Kolkata on 4th October 2010 alleging commission of offences under Sections 379, 403, 411 read with Section 120B of the Indian Penal Code, 1860. The complainant, Birla Corporation Limited (the company), who is the Opposite Party No. 1 in this proceeding arraigned 16 persons as accused in the said complaint and prayer of the complainant was for taking cognizance of offences including those 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 Chief Metropolitan Magistrate took cognizance of the offences and transferred the case to the learned Metropolitan Magistrate, 10th Court under Section 192(1) of the Code of Criminal Procedure 1973 for enquiry and disposal. The matter was taken up for hearing again on 6th October, 2010, for examination under Section 200 of the 1973 Code. On that date initial deposition of one Samir Ganguly, representing the complainant was recorded. The learned Magistrate found that some of the accused persons were having their places of residence beyond the territorial jurisdiction of the Court and he opined that the matter required further enquiry under Section 202 of the 1973 Code. On 8th October, 2010, the case was taken up for enquiry under Section 202 of the 1973 Code. Another witness on behalf of the complainant, P.B. Dinesh was examined and his statement was recorded. The learned Magistrate observed in the order passed on that date that 'purpose of enquiry seem to have been meted out.' Considering the affidavit filed by the complainant and the documents supplied and relied on by the complainant company in support of the case, the learned Magistrate found that sufficient grounds were there for proceeding against all the sixteen accused persons for commission of offences under Sections 380/411/120B of the IPC. Cognizance was taken again by the learned Magistrate and summons were directed to be issued upon the accused persons. In this petition taken out under the provisions of Section 482 of the 1973 Code, the said sixteen accused persons in substance seek quashing of the petition of complaint.
3. For the purpose of appreciating the controversy involved in this proceeding in its proper perspective, it is necessary to narrate certain past events and proceedings concerning the dispute between the complainant company and the individuals in management thereof on one side and the accused persons on the other as these events and proceedings have genetic link with the subject complaint case. One Priyamvada Devi Birla (PDB) and her husband Madhav Prasad Birla, (MPB) were in control and management of several corporate entities which are collectively referred to as the M.P. Birla Group of Industries. They also appear to have had created several trusts for undertaking charitable functions.
4. PDB died on 3rd July, 2004, and MPB had predeceased her. There is an ongoing dispute 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 instituted five different suits in this Court under Section 92 of the Code of Civil Procedure, alleging therein that in the year 1988 MPB and PDB had created five mutual and reciprocal trusts to leave the estate covered by these trusts to charity as the remainder beneficiaries. These trusts appear to have been subsequently revoked. In the five suits, the petitioner nos. 12 to 16, inter alia, complain against purported revocation of the five trusts. 5. So far as the complaint case giving rise to this proceeding is concerned, it has been alleged that in the company petition and the five suits, copies of altogether 54 documents pertaining to the company have been used without its consent. These documents include intra-company correspondence, internal audit reports, agreements etc; in relation to operations of the company. Basic case of the complainant is that these documents were stolen and/or dishonestly misappropriated from the company by the accused persons and converted the same to their own use. In the petition of complaint, a list of 54 documents with their brief description have been given in a schedule, over which the allegations of theft and dishonest misappropriation of property are founded. These documents can be divided mainly into two categories. One set, being item Nos. 2 to 28 in the schedule, are still in custody of the complainant company. As regards the next set, itemized against serial no. 29 to 54 of the schedule, complaint’s case is that these are not in possession of the company anymore and it has been alleged in the petition of complaint that these documents are still in possession of the accused persons. The first document in the schedule is an internal audit report pertaining to the Chanderia unit of the company for the period ending in the month of November 2009. Allegations concerning this report have been independently made out in the complaint petition. It has been stated in the petition that the auditors take several precautionary measures to prevent leakage of such documents, and in this case only six original sets of the report were prepared. Out of these six sets, five were sent to officers of the company individually named and one was retained by the auditors. The complainant claims to have ascertained that all the original sets are with their legitimate custodians. As regards the copy which has been used by the accused persons, 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 the Chief Executive Officer of that company. The substance of the allegations of the complainant against the accused persons appears from paragraph 21 of the petition of complaint, in which it has been stated:-
'21. It is submitted that accused No. 1 to 9 and 12 to 16 in conspiracy with each other and with accused Nos. 10 and 11 as well as other known and unknown persons have:
a. Dishonestly and without the consent of the Company moved the property mentioned in paragraph 9 in order to take it out of the possession of the Company and have committed theft and conspiracy to commit theft. The accused persons have dishonestly received or retained stolen property knowing and having reason to believe the same to be stolen property and as such have committed the offence of dishonestly receiving stolen property.
b. Dishonestly misappropriated and converted to their own use, movable property belonging to the Company and as such have committed an offence of dishonest misappropriation of property and conspiracy to commit such offence.'
6. The manner in which the individual accused persons have been implicated in the petition of complaint appears from paragraphs 7 to 11 thereof, and it is stated in these paragraphs:-
'7. Recently, i.e. on 11th March 2010 accused Nos. 1 to 5 and M/s Birla Education Trust (represented by accused No. 6) through their authorised signatories accused Nos. 6 to 9 filed a petition under Sections 397, 398, 402 etc. of the Companies Act, 1956 bearing No. C.P. 1 of 2010 (Birla Education Trust and Others v. Birla Corporation Ltd. and Others) before the Company Law Board (hereinafter referred to as the 'CLB Petition') seeking various reliefs. The Company was served with a copy of the said CLB petition under cover of letter dated 11th March, 2010.
8. Again on 24th March, 2010, accused Nos. 12 to 16 filed 5 civil suits in the Hon’ble High Court at Calcutta being C. S. Nos. 73 to 77 of 2010 (Ram Kishore Choudhury & Ors. –vs- M. P. Birla Trust & Ors. and 4 other matters) praying for various reliefs. In connection with the aforesaid suits, the accused Nos. 12 to 16 also filed 5 interlocutory petitions therein being G. A. Nos. 997 to 1001 of 2010 praying for various interim reliefs (herein after referred to as the 'said applications'). The Company is not a party to such suits. The Chairman of the Company, Harsh 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 affirmed an affidavit on behalf of accused Nos. 1, 4 and 5; accused No. 8 affirmed an affidavit on behalf of accused No. 3 and accused No. 9 affirmed an affidavit on behalf of accused No. 2. The accused Nos. 6 to 9 were involved in the process of preparation of the CLB Petition, which includes giving instruction to their Advocates, obtaining and/or collecting documents (including documents complained of), handing over such documents to the Advocate from their possession for the purpose of annexing the same. Hence, the accused Nos. 6 to 9 were all along aware of the nature and origin of the documents, which were confidential in nature and they were in possession of such documents only because of the criminal acts of the accused persons described in this complaint.
11. The said applications in the 5 suits were affirmed by the accused Nos. 12, 13 and 16 themselves and on behalf of the accused Nos. 14 and 15, applications were affirmed by their respective Constituted Attorneys. The accused Nos. 12 to 16 were also involved in the process of preparation of the said applications, which includes giving instruction to the Advocates, obtaining and/or collecting documents (including documents complained of), handing over such documents to the Advocate from their possession for the purpose of annexing the same. Hence, the accused Nos. 12 to 16 were all along aware of the nature and origin of the documents, which were confidential in nature and they were in possession of such documents only because of the criminal acts of the accused persons described in this complaint.'
7. The petitioners’ case has been argued before me mainly by Mr. Ram Jethmalani and Mr. Ranjit Kumar, learned senior counsel who appeared on behalf of the petitioner Nos. 1 to 9. Mr. Deepak Kumar Sengupta, learned senior counsel has appeared petitioner nos. 10 and 11, whereas petitioner no. 12 to 16 have been represented by Mr. Y.J. Dastoor learned senior counsel. Mr. Pradip Kumar Ghosh, learned senior counsel argued the case of opposite party No. 1 and Mr. Pratap Chatterjee, learned senior counsel represented the opposite party No. 2. Though the learned counsel for the petitioners as also the Opposite parties have addressed me separately on behalf of their clients, the underlying themes of the cases of the petitioners and that of the Opposite Parties have been the same, and there has been 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), (3), (5) and (7) of paragraph 108 of the report in the case of Bhajan Lal (supra). The circumstances under which an F.I.R. or a criminal complaint can be quashed at the threshold has been summarized in the said paragraph, i.e. paragraph 108 of this judgment in these terms;-
'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 extra-ordinary 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 F.I.R. 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 F.I.R. 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.'
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 be worth over rupees twenty thousand crores and the Opposite Party no. 2 is clamming right to the said estate and is exercising effective control over the said estate illegally and the petition of complaint has been motivated by these factors. On the allegation that a mala fide or malicious complaint ought to be quashed, the judgments of the Supreme Court in the cases of Hira Lal Vs. State of U.P. & Ors. [(2009)11 SCC 89], Sundar Babu Vs. State of Tamil Nadu [(2009)14 SCC 244], Baijnath Jha Vs. Sita Ram & Anr. [(2008)8 SCC 77], Ramesh Dutta & Ors. Vs. State of Punjab & Ors. [(2010)8 SCC 775], Punjab National Bank & Ors. Vs. Surendra Prasad Sinha (AIR 1992 SC 1815). In all these cases, prayers for quashing of complaint or F.I.R. was sustained mainly with reference to circumstances specified in sub-paragraph (7) of paragraph 108 of the decision in the case of Bhajan Lal (supra). The Supreme Court found some fundamental flaw in the complaints/F.I.R.s involved in all these cases.
10. In the case of Hira Lal (supra), after a complaint petition was dismissed by the learned Magistrate, a second complaint was filed on the same set of allegations. That complaint was quashed. In the case of Sundar Babu (supra), complaint under Section 498A of the IPC with Section 4 of the Dowry Prohibition Act, 1961 was instituted by the wife in a case where the husband had left for the USA within six months of marriage, which had taken place in the year 1998. The wife had also remarried in the year 2002. In the factual context of that case, the proceeding was quashed. The decision in the case of Baijnath Jha (supra) was rendered in a case arising out of a counter-complaint in relation to charges of theft of electricity. A bribery case was filed against the employees of the electricity company, which did not specify the date on which bribe was demanded. Ramesh Dutta & Ors. Vs. State of Punjab & Ors. (supra) was a case arising out of criminal proceeding in a property related dispute, in which the Court found the ingredients of the offences alleged were not satisfied. The case of Punjab National Bank (supra) arose out of a complaint against the bank alleging offences under Sections 409, 109 and 114 of the IPC for realizing certain debts due to it beyond the limitation period, by encashing security of the guarantor. On finding that rules of limitation did not destroy the right 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 estate of the PDB by the opposite party no.2. That would constitute going beyond the scope of the present petition. In the petition of complaint, what has been alleged is that copies of certain documents belonging to the opposite party no.1 have been used in certain legal proceedings by the accused persons, and by gaining access to these documents in an illegal manner, and having come in possession of copies thereof without consent of their lawful custodians, the accused persons have committed the offences of theft and dishonest misappropriation of property. In respect of documents itemized against serial nos. 29 to 54, it has been specifically alleged in the complaint petition that after photocopying them, the documents have not been returned to the premises where they were kept, and those documents are still in possession of the accused persons. According to the complainant, copies of these documents were in possession of the accused persons who had instituted the legal proceedings, and accused no.10 and 11 have been arraigned as they were in charge of the building, in which the documents were alleged to have had been kept in secrecy. There is allegation of criminal conspiracy against all the accused persons. No specific statement in this petition under section 482 of the 1973 Code is there to show as to how the petitioners obtained the copies of these documents. But in course of hearing it was hinted by the learned counsel appearing for the petitioners that some disgruntled employee of the company may have had made available these documents to expose the wrongdoing on the part of the company. Considering the basis of the complaint and the stand of the petitioners (who are the accused persons), in my view I will have to decide first as to whether the allegations made in this petition disclose the offences alleged to have been committed by the petitioners or not. Points have also been raised on the question of delay in institution of the petition of complaint and the manner in which process has been issued. I shall deal with these issues independently in this judgement. I am of the opinion, however that, no outstanding case has been made out by the petitioners, which would justify quashing the petition of the compliant on the ground of being mala fide per se. Nor a case has been made out that the allegations against the petitioners are so absurd or inherently 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 of the petitioners is on the aspect of issue of process. It has been submitted that process was issued on the basis of the petition of complaint in an improper manner. Main contention of the petitioners in this regard is that the learned Magistrate did not satisfy himself as regards prima facie culpability of the accused persons individually and on that count, prayer has made before me in course of hearing for quashing the order by which process was issued I shall deal with this issue independently. Though commission of offences under four heads has been alleged against the petitioners/accused persons, I have been mainly addressed on the question as to whether the petition of complaint discloses commission of the offence of theft or not. The offences of theft and criminal misappropriation of property have certain common ingredients under the I.P.C., and I shall deal with the question of theft first. Theft has been defined in section 378 of the IPC which stipulates:-
'378. Theft.-Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.
Explanation 1.-A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.-A moving effected by the same act which affects the severance may be a theft.
Explanation 3.-A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.-A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5.-The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.
Illustrations. - (a) A cuts down a tree on Z’s ground, with the intention of dishonestly taking the tree out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree in order to such taking, he has committed 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
(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 it, A commits theft.
(g) A finds a ring lying on the highroad, not in the possession of any person. A by taking it, commits no theft, though he may commit criminal misappropriation of property.
(h) A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft.
(i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A, not owing to the jeweller any debt for which the jeweler might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z’s hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, in as much as what he did was not done dishonestly.
(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z’s possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, in as much as he takes it dishonestly.
(k) Again, if A, having pawned his watch to Z, takes it out of Z’s possession without Z’s consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property in as much as he takes it dishonestly.
(l) A takes an article belonging to Z out of Z’s possession, without Z’s consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefore committed theft.
(m) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a book without Z’s express consent for the purpose merely of reading it, and with the intention of returning it. Here, it is probable that A may have conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression, A has not committed theft.
(n) A asks charity from Z’s wife. She gives A money, food and clothes, which A knows to belong to Z her husband. Here it 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). Additional submissions of the petitioners based on which the petitioners want quashing of the complaint on the allegation of theft are threefold. It has been contended that documents which contain information do not have the attributes of property, and hence cannot be the subject of theft. It has been further urged that using the copies do not amount to theft of any property. A judgment of the Supreme Court of Canada, R Vs. Stewarts reported in [(1988)1 SCR 963] has been relied upon by the petitioners on this point, in which it has been held that confidential information is not property, and confidentiality cannot be the subject if theft. A US Supreme Court Judgment, Dowling Vs. United States [473 U.S. 207 (1985)] has also been referred to by the petitioners on the point that information cannot be subject of theft. The case of Dowling (supra) involved distribution of illegally produced records of the singer Elvis Presley’s concerts and television shows. The appellant Dowling was charged of stealing, converting or taking by fraud these records under the National Stolen Property Act of the US. The relevant provision of the statute prohibited interstate or foreign transportation of goods beyond certain value by persons having knowledge that such goods were 'stolen, converted or taken by fraud.' Dowling was acquitted by the US Supreme Court on the ground that what he had transported, being unauthorized recordings of Elvis Presley’s performance, did not amount to goods stolen, converted or taken by fraud. The petitioners also wanted the application of the principle 'de minimis non curat lex' – as incorporated in Section 95 of the I.P.C., on the act of dispossession of the original documents. It was submitted that there was dispossession of the original document for a very minimal period if at all, which by itself would not constitute an offence.
14. Learned counsel for the opposite parties countered these submissions, arguing that at this stage, there is no scope of deep analysis of the allegations concerning commission of offences alleged in the complaint, which ought to be undertaken at the time of trial. The decisions of the Hon’ble Supreme Court in the case of J.P. Sharma Vs. Vinod Kumar Jain & Ors. [(1986)3 SCC 67] has been referred to on this point. This judgment deals with the extent of Court’s power to scrutinize a criminal complaint 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 opined that the High Court ought not to have quashed the charge framed by the Magistrate, since the Magistrate had formed opinion that there were grounds to presume that the accused had committed offence, and it could not be said that prosecution was false, frivolous or vexatious or one which was by way of abuse of process of law. As I have already indicated the scope of scrutiny of the complaint in this proceeding in the earlier part of this judgment, the ratio of this decision would be inapplicable in the facts of this case. In none of the authorities cited on behalf of the Opposite parties, the principle embodied in sub-paragraphs (1) and (3) of paragraph 108 of the Bhajan Lal’s (supra) case has been held to have been abrogated.
15. Now I shall refer to the ingredients of the offence of theft as outlined in Section 378 of the IPC, for examining the question as to whether the petition of complaint discloses the offence of theft or not. In a full Bench judgment of this Court in the case of Queen Empress Vs. Sri Churn Kanungo [(1895) ILR 22 Cal 1017], the ingredients have been analyzed as:-
'(1) There must be an intention to take some moveable property,
(2) The taking intended must be dishonest,
(3) It must be from the possession of another person without his consent, and
(4) There must be a moving of the property in order to such taking.'
16. Among the expressions used in Section 378 of the Code, dishonestly and movable property have been defined in Sections 24 and 22 of the Code in the following manner:-
''Dishonestly'.- 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'.'
'Movable property'.- The words 'movable property' are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.'
Section 23 of the Code defines wrongful gain and wrongful loss:-
''Wrongful gain'. – 'Wrongful gain' is gain by unlawful means of property to which the person gaining is not legally entitled.
'Wrongful loss'.- 'Wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled.
Gaining wrongfully, losing wrongfully.- A person is said to 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 absolute proposition of law that a body corporate cannot have criminal intent or is incapable of committing a penal offence. That question may require to be examined at the time of imposing sentence, but a criminal complaint cannot be quashed for the sole reason that some of the accused persons are corporate entities. It was also asserted on behalf of the petitioners that the petitioner nos. 1 to 5 and the trust represented by the petitioner no. 6 are shareholders of the complainant company, and shareholders being owners of the company cannot be held liable for theft of the company’s own property. Same argument has been advanced on behalf of the petitioner nos. 7 to 9, being directors of the petitioner nos. 1 to 5. I am unable to accept this argument. A company and its shareholders have distinct juridical entities, and a shareholder cannot appropriate all the properties of the company. The relationship of a company with its shareholders is guided by the Companies Act, and no provision of the said statute has been shown to me under which a shareholder, as owner of the company, can have ready access to all the documents of the company whatever be the purpose for obtaining such access.
18. The other aspect on which I was addressed was on loss of mental element on the part of the complainant in retaining possession of document nos. 29 to 54 specified in the said schedule, which was no more in custody or control of the complainant. It has been submitted on behalf of the petitioners that no police complaint was made by the company, and the complainant had taken no recourse to any other mode for recovery of these documents. It was argued on behalf of the petitioners, referring to Jurisprudence by Sir John Salmond, that concept of possession has two elements. One is physical possession or control, the other being Animus Possidendi – the intention to possess. By not making sufficient efforts to recover the lost documents, it was contended by the petitioners that the company had no intention to possess the same. But this question in my opinion cannot be decided at this stage. Adjudication on this question would require leading evidence. On the basis of the statements made in the petition of complaint, it is not possible for me to come to a conclusion at this stage that because of mere delay in lodging complaint or failing to take steps to recover the list documents, 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 definition of movable property has been reproduced earlier in this judgment. section 29 of the I.P.C. specifies:-
'29. 'Document'.- The word 'document' denotes any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.
Explanation 1.- It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.
A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document.
A cheque upon a banker is a document.
A power-of-attorney is a document.
A map or plan which is intended to be used or which may be used as evidence, is a document.
A writing containing directions or instructions is a document.
Explanation 2.- whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed.
A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words 'pay to the holder' or words to that effect had been written over the signature.'
22. Not much emphasis however was given on the argument advanced on behalf of the petitioners that documents do not constitute 'movable property' per se. Contention of the petitioners has been that they are in possession of copies of the documents only and copies are not documents themselves, capable of being subject-matter of theft. This argument has been advanced in response to the Opposite Parties’ submissions that the accused petitioners having possession of documents, which have the features of movable property, and such property having been removed without the consent of the person who had lawful possession of the same, a prima-facie case against them of receiving stolen property stood made out for Dishonestly receiving stolen property in terms of 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.
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 not establish the offences alleged against the petitioners. It was also submitted on behalf of the petitioners that the documents concerned had no pecuniary value, and there could be no question of wrongful gain or wrongful loss to any person, even assuming that there was actual removal of documents.
24. The offences of theft, dishonest misappropriation of property as also receiving stolen property, provided in Sections 378, 403 and 411 of the IPC have one common element, dishonest intention. I shall deal first with the argument of the petitioners as to whether use of copies of documents by them to expose alleged misdeeds of the complainant could, at this stage, held to be a legitimate act, not an act done dishonestly. Under the Code, an act done dishonestly refers to an act done with the intention of causing wrongful gain to one person or wrongful loss to another person. The four authorities relied upon on behalf of the petitioners to contend that the offence of theft was not made out against them touch on this point and coincidentally all these cases involve seizing of cattle and taking them to the pound. In the case of Jhaman Lal & Ors. (supra), ten cattle were taken away by the accused persons from the house of the complainant to the cattle pound thereafter. The Court, on evidence held that the accused persons did not intend to commit theft. In the case of Aradhun Mundal (supra), the cattle which were seized were grazing on fallow land. They were not taken to the nearest pound but to one in another district at some distance. It was held in this judgment:-
'To commit theft, a man must take 'dishonestly,' and a dishonest taking is by Section 24, Penal Code, one which is done with the intention of causing wrongful gain to one person or wrongful loss to another. There is no question here as to the wrongful gain, but the Joint Magistrate considers that wrongful loss was intended, because the pounding of the cattle was effected with 'the malicious intent of subjecting the owners to additional expense, inconvenience, and annoyance.' The two last would not in any case come within the definition, nor was the 'additional expense, supposing it to have been incurred, a wrongful loss within the meaning of the Section to the owners of the cattle. That loss refers to the thing dishonestly taken, which, in this case, would mean the animals themselves; and it 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 W.R. Cr. 7 that the loss refers to the thing dishonestly taken, which, in this case, would mean the animals themselves; and, it could not be 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 (s. 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. A similar view that an illegal seizure of the cattle and taking them to the pound does not constitute theft was also held in 10 Cal W.N. ccxxviii. 3'
26. The other authority relied upon by the petitioners on the same point is a judgment of the Supreme Court in the case of Ram Ratan (supra), in which the allegation against the appellants was commission of theft on illegal seizure of cattle from certain land of which the owner of the cattle was in possession. These cattle were also taken to the pound. In this decision, it has been held:-
'(23) Till the property is moved, no offence of theft can be committed even if the alleged offender had intended to take dishonestly the property out of the possession of any other person without his consent. Mere seizure of cattle found trespassing on land does not amount to moving the cattle. The act of moving the cattle would be subsequent to seizing them. It follows therefore that the seizure of cattle, though illegal, cannot amount to the offence of theft.
(24) It is after the seizure of cattle that the person seizing them moves them in order to take them to the pound. This act of taking them to the pound is what he is directed to do by the Act, Section 10 specifically directs so. Of course, the direction is in regard to the cattle seized for damaging the land or crop, but the same direction will be deemed to be operative when the cattle are seized in the purported exercise of the right to seize them under s. 10 of the Act, specially when s. 20 speaks of such seizure as being under the Act. An act done in accordance with the provisions of the Act cannot be considered, prima facie, to be a dishonest act, and would not justify the conclusion that the taking of the cattle to the pound amounted to the offence of theft.
(25) A person is said to do a thing dishonestly when' he does anything with the intention of causing wrongful gain to one person or 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. He avoids the risk of further harm to himself and protects the interest of the owner by having the cattle in safe custody and keeping them from doing any further damage to anyone's land or crop. The owner can get back the cattle from the pound on payment of the fine and expenses in accordance with the provisions of S. 15 of the Act. Whatever he would have to pay for getting the cattle released, he can reimburse himself by suitable action under S. 20 of the Act, as the Magistrate dealing with his complaint is empowered under S. 22 to order the payment of fines and expenses paid by him in addition to the compensation for any loss that he suffers. The owner of the cattle illegally seized is thus not only reimbursed for the fine and expenses which he paid but also for any loss that he has suffered on account of illegal seizure. This means that in the ultimate analysis the owner of the cattle, seized illegally, suffers no loss and that therefore the act of illegal seizure of cattle does not cause any wrongful loss to the owner of the cattle. It follows that the person seizing cattle purporting to act under the provisions of the Act does not cause any wrongful loss to the owner of the cattle.
(26) Even if it be assumed that some sort of loss which is wrongful in nature is caused to the owner of the cattle by illegal seizure and impounding them, the question arises whether the person seizing the cattle illegally from a field with the avowed object of taking them to the pound on the ground that it was damaging the field or the crop can be imputed the intention to take the cattle dishonestly. The effect of his seizing the cattle illegally may be assumed to cause wrongful loss to the owner of the cattle, but did he so intend? We are of opinion that he did not so intend. His intention at the time, though based on his wrong notions that he was entitled to seize the cattle, was to take them to the pound as required by the Act so that no further damage be done to the land or property. It is true that intention is mostly gathered from the consequences of the act committed by the accused but that is so because it is not often that the intention with which an act is committed can be definitely known from any previous fact. When a person does a certain act by openly expressing his intention in committing the act there seems no reason why his intention should be gathered 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; Paryag Rai v. Arju Mian, ILR 22 Cal 139; Queen Empress v. Sri Churn Chungo ILR 22 Cal 1017 (FB). In these cases seizure of cattle was not made even ostensibly on account of their causing, damage to any land or crop. They were seized and taken away by persons in order to get their claims against the owners satisfied, or in order to cause them loss otherwise. Such seizures of cattle, was rightly held to amount to 'theft.
(29) On the other hand there are cases which held that no offence is committed by a person seizing cattle illegally. In Empress v. Ramjiawan, 1881 ALL WN 158 it was held that illegal seizure of cattle under the Act was not an offence of mischief under the Penal Code and, that the, remedy of the owner of the cattle was to be found in the provisions of ss. 20, 21 and
(30) In Dayal v. Emperor, air 1943 Oudh 280 persons who had seized cattle from, a pound and impounded them in retaliation of the action of the owners of the cattle in justifiably impounding their cattle a day earlier, were held not to have committed the offence of mischief under S. 425, I.P.C. inasmuch as driving the cattle to the pound did not in any way lead to the diminution in the utility or value of the cattle and not to have committed the offence of theft as no wrongful loss was caused to the owners of cattle even though they would have had to incur expenses in order to get them released.
(31) We therefore hold that in the circumstances of this case, Rattan and others, appellants, who had seized the cattle from the .disputed field committed no offence of theft even if they had no right to that field and that therefore Shamnarain Singh and others who went armed with sharp-edged weapons and lathis to rescue the cattle had no right of defence of their property, against Rattan and others.'
27. On behalf of the Opposite Parties, it was argued on the other hand that wrongful gain or wrongful loss need not be pecuniary gain or loss, and the question as to whether wrongful gain or wrongful loss occurred in any event cannot be determined at this stage. On the point as to what would constitute wrongful gain or wrongful loss, a Full Bench judgment of this Court in the case of Queen-Empress Vs. Sri Churn Chungo [(1895) ILR 22 Cal 1017] was relied upon. This was a case involving allegations of theft against a creditor accused of taking movable property of his 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 following terms:-
'11. "Wrongful gain" is regarded as gain by unlawful means of property to which the person gaining is not legally entitled. Similarly, 'wrongful loss' is defined as the loss by unlawful means of property to which the person losing it is legally entitled. There is nothing peculiar about the expression 'dishonestly' employed in the I. P. C. All that is required to be proved in order to establish that the person doing the act was doing it dishonestly is, that by that act he is gaining by unlawful means of property to which he is not legally entitled to gain, or that any person is losing property by reason of that act which the person losing is legally entitled.
The expression 'dishonestly' used in the I. P. C. should not be confused with the commonly used word 'dishonestly' which is understood to involve an element of fraud or deceit. In this case, under law, the only person who could keep the press in his possession is P. W. 1. By removing the press out of the possession of P. W. 1, the accused responsible for such removal were gaining by unlawful means, that is, by unlawfully breaking open the lock and taking away the press and acquiring possession thereof, which they are not entitled to keep in their possession, having regard to the general law as well as the provisions of Act XXV of 1867. Similarly, the direct result of their removal of the press from out of the complainant's possession is the causing of loss to the complainant who is the lawful keeper of the press, in that he is no longer having possession of the press, and cannot, therefore, use it which he is legally entitled to do by reason of the declarations and authentication referred to already.
There is therefore no doubt that the act of the accused in removing the press from the possession of P. W. 1 -- whether such removal had taken place during the day or during the night and whether such removal was effected under a claim of right or not -- was, in law, done dishonestly within the meaning of the I. P. C. and hence all the ingredients that are necessary to be proved for establishing the offence under Section 380 I. P. C. are shown to be present in this case.
It is contended by the learned counsel for the accused 1 and 3 that the act of the accused in removing the press from out of the custody of the complainant was done 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 judgments of the Supreme Court, K.N. Mehra Vs. State of Rajasthan (AIR 1957 SC 926), State of Maharashtra Vs. V. T. Umale [(1979) 4 SCC] have also been cited on behalf of the Opposite Parties in support of their submission that even temporary dispossession of property can constitute theft. In the case of Pyare Lal Bhargava Vs. State of Rajasthan (AIR 1963 SC 1094), similar view was expressed by the Supreme Court. In that case, the appellant, who was a government official had taken a file from his office at the instance of a contractor. Certain documents were removed from the file, replaced by a letter. On the question if such removal of file amounted to theft or not, it was held:-
'To commit theft one need not take movable property permanently out of the possession of another with the intention not to return it to him. It would satisfy the definition if he took any movable property out of the possession of another person though he intended to return it later on. We cannot also agree with learned counsel that there is no wrongful loss in the present case. Wrongful loss is loss by unlawful means of property to which the person losing it is legally entitled. It cannot be disputed that the appellant unauthorizedly took the file from the office and handed it over the Ram Kuma Ram. He had, therefore, unlawfully taken the file from the department, and for a short time he deprived the Engineering Department of the possession of the said file. The loss need not be caused by a permanent deprivation of property but may be caused even by temporary dispossession, though the person taking it intended to restore it sooner or later. A temporary period of deprivation or dispossession of the property of another causes loss to the other.'
30. These authorities have been primarily cited on the question as to whether there was any element of dishonesty on the part of the accused petitioners in obtaining the documents. I shall proceed on the basis that 'documents' come within the ambit of the expression 'movable property', as employed in Section 378 of the I.P.C. In Ishwarlal Girdharilal Parekh Vs. State of Maharashtra (AIR 1969 SC 40), dealing with the expression 'property' in Section 420 of the I.P.C. it was held that an order of assessment, received by an assessee would be 'property'. In Section 378 of the Code, the term employed is 'movable property', which has of narrower 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 the petitioners did not intend to cause any wrongful gain or wrongful loss. To come to this conclusion, I will have to come to a finding that the petitioners did not gain by having the copies of the documents, to which they were not legally entitled. Alternatively, the company has not suffered any loss by unlawful means of the documents involved.
32. Contention of the petitioners, drawing analogy from the 'cattle-cases', is that taking copies of certain documents from the custody of the company to the Court of Law cannot be said to have caused 'gain by unlawful means' to them or 'loss by unlawful means' to the Opposite parties. In Aradhun Mundul (supra), these expressions were construed to imply 'loss refers to the thing dishonestly taken, which, in this case, would mean the animals themselves,…..'. The relevant passage from this judgment has been quoted earlier in this judgement. Argument of the petitioners is that so far as the subject-documents are concerned, their value have not been impaired in any manner.
33. In the petition of complaint, the documents, the use of which is complained against can be categorized into two sets. As stated in paragraph 19 of the petition, documents specified against item nos. 29 to 54 of the schedule to the petition have been stolen/misappropriated from the premises of the company and these documents have not been returned to the company’s premises. Allegation of the complainant is that these documents are still in possession of the accused persons. At the present stage of the proceeding, it is not possible for me to come to a specific finding to the effect that there was no wrongful loss occasioned by alleged disappearance of these documents, which the complainant attribute to theft or misappropriation. The legal worth of these documents cannot be measured at the threshold. Thus, so far as these documents are concerned, I do not think the petition alleging theft or dishonest misappropriation of property can be quashed in this proceeding on the ground that the petition of complaint, as it is, does not disclose commission of any offence. The question as to whether the documents have any value or not would have to be considered from the perspective of the person having custody of the document and those seeking to use them. There cannot be a general principle for valuation of documents, and they cannot be equated with movable 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 landed within the territory of Pakistan. They were, inter-alia, charged with the offence of theft. Their defence was that they had strayed off-course losing their way, and landed on a field in Pakistan. From there, they had contacted officials of the Indian High Commissioner. In answer to the charge of theft, their case was that there was no dishonest intention on their part. Their defence was not accepted by the Trial Court, the first Appellate Court as also the High Court on revision. In appeal, the Supreme Court held:-
'10. The main contention of the learned counsel for the appellant, however, is that there is no proof in this case of any dishonest intention, much less of such an intention at the time when the flight was started. It is rightly pointed out that since the definition of theft requires that the moving of the property is to be in order to such taking, " such " meaning " intending to take dishonestly ", the very moving out must be with the dishonest intention. It is accordingly necessary to consider what " dishonest " intention consists of under the Indian Penal Code. Section 24 of the Code 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". Section 23 of the Code says as follows:
'‘Wrongful gain' is gain by unlawful means of property to which the person gaining is not legally entitled.
'Wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled.
A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property."
11. Taking these two definitions together, a person can be said to have dishonest intention if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means, of property to which the person so losing is legally entitled. It is further clear from the definition that the gain or loss contemplated need not be a total acquisition or a total deprivation but it is enough if it is a temporary retention 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.  Cal. 1017, and Queen-Empress v. Nagappa I.L.R.  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. Learned counsel for the appellant has urged that the courts below have treated absence of consent as making out dishonesty and have not clearly appreciated that the two are distinct and essential constituents of the offence of theft. The true position, however, is that all the circumstances of the unauthorised flight justify the conclusion both as to the absence of consent and as to the unlawfulness of the means by which there has been a temporary gain or loss by the use of the aircraft. We are, therefore, satisfied that there has been both wrongful, gain to the appellant and wrongful loss to the Government.'
35. In the judgment of K. N. Mehra (supra), importance has been accorded to the manner of acquisition of property, and the unauthorised use of such property itself has been held to be wrongful gain and the Government of India, being deprived of legitimate use of the aircraft during its retention by the accused cadets has been found to have suffered wrongful loss. On the basis of this ratio, it was argued that in the instant case, removal of the property from its lawful custodian itself was illegal, and no further material gain in quantitative terms was required to be established at this stage, to sustain the complaint case for further progress. According to the learned counsel for the opposite parties, those facts would have to be examined at the stage of trial.
36. I accept the submission of the learned counsel for the Opposite parties that the question as to whether taking of property, in the context of this case has resulted in wrongful loss or wrongful gain or not cannot be determined by this Court on the basis of statements made in the petition of complaint. To ascertain whether certain property has been taken dishonestly or not, intention to cause wrongful loss or wrongful gain are the essential elements. In the event movable properties in the form of documents are lost form the possession of their legitimate custodians, and copies of such documents are used by certain persons who are alleged to have taken such property, then the petition of complaint for taking cognizance for offence of theft and prayer for consequential punishment ought not to be quashed at the threshold. Thus, as regards the documents which the complainant alleges are no more in its custody, it is not possible for me to conclude in this proceeding that no offence is disclosed 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 custody of its custodian. One factual difference between the factual context of the four authorities pertaining to taking cattle to the pound and the decisions in the cases of K. N. Mehra (supra) and Pyare Lal Bhargava (supra) is that in the former genre of cases, cattle were eventually taken to a legitimate and neutral destination, being the pound and there was no allegation of any intermediate use, between the point of seizure and the pound. In the cases of K. N Mehra (supra) and Pyare Lal Bhargava (supra), there was utilization of the subject of theft- the aircraft and the file. In this proceeding also, complaint is of utilization of the documents. Whether using such copies in a legal proceeding would constitute the offences of theft or misappropriation or not cannot be adjudged at this stage, as it is not possible to conclude that the petition of complaint does not disclose the ingredients of such offences. But this finding of mine shall remain confined to the allegations in relation to documents which are stated to be missing from their legitimate custodians.
37. As regards the other set of documents, specified against serial no. 1 to 28 in the schedule, it is the complainant’s own case that the original documents are still with the persons who, under ordinary course, would have had possession of them. In respect of this set, the scope of consideration on the allegations of theft and misappropriation assumes a different dimension, in the light of petitioners’ contention that copying of information from original documents and using them in legal proceeding does not give rise to the offence of theft. It is also the petitioners’ case that information cannot be subject-matter of theft, as information per se does not answer the description of 'movable property', used in Section 378 of the IPC. The Opposite parties on the other hand contended that for making photocopies also, the documents must have had been removed from their ordinary place of storage, without consent of their lawful custodiansand such temporary removal also reflected dishonest intention on the part of the accused persons. In support of this submission, the decisions of the Supreme Court in the cases of K. N. Mehra (supra), Pyare Lal Bhargava (supra) and V. T. Umale (supra) have been relied upon.
38. It would be necessary to revert to the definition of documents to resolve the 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 removal of movable property?
39. No direct Indian authority has been cited by the learned counsel for the parties on this point. In the case of Pyare Lal Bhargava (supra), question arose in respect of temporary removal of a file, which was returned after replacing certain papers. But that was not a case of obtaining information contained in a document. Such act was held to be theft. On behalf of the petitioners, the decision of the US Supreme Court, Dowling (supra) and decision of the Supreme Court of Canada, R vs. Stewart (supra) were cited. Learned counsel for the Opposite parties has relied on the English authority, (I.T.C. Film Distributors Ltd. & Ors. Vs. Video Exchange Ltd. & Ors.). Since all these decisions are from Courts of common law countries having the same or similar jurisprudential foundation, I think ratio of these authorities would be of assistance to this Court for determining this controversy.
40. In Dowling (supra), distribution of 'bootleg phonorecords' containing copyright-protected materials were found by the Supreme Court of the United States not to be equated with theft, conversion or fraud. In R vs. Stewart (supra), a hotel employee was contacted for information on names, addresses and telephone numbers of other employees against monetary consideration. The employee, who was a security guard had reported the incident and the accused was charged with counselling a hotel employee to commit fraud and theft of information. Construing the provisions of Section 283(1) of the Criminal Code of that country, it was held that confidential information could not be treated to be property to be subject of theft.
41. There is one basic difference in the factual context of this case, compared with the context of Dowling (supra) and Stewart (supra). In neither of those two cases, the subject of theft was rendered in the form of a document. So far as 'information' per se is concerned, in my opinion the same does not constitute 'movable property' within the meaning of Section 22 of the I.P.C. The said provision gives an inclusive definition, to include every form of corporeal property. Even if we read intangible property into that definition, such property must be capable of being taken out of possession of the person who has the right to retain it in the context of Section 378 of the I.P.C. Movable property, forming subject-matter of theft, 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 or not in the petition of complaint, as it stands.
43. Under Section 378 of the I.P.C., there must be intention to take any movable property out of possession of any person without that person’s consent. That is the first requirement to attract the definition of theft. Secondly, such property must be moved in order to such taking. Even if the complaint petition is accepted as it is, it would reveal that the concerned petitioners have used the content of document nos. 1 to 28, and the documents are admittedly lying where they ought to. The complainant is making out a case that the documents were removed for photocopying by the accused persons. No case has been made out in the petition of complaint that the information contained in the documents per se had any legally protectable feature fitting the characteristic of property. Theft has been complained of in relation to taking the property in the form of documents temporarily out of possession of the complainant.
44. As regards document nos. 1 to 28, the ultimate taking has been in respect of their content, comprising of letters, figures and marks, which are arranged in a particular formation to give intelligible information. Subject of taking is the information contained in such documents. If I take the petition of complaint as it is, then for the purpose of such taking, the documents may have had been shifted from their original place of storage to the place of copying temporarily. But it would be logical to infer that the purpose of such temporary or intermediate taking was to obtain the information contained in such documents only, which does not have any protectable interest in the context of this case, which is a criminal complaint of the offence of theft. The act of the accused persons may give rise to action in tort, for breach of confidential information or trade secrets, but I do not find any criminal element or ingredients of the offence in the acts alleged to have been committed by the accused petitioners in respect of document nos. 1 to 28. No case of any copyright violation has been made out either, which might give rise to penal offence in cases of unauthorized reproduction of creative content subject to certain exceptions. Unlike the aircraft in the case of K. N. Mehra (supra) or the file in the case of Pyare Lal Bhargava (supra), in which subjects of taking were the aircraft and the correspondence 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. Ordinarily, the principle embodied in Section 95 of the I.P.C., placing acts causing slight harm outside the ambit of specified offences would be set up as a defence. But in this case, having regard to the extraordinary nature of the allegations, this principle in my opinion can be applied to test as to whether the offence of theft has been committed or not.
45. On behalf of the Opposite Parties four examples were cited to demonstrate that a finding of this nature would lead to societal injury and would have disastrous consequence. The first illustration relates to abstraction of Board examination papers with the intention to copy and place them back. The second example was abstraction of a judgment of a Court before the same is delivered. Third example referred to was case diaries and content of investigation relating to a criminal offence. Fourth is the data stored in or displayed on a credit card. These are hypothetical situations and would have required examination if a specific case was brought in that context. But considering the unique features of this case, I shall deliberate upon these illustrations briefly. In all these cases, it would theoritically be possible for someone to memorise the content, or the more important informations contained in them and use the material thereafter. In the event an employee of a printing press where the question papers of a public examination are printed manages to memorise some questions and thereafter make them available outside, would that act constitute theft? Same would be the question, as regards judgment of a Court, but in relation to leaking of undelivered judgment of a Court, that possibly would amount to interference with administration of justice, which was found to be the proper course in the case of (I.T.C. Film Distributors Ltd. & Ors. Vs. Video Exchange Ltd. & Ors.) reported in [1982) (CH) 431]. In this English decision, filching of a litigant’s documents from within the Court precinct was held to be interference with administration of justice. As regards credit card data, if somebody merely remembers the data and does not use them, in the absence of any specific legislation, such an act may not constitute an offence. But if such information is subsequently used for making purchase or withdrawing cash, those acts may independently constitute theft. Similarly, unauthorised entry by breaking open a house 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 on consequences which a judgment might impact the society. The course which is normally adopted in the judicial decision making process is to filter out these thoughts and concentrate on the statutory provisions whose interpretation may be necessary, for determining a particular legal controversy, because in what manner a law would impact the society is within the domain of the legislature and the duty of the Court is to construe the law, which is validly enacted.
47. The thoughts which had crossed my mind and which I had to filter out while dealing with this case is that there has been significant disclosure of misdeeds in the society committed by persons in authority through leaked information, mainly by the media. Criminalizing such acts of disclosure might ultimately cause social harm. On behalf of the Opposite parties, however, it was rightly argued that in the event subsisting legislation outlaws such unauthorized access and disclosure, the Court cannot override such legislative acts on its own perception as to what would be good for the society. Thus I have confined my scrutiny in this matter solely in the perspective of the provisions of Indian Penal Code and judicial pronouncements construing the provisions thereof to come to this finding. Going back to the four illustrations which were cited by the Opposite parties, in the event because of my interpretation of Section 378, those acts become decriminalized, and it is felt that such decriminalization would lead to social evils, the course would have to be corrected by legislative measures, provided of course my view is ultimately sustained by the Appellate Court, if any of the parties choose to carry this judgment up in appeal.
48. So far I have solely referred to the provisions of Section 378 of the I.P.C. and have come to a conclusion that in cases where the subject documents are still in possession of their legitimate custodians, the allegations contained in the petition of complaint cannot be sustained on the ground that the same does not disclose commission of the offences alleged. As regards the documents, copies of which are not with their legitimate custodians, in my opinion the offence of theft has been made out in the petition of complaint. The same view shall prevail as regards two other offences alleged against the petitioners in the petition of complaint. The allegations relating to 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 petitioners that prior common concert or preplanning amongst the accused persons would have to be spelt out and nothing is on record to sustain meeting of minds to attract the provisions of criminal conspiracy. In this regard the provisions of Section 10 of the Evidence Act, 1872 was referred to and it was argued that unless overt acts in furtherance of the conspiracy are specifically alleged, case of criminal conspiracy cannot be sustained.
50. In support of this argument, the judgments of the Supreme Court in the cases of Lennart Schussler & Anr. Vs. The Director of Enforcement & Anr. (AIR 1970 SC 549), Neelu Chopra Vs. Bharti [(2009)10 SCC184] and Ashok Chaturvedi & Ors. Vs. Shitul H. Chanchani & Anr. (AIR 1988 SC 2796) have been relied upon. It is also the case of the petitioners that since the documents were not meant to be used for any illegal object, there could not be any criminal conspiracy in obtaining them. The response of the Opposite parties on this point is that considering the stage at which the petitioners have approached this Court, sufficient particulars of commission of offence of criminal conspiracy has been disclosed in the petition of complaint. Referring to the decision of the Supreme Court in the case of Rajesh Bajaj Vs. State NCT of Delhi & Ors. [(1999)3 SCC 259], it has been submitted that it is not necessary that a complaint should contain verbatim all the elements of the offence the complainant is alleging and if factual foundation of the offence is laid down, that would be sufficient for the Court to proceed with taking cognizance of the offence and issue process. Learned counsel for the Opposite Parties have also referred to the decision in the Supreme Court in the case of Tarun K. Shah Vs. C.R. Alimchandani & Ors. [(2001)9 SCC 728] that it is not necessary to spell out the role of each accused in connection with allegations of conspiracy. The three other decisions on which learned counsel for the opposite parties have relied upon on the same point are :-
(a) Ajay Aggarwal Vs. Union of India [(1993)3 SCC 609]
(b) Ram Narayan Popli Vs. CBI [(2003)3 SCC 641
(c) Yash Pal Mittal Vs. State of Punjab [(1977)4 SCC 540
In the case of Yash Pal Mittal (supra) it has been held:-
'The offence of criminal conspiracy under section 120A is a distinct offence introduced for the first time in 1913 in 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 twoof the conspirators without the knowledge of the others it will not affect the culpability of those [(1968) 2 S.C.R. 528].
51. The argument made on behalf of the petitioners on this point, however, is interlinked with the main offences alleged to have been committed. Once, and if, case of commission of offences theft, dishonest misappropriation of property or dishonestly receiving stolen property is found to have been made out in the petition of complaint, I do not think in the facts of this case, the allegations pertaining to commission of the offence of criminal conspiracy can be isolated for ascertaining as to whether prayer for quashing the complaint of the Opposite party no. 1 in relation to this particular offence can be consi
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dered. It would not be possible for this Court to come to a final conclusion to the effect the said offence has not been committed, in relation to accused persons against whom, it is found that the petition of complaint discloses the offences under sections 379, 403 and 411. Examining the petition of complaint, if I proceed on the basis that the petition of complaint discloses the ingredients of the aforesaid three substantive offences, then the case of the complainant cannot be quashed in isolation in relation to the offence of criminal conspiracy. Petitioners’ contention is that it has not been stated in the petition the factum of prior agreement and no particulars has been given as to how and in what manner there was criminal conspiracy. In my opinion, however broad indications in that regard have been given in the petition prevent invalidation of the complaint petition itself at this stage vis--vis this specific offence. The test laid down by the Supreme Court in the case of Rajesh Bajaj (supra) stands satisfied on this count. 52. Now I shall deal with the question of taking cognizance and issue of summons. Referring to the judgment of the Supreme Court in the case of Harishchandra Prasad Mani Vs. State of Jharkhand & Anr. [(2007)15 SCC 494], it was argued on behalf of the petitioners that no cognizance can be taken on mere asking or suspicion. Learned counsel for the petitioners also referred to the judgments the Supreme Court in the cases of Chandra Deo Singh Vs. Prokash Chandra Bose (AIR 1963 SC 1430), Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors. [AIR 1988 SC 128] and GHCL Employees Stock Option Trust Vs. India Infoline Limited [(2013)4 SCC 505] to contend that summoning an accused 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. Th Jwart & 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 point reference has been made to a judgment of this Court delivered in the case ICICI Bank Vs. Maikaal Fibres Limited & Ors. [(2006)3 CHN 365]. In particular, reliance has been placed on the following passage of this judgment:- 'It would appear from the chain of allegations spelt out in the complaint together with the initial testimony of the witnesses that at least the foundation of the offences complained of is firmly laid--it is just not all frivolous and fanciful. There appears to be prima facie materials for the complainant for the satisfaction of the Court to set the wheel of criminal justice moving by issuing of the process and see to the end of the dispute by means of the trial on the basis of material evidence both parties may adduce. Conversely, to my mind, it cannot be said that, the allegations even taken on their 'face value' do not at all constitute the offence so as to nip the process in the bud. One wonders, if justice itself then becomes the casualty. Indeed, the fact of the matter is, there may be more than what meets the eyes, such as, conduct of the parties and attending circumstances entwined with the transactions in question which only the material evidence at the trial can really elicit. This is not the stage for such a probe. After all, call it conspiracy, inducement, fraud, 'mens rea' or misrepresentation and so on, they are all basically the working of the inner mind which comprehensive evidence at the full trial, such as in a case like this, can really fathom.' 54. On the procedural aspect I do not find any fatal error committed by the learned Magistrate, provided of course a case of commission of offences under the aforesaid provisions of the I.P.C. has been made out in the petition of complaint, and the initial deposition of the two witnesses. On behalf of the petitioners stress was given on the fact that the learned Magistrate had derived satisfaction from an affidavit filed by the complainant and an affidavit is not evidence, having regard to the provisions of Section 1 of the Indian Evidence Act 1872. But the learned Magistrate did not solely rely on the affidavit and two witnesses were examined. The first witness had in his initial deposition expressed apprehension that all the accused persons in connivance with each other had procured those documents by theft. The learned Magistrate found 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 ought not to render the petition of complaint, invalid. I accept the proposition of law as outlined in the case of GHCL Employees Stock Option Trust Vs. India Infoline Limited (supra) that summoning of accused persons in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. But none of the authorities cited by the petitioners lay down that the learned Magistrate ought to have analysed the petition of complaint deeper and at that stage the order should have been supported by elaborate reason on his decision to issue summons after conducting enquiry under Section 202 of the Code. On this point also various authorities were cited on behalf of the parties, but I do not consider it necessary to refer to those authorities as the principles laid down in those authorities have already been considered by me. I would also like to clarify that these observations of mine, as regards validity of the orders by which cognizance has been taken and process has been directed to be issued, are being made on the presumption that the petition of complaint on the face of it discloses the offences alleged to have been committed. 55. Considering the petition of complaint, I am of opinion that the allegations in respect of one set of documents (i.e. serial nos. 1 to 28 of the Schedule), the originals of which are still with their lawful custodians, do not constitute the offence of theft or dishonest misappropriation of property. But so far as the other set of documents is concerned, it cannot be held at this stage that no offence has been disclosed. From the petition of complaint, I find that the complainant has specified the accused persons who have used these two sets. The movable properties, comprising of 54 documents which, it is alleged are subjects of the three substantive offences- theft, dishonest misappropriation of property and receiving stolen property are segregable. So far allegations pertaining to the documents specified against serial nos.1 to 28, the petition of complaint does not disclose the ingredients of the three aforesaid offences. But as regards allegations concerning documents specified against serial nos. 29 to 54 are concerned, the petitioners’ case is not sustainable. The petition of complaint discloses the ingredients of the offences alleged to have been committed in respect of this set of documents. 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 groups of accused persons. The offence of criminal conspiracy has been alleged against all the accused persons. But the involvement of the individual accused persons in relation to allegations pertaining to these two categories of documents, on a plain reading of the petition of complaint, and in particular paragraphs 7 to 11 and 21 thereof appears to be segregable. The result of such segregation would be that the petition of complaint would not survive in respect of offences alleged in respect of documents specified against serial nos. 1 to 28 of the schedule to the petition of complaint, whereas the case could progress so far allegations in relation to documents specified against serial nos. 29 to 54 are concerned. The petition of complaint ought to fail against the accused persons who are found to be involved in using copies of documents itemized against serial nos. 1 to 28 of the petition of complaint. 58. Accordingly, the orders passed on 6th October and 8th October 2010 in case number C-30907 of 2010 by the learned Metropolitan Magistrate, 10th Court, Calcutta are set aside. Let the lower court records be sent back to the learned Court below along with a copy of this judgment for taking further steps in accordance with law in the light of this judgment. 59. The application stands disposed of in the above terms.