2015 (5) TMI 1184 - HC - Companies Law

Whether the petition of complaint on the face of it discloses commission of offence of theft or dishonest misappropriation of property or not? HELD THAT - 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. 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, it is found 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. Application disposed off.

Summary

Issues Involved:
1. Allegation of theft and dishonest misappropriation of documents.
2. Criminal conspiracy among the accused.
3. Validity of the Magistrate's order taking cognizance and issuing process.
4. Whether documents and information can be considered "movable property" under IPC.
5. Whether the complaint was motivated by mala fide intentions.

Detailed Analysis:

1. Allegation of Theft and Dishonest Misappropriation of Documents:
The complaint alleged that the accused used confidential documents of the company without consent, constituting theft and dishonest misappropriation. The documents were categorized into two sets: documents still in the company's possession (serial nos. 1-28) and those missing (serial nos. 29-54). The court held that the allegation of theft and misappropriation was valid for documents no longer in the company's possession (serial nos. 29-54) but not for those still retained by the company (serial nos. 1-28).

2. Criminal Conspiracy Among the Accused:
The complaint included allegations of conspiracy among the accused to commit theft and misappropriation. The court noted that the complaint provided sufficient details to suggest a prima facie case of conspiracy. The court referred to precedents indicating that it is not necessary to spell out the role of each accused in detail at the stage of taking cognizance.

3. Validity of the Magistrate's Order Taking Cognizance and Issuing Process:
The court scrutinized the procedure followed by the Magistrate, noting that the Magistrate had conducted an inquiry under Section 202 of the CrPC and examined witnesses before issuing the process. The court found no fundamental error in the procedure, although it directed the Magistrate to re-examine the issuance of process in light of the judgment's findings.

4. Whether Documents and Information Can be Considered "Movable Property" Under IPC:
The court analyzed whether documents and the information contained therein could be considered "movable property" under Section 378 of the IPC. It concluded that while documents themselves could be movable property, the information they contain does not fit this definition. Thus, the temporary removal of documents for copying information did not constitute theft for documents still in possession of the complainant (serial nos. 1-28).

5. Whether the Complaint Was Motivated by Mala Fide Intentions:
The petitioners argued that the complaint was filed with mala fide intentions to expand the scope of a testamentary suit and perpetuate control over an estate. The court found no outstanding case of mala fide intention solely based on the allegations in the complaint and other pending proceedings. It held that the complaint disclosed sufficient grounds for proceeding against the accused for documents no longer in possession of the company.

Conclusion:
The court declined to quash the complaint but set aside the orders by the Magistrate on 6th and 8th October 2010, directing the Magistrate to re-examine the issuance of process against the accused in light of the judgment. The complaint was found to disclose offenses concerning documents no longer in the company's possession but not for those still retained by the company.