CRL.M.C./4527/2015 of RAJESH GOSAIN & ORS Vs STATE OF NCT OF DELHI & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.M.C. 4527/2015

Date of Decision : January 29[th], 2016

RAJESH GOSAIN & ORS

..... PetitionerThrough:Mr.Anurag Ahluwalia, Adv.

versus

STATE OF NCT OF DELHI & ANR..... RespondentsThrough:Mr.Vinod Diwakar, APP.Mr.Rajat Wadhwa and Mr.KunalAggarwal, Advs. for R-2.Inspector Deveshwari, PS: EOW.

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1.The present petition under Section 482 Cr.P.C. has been filedby the petitioners, namely, Mr. Rajesh Gosain, Sh. Abhishek Arvind,Sh. Alok Gupta, Sh. Mohit Kothiwal, Pankaj Johari and Sh. NirajJohari for quashing of FIR No.154/2011 dated 19.08.2011, underSections 66/66C of the Information Technology Act, 2000 andSections 408/420/120B/511 IPC, registered at Police Station E.O.W.on the basis of the Memorandum of Understanding (MOU) betweenthe petitioners and respondent no.2, namely, Mr. Shailesh Agarwal,

authorized representative of M/s Vogueserv International Pvt. Ltd.,Noida (“Company”) on 17.10.2015.

2.Learned Additional Public Prosecutor for respondent-Statesubmitted that the respondent no.2, present in the Court has beenidentified to be the authorized representative of the complainantCompany in the FIR in question by Inspector Deveshwari.

3.The factual matrix in the present case is that complaint wasmade by Sh. Vijay Govind Saxena, General Manager(H.R.) of M/sVogueserv International Pvt. Ltd., to the Additional Commissioner ofPolice E.O.W. against the petitioners/accused. The accused personswere ex-employees of the Company and they entered into criminalconspiracy with each other and committed breach of trust bycommitting data theft from the system, network and emails of theCompany and also took wrongful possession of very important andconfidential files and records etc. all of which were entrusted to themin their official capacity and used the same for their wrongful gaincausing corresponding loss to the Company. During the second weekof July 2011, petitioner nos. 1, 2 & 4 had resigned from the servicesof the complainant Company and despite the notice period given by

them, they absconded without reporting. Later it was found that Mr.Abhishek Arvind had deleted all confidential data from the officelaptop which was in his possession. The said three petitionersinstigated petitioner no.3 to join them in the conspiracy of runningtheir own business and that they also took secret passwords for emailand related networks for the reason of keeping watch over theCompany’s confidential data. They also asked petitioner no.3 forsharing the access of D-drive of Mr. Ajendra Agrawal with petitionerno.1 so that he can misappropriate the confidential data of thecompany.

In the year 2012, the respondent no.2 filed civil suit againstthe petitioners before this Court being CS(OS) No. 1436 of 2012 andvide order dated 18.05.2012 this Court restrained the petitioners fromusing the data of respondent no.2 in respect of the companiesmentioned in the said suit. Thereafter, the parties entered into anamicable settlement.

4.Respondent No.2 present in the Court, submitted that thedispute between the parties has been amicably resolved. As per theMOU, both the parties have on the intervention of the common

Business friends, arrived at the present amicable settlement out oftheir free will and consent without any force, compulsion or coercionfrom any corner and are signing the same after understanding thecontents thereof. The parties have agreed that the petitioners shall paya total amount of Rs. 14,00,000/- towards full and final settlement torespondent no.2. It has also been agreed that the petitioners oranybody acting on their behalf shall not contact the customers ofrespondent no.2. It is also agreed by the parties that the petitionersshall neither use nor possess or transfer the confidential data or thetrade secrets of respondent no.2 in any manner whatsoever. However,Pankaj Johari-petitioner no.5 shall be entitled to pursue his legalremedies for recovery of his dues from Company namely “StraussInnovations”. It has been further agreed between the parties that uponthe petitioners fulfilling their obligations under this agreement, theparties shall together file an application under Order 23 Rule 3 CPCfor decreeing the civil suit filed by the respondent no.2 andsimultaneously, the petitioners shall file petition in this Court forquashing the FIR in question. Respondent no. 2 affirmed the contentsof the aforesaid MOU and of his affidavit dated 29.10.2015. In the

affidavit, the respondent no.2 has stated that he has no objection if theFIR in question is quashed. All the disputes and differences have beenresolved through mutual consent. Now no dispute with petitionerssurvives and so, the proceedings arising out of the FIR in question bebrought to an end.Statement of the respondent No.2 has beenrecorded in this regard in which he stated that he has entered into acompromise with the petitioners on behalf of the Company and hassettled all the disputes with them. He further stated that he has noobjection if the FIR in question is quashed.

5.In Gian Singh v. State of Punjab (2012) 10 SCC 303 ApexCourt has recognized the need of amicable resolution of disputes incases like the instant one, by observing as under:-

“61.In other words, the High Court must considerwhether it would be unfair or contrary to the interestof justice to continue with the criminal proceedingsorcontinuationofcriminalproceedingswouldtantamount to abuse of process of law despitesettlement and compromise between the victim andthe wrongdoer and whether to secure the ends ofjustice, it is appropriate that criminal case is put to anend and if the answer to the above question(s) is inthe affirmative, the High Court shall be well withinits jurisdiction to quash the criminal proceedings.”

6.The aforesaid dictum stands reiterated by the Apex Court in

recent judgment in Narinder Singh v. State of Punjab (2014) 6 SCC

466. The relevant observations of the Apex Court in Narinder Singh

(Supra) are as under:-

“29. In view of the aforesaid discussion, we sum upand lay down the following principles by which theHigh Court would be guided in giving adequatetreatment to the settlement between the parties andexercising its power under Section 482 of the Codewhile accepting the settlement and quashing theproceedings or refusing to accept the settlement withdirection to continue with the criminal proceedings:

29.1 Power conferred under Section 482 of the Codeis to be distinguished from the power which lies inthe Court to compound the offences under Section320 of the Code. No doubt, under Section 482 of theCode, the High Court has inherent power to quash thecriminal proceedings even in those cases which arenot compoundable, where the parties have settled thematter between themselves. However, this power is tobe exercised sparingly and with caution.

29.2. When the parties have reached the settlementand on that basis petition for quashing the criminalproceedings is filed, the guiding factor in such caseswould be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court.While exercising the power the High Court is to forman opinion on either of the aforesaid two objectives.29.3. Such power is not to be exercised in thoseprosecutions which involve heinous and seriousoffences of mental depravity or offences like murder,rape, dacoity, etc. Such offences are not private innatureandhaveaseriousimpactonsociety.Similarly, for the offences alleged to have beencommitted under special statute like the Prevention ofCorruption Act or the offences committed by publicservants while working in that capacity are not to be

quashed merely on the basis of compromise betweenthe victim and the offender.29.4. On the other hand, those criminal cases havingoverwhelmingly and predominantly civil character,particularlythosearisingoutofcommercialtransactions or arising out of matrimonial relationshipor family disputes should be quashed when the partieshave resolved their entire disputes among themselves.

7.The inherent powers of the High Court ought to be exercised to

prevent the abuse of process of law and to secure the ends of justice.The respondent no.2 agreed to the quashing of the FIR in question andhas stated that the matter has been settled out of his own free will. Asthe matter has been settled and compromised amicably, so, therewould be an extraordinary delay in the process of law if the legalproceedings between the parties are carried on. So, this Court is ofthe considered opinion that this is fit case to invoke the jurisdictionunder Section 482 Cr.P.C. to prevent the abuse of process of law andto secure the ends of justice.

8.The incorporation of inherent power under Section 482 Cr.P.C.is meant to deal with the situation in the absence of express provisionof law to secure the ends of justice such as, where the process isabused or misused; where the ends of justice cannot be secured;where the process of law is used for unjust or unlawful object; to

avoid the causing of harassment to any person by using the provisionof Cr.P.C. or to avoid the delay of the legal process in the delivery ofjustice.Whereas, the inherent power is not to be exercised tocircumvent the express provisions of law.

9.It is settled law that the inherent power of the High Court underSection 482 Cr.P.C. should be used sparingly. The Hon’ble ApexCourt in the case of State of Maharashtra through CBI v. VikramAnatrai Doshi and Ors. MANU/SC/0842/2014 and in the case ofInder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009has observed that powers under Section 482 Cr.P.C. must beexercised sparingly, carefully and with great caution. Only when theCourt comes to the conclusion that there would be manifest injusticeor there would be abuse of the process of the Court if such power isnot exercised, Court would quash the proceedings.

10.It is well settled law that where the High Court is convincedthat the offences are entirely personal in nature and therefore do notaffect public peace or tranquillity and where it feels that quashing ofsuch proceedings on account of compromise would bring about peaceand would secure ends of justice, it should not hesitate to quash them.

In such cases, pursuing prosecution would be waste of time andenergy. Non-compoundable offences are basically an obstruction inentering into compromise.In certain cases, the main offence iscompoundable but the connected offences are not. In the case of B.S.Joshi and others v. State of Haryana and another 2003 (4) SCC 675the Hon’ble Apex Court observed that even though the provisions ofSection 320 Cr.P.C. would not apply to such offences which are notcompoundable, it did not limit or affect the powers under Section 482Cr.P.C. The Hon’ble Apex Court laid down that if for the purpose ofsecuring the ends of justice, quashing of FIR becomes necessary,section 320 Cr.P.C. would not be bar to the exercise of power ofquashing.In the nutshell, the Hon’ble Apex Court justified theexercise of powers underSection 482 Cr.P.C. to quash theproceedings to secure the ends of justice in view of the special factsand circumstances of the case, even where the offences were non-compoundable.

In the light of the aforesaid, this Court is of the view thatnotwithstanding the fact the offence under Section 511 IPC is non-compoundable offence, there should be no impediment in quashing

the FIR under this section, if the Court is otherwise satisfied that thefacts and circumstances of the case so warrant.

11.In the facts and circumstances of this case and in view ofstatement made by the respondent No.2, the FIR in question warrantsto be put to an end and proceedings emanating thereupon need to bequashed.

12.Accordingly, this petition is allowed and FIR No.154/2011dated19.08.2011,underSections66/66CoftheInformationTechnologyAct,2000andSections408/420/120B/511IPC,registered at Police Station E.O.W. and the proceedings emanatingtherefrom are quashed against the petitioners.

13.This petition is accordingly disposed of.

JANUARY 29, 2016dd

(P.S.TEJI)JUDGE