Senthilvelkumar v. State Through SHO & Anr.

1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘CrPC’) challenging the order dated 28.11.2020 passed by the learned Additional Chief Metropolitan Magistrate-01, New Delhi District, Patiala House Courts, New Delhi in Case NO. 13202/2019, titled as Air Works India Engineering Pvt. Ltd. v.

Airport to register the FIR under the appropriate Sections of law on the complaint filed by the respondent no.2 herein, that is, the complainant, and take appropriate action thereon. Factual Background

2. It is the case of the complainant that the petitioner was working as a Junior Engineer with the complainant, and after obtaining various promotions, was last designated as Deputy Manager, from which position he resigned on 17.06.2019. In the course of his employment, the petitioner was entrusted with the records pertaining to company’s customers and their aircraft, including the man power list, man hour workout files, work packs, commercial terms submitted under customers request for proposal, planning and other relevant documents for engineering services to be provided on the data from time to time. This information was confidential in nature and was stored in the official computer system allotted to the petitioner.

3. It is alleged that the petitioner has unauthorizedly copied the said confidential data from the official computer system into his own personal hard disk, and the said hard disk remained in his possession till it was returned by him to the representative of the company. On resignation, the petitioner wanted to join another company. Submissions of the learned counsel for the petitioner

4. The learned counsel for the petitioner submits that in the application filed under Section 156(3) of the CrPC, the respondent no.2/complainant had not made any averment of the steps taken under Section 154 of the CrPC, and most specifically Section 154(3) of the CrPC. Placing reliance on the judgment of the Supreme Court in Priyanka Srivastava and Another v. State of Uttar Pradesh and Others, (2015) 6 SCC 287, he submits that in the absence of such averment, the application filed under Section 156(3) of the CrPC was not maintainable and was liable to be dismissed.

5. He further submits that the complaint has been filed by the respondent no.2 with a mala fide intent as the petitioner had resigned from his services and was demanding his overdue salary.

6. He submits that the respondent no.2 had threatened the petitioner of implicating him in a false case and had issued a Show Cause Notice dated 21.06.2019, which was replied to by the petitioner vide letter dated 21.06.2019 expressing his regret on copying of the data onto a hard disk. Instead of accepting the apology, which was written at the instance of respondent no.2 itself, respondent no.2 took the petitioner to his native residence and from there, recovered the hard disk.

7. He submits that copying of the data onto a hard disk is a general practice adopted by all the employees of respondent no.2.

8. He submits that a civil dispute should not be allowed to be converted into a commercial prosecution thereby jeopardizing the career of the petitioner. In support, he places reliance on the judgment of the Supreme Court in the State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Supp (1) SCC 3. Submissions of the learned APP and learned counsel for the Respondent no.2

9. On the other hand, the learned APP and learned counsel for respondent no.2 submit that the respondent no.2 had filed a complaint under Section 200 of the CrPC along with an application under Section 156(3) of the CrPC. In the complaint filed, the respondent no.2 had averred that it had, before filing of the complaint, filed a written complaint dated 27.08.2019 to acp-cybercell-dl@nic.in and acpdiu-swddl@delhipolice.gov.in.. As no action thereon was taken, the respondent no.2 had then sent a copy of the complaint to the DCP Cyber Crime Cell, ACP Cyber Crime Cell, and to the Commissioner of Police, by way of speed-post. It is only when no action was taken on these complaints, that the complaint under Section 200 of the CrPC along with an application under Section 156(3) of the CrPC was filed. They submit that this meets the requirement of Section 156(3) of the CrPC as laid down by the Supreme Court in Priyanka Srivastava (Supra).

10. On the allegation of mala fide, the learned counsel for respondent no.2 submits that this will be a matter of investigation and it cannot be pre-judged at this stage. He further submits that the data has been recovered from a personal hard disk recovered from the petitioner. Analysis and Conclusion

11. I have considered the submissions made by the learned counsels for the parties.

12. In the present case, the complaint filed by the respondent no.2 under Section 200 of the CrPC inter alia states as under:- “11. That in aforementioned circumstances the Complainant sent a written Complaint dated 27.08.2019 to cybercell-dl@nic.in and acpdiuswd-dl@delhipolice.gov.in. The office copy of the said Complaint is annexed herewith as

ANNEXURE-J. l[2].That when no action is taken on the said Complaint, the Complainant sent a Copies of the said Complaint to the office of DCP Cyber Crime Cell, DCP Office Complex, Sector-19, Dwarka, New Delhi-110075; the office of ACP Cyber Crime Cell, DCP Office Complex, Sector-19, Dwarka, New Delhi -110075and Office of Commissioner of Police, Police Head Quarters, ITO, Delhi on 06.09.2019 via speed post. The Original the postal receipts are annexed herewith as