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TMI Blog2023 (7) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided in Chapter XIV of the Act. A detailed mechanism is provided under the Act. It deals with the power of the Registrar of Companies to conduct an enquiry and submit a report to the Central Government. The Central Government may, on such report or on a report of any inspector appointed by the Central Government may, direct an investigation by SFIO. The Central Government may also direct such an investigation, suo motu, if it is in the public interest. Section 212 of the Act provides for an investigation by SFIO. As regards the offence under Section 415 of the Indian Penal Code, there is no deception at the inception. It may at best amount to a breach of promise. Hence, cheating is not made out since the petitioner was admittedly working in the company for two years. Further, the offences under Sections 378, 403, 405, 408, 120 and 425 of the Indian Penal Code are not made out. This Court finds that the allegations that the confidential information and certain technical know-how were taken away by the petitioner are vague. The allegation of misuse of information and making personal gain with the said information would, at best, make the petitioner liable civilly to the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sake of convenience] for management of ships; that around June 2020, the petitioner connived and colluded with its customer Daitoh and made them terminate their agreement with the respondent's parent company for ship management; that on 12.06.2020, the said Daitoh had issued a termination notice; that even while he was working with the respondent without the knowledge of the respondent incorporated a separate company as early as in June 2020 by the name 'NSK Ship Management Pvt. Ltd.,' which had an identical name and operating pattern as that of the respondent's company; that on 15.07.2020, the petitioner was appointed as Director in the said company although he was in employment with the respondent company; that thereafter the respondent came to know that Daitoh had entered into an agreement for the management of the vessels with the company which was incorporated by the petitioner; that the petitioner who was aware of the technical know-how, operational intellect, systems and contracts, entire business planning material and other software has committed theft of the same; that he had also lured the other employees and had given jobs to them in the new company; t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 452 of the Act is quasi-criminal in nature and is only meant to provide a speedy mechanism for the recovery of property, the fact that the petitioner had returned the property would absolve him from the offence under Section 452 of the Act. The learned counsel relied upon the following Judgments in support of his submissions; (i)Judgment of the Honourable Supreme Court in Abhilash Vinodkumar Jain Vs. Cox Kings (India) Ltd., Ors. reported in (1995) 3 SCC 732 ; (ii)Judgment of the Honourable Supreme Court in Lalita Jalan Anr. Vs. Bombay Gas Co.Ltd. Ors reported in (2003) 6 SCC 107 ; (iii)Judgment of the Honourable Supreme Court in Shubh Shanti Services Ltd. Vs. Manjula S. Agarwalla Ors. reported in (2005) 5 SCC 30 ; (iv)Judgment of this Court in Doraisamy Ors. Vs. The state rep. by the Inspector of Police Anr. in Crl.O.P.No. 10969 of 2017 dated 25.04.2019 ; (v)Judgment of this Court in Upendra Hosdrug Sundar Kamath Ors. Vs. K.G.Inian in Crl.O.P.No. 18951 of 2017 dated 12.01.2022 ; (vi)Judgment of the High Court of Karnataka at Bengaluru in M.Gopal Vs. Sri Ganga Reddy in Criminal Petition No. 3550 of 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taka Vs. M.Devendrappa and another reported in (2002) 3 SCC 89 ; (iii)Judgment of the Honourable Supreme Court in Rajeshbhai Mujilibhai Patel and Others Vs.State of Gujarat and another reported in (2020) 3 SCC 794 ; (iv)Judgment of the Honourable Supreme Court in Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Limited reported in (2016) 10 SCC 458 ; (v)Judgment of the Honourable Supreme Court in Neeharika Infrastructure Pvt.Ltd., Vs. State of Maharashtra and Others reported in (2021) SCC Online SC 315 ; (vi)Judgment of the Honourable Supreme Court in State Vs. M.Maridoss and Another reported in (2023) 4 SCC 338 ; (vii)Judgment of the Honourable Supreme Court in State of Maharashtra Trhu Cbi Vs. Vikram Anantrai Doshi reported in (2014) 15 SCC 29 ; 5. This Court finds that the allegation with regard to the offence under Section 452 of the Act is that the petitioner had retained the laptop. This offence is quasi criminal in nature. It is well settled that the said offence has been incorporated only to provide a speedy remedy for the company to retrieve its property. Admittedly, the petitioner sent the laptop on 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation, suo motu, if it is in the public interest. Section 212 of the Act provides for an investigation by SFIO. What is relevant for the purpose of discussion in the instant case is Section 212(6)(ii) of the Act, which is extracted hereunder for better appreciation; 212. Investigation into affairs of Company by Serious Fraud Investigation Office. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 1[offence covered under section 447] of this Act shall be cognizable and no person accused of any offence under those sections shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not made out. This Court finds that the allegations that the confidential information and certain technical know-how were taken away by the petitioner are vague. That apart, in order to allege theft of the property, it must be shown that the complainant was deprived of the said property. Assuming that the confidential information and other intellectual property were taken by the petitioner, it cannot be said to be theft because in order to attract the offence of theft, the complainant must be deprived of the property. In the instant case, the nature of the property is intangible, and in such circumstances, it cannot be said that the complainant was deprived of the said property since the alleged confidential information is still available with the complainant. The allegation of misuse of information and making personal gain with the said information would, at best, make the petitioner liable civilly to the respondent. It may amount to a breach of trust as understood commonly and would not amount to a criminal breach of trust. In order to attract the said offence, the nature of the property entrusted and as to how it was misappropriated must be clearly spelt out. Vague allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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