2015 Supreme(Cal) 245

CALCUTTA HIGH COURT
ANIRUDDHA BOSE, J.
Adventz Investments and Holdings Limited & others – Appellant
Vs.
Birla Corporation Limited & another – Respondents
C. R. R. No. 323 of 2011
Decided On : 15/05/2015

Headnote:

Petitioners challenged a petition of complaint lodged before 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.

Fact of the Case:

The complaint's case 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 Nos. 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.

Finding of the Court:

The Court observed that 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, the Court was 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. The Court held 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 adjudged at this stage, as it is not possible to conclude that the petition of complainant does not disclose the ingredients of such offences.

Issues: 1. Whether the petition of complaint discloses the ingredients of the offence of theft or not? 2. Whether the petition of complaint discloses the offence of criminal conspiracy or not? 3. Whether the Magistrate has followed the proper procedure in issuing the process or not?

Ratio Decidendi: 1. Theft: * The Court held that it is not possible 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 Court found that 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. * The Court observed that the 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 (AIR 1957 SC 369) (supra) and Pyare Lal Bhargava (AIR 1963 SC 1094) (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. * The Court held that 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 complainant does not disclose the ingredients of such offences. But this finding of the Court shall remain confined to the allegations in relation to documents which are stated to be missing from their legitimate custodians. * As regards the other set of documents, specified against serial Nos. 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. * The Court held that the subject of taking is the information contained in such documents. If the Court takes the petition of complainant 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 the Court did 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. 2. Criminal Conspiracy: * The Court held that 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 complainant, then the case of the complainant cannot be quashed in isolation in relation to the offence of criminal conspiracy. 3. Procedure followed by Magistrate: * The Court held that 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. The Court did not find any fundamental error on the part of the learned Magistrate on having followed this procedure.

Final Decision: The Court set aside 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 and directed the lower court to send the records back along with a copy of this judgment for taking further steps in accordance with law in the light of this judgment.