ITC Limited and Another vs State of U.P. and Another

Amar Saran, J.—Heard Shri Shanti Bhushan, learned Senior Advocate assisted by Shri Yashwant Verma, for the applicants, Shri R.K. Saxena, learned Counsel for opposite party No. 2 and Shri Neeraj Kant Verma, learned Additional Government Advocate representing the State and perused the application, affidavit, counter and rejoinder affidavits and written arguments submitted by the applicants, opposite party No. 2 and the State of U.P.

An application u/s 156(3) of the Code of Criminal Procedure (hereinafter referred to as the Code ) was filed by the complainant, second respondent before the Court of Judicial Magistrate/Civil Judge (JD) Orai alleging therein that the complainant was the convenor of the village Minaura "E-Choupal" programme run by the ITC Limited. The complainant''s duty was to distribute seeds to the concerned villagers at reasonable rates and provide information about the same. The said seeds were made available to the complainant by the local seeds distributor of the company, the co-accused Anoop Kumar Mittal of Mittal traders. Out of the said seeds, which were distributed by the company in July, 2004, one variety of seeds PU-35, which were supplied by the company through the distributor Mittal Traders, were found to be adulterated and of inferior quality. When the farmers complained of the poor quality of the seeds, the complainant immediately communicated this fact to the District Agriculture Officer and higher officials of the company complaining that as the company had wrongfully made him distribute inferior variety of seeds, hence the agriculturists should be compensated immediately. The company took no notice of the complainant''s complaint and instead with the aid of Anoop Kumar Mittal, when the complainant was absent, took away the computer, which contained some information, files and other electronic data. The complainant was thrown out of his job without notice and the information, files and data of the complainant in the computer were destroyed. In the meantime, a legal dispute arose between the village agriculturists and ITC before the District Consumer Forum in which case the complainant was also made a party. In the course of the said judicial proceedings, on the directions of the higher officials of the company Shri Milan Anandan (who was the branch manager), the district distributor Shri Anoop Kumar Mittal in collusion with the co-accused District Agriculture Officer got forged and fabricated documents manufactured and utilized the same for shifting the liability from the company to the complainant. In pursuance of this conspiracy, the co-accused, the District Agriculture Officer, sent a batch of seeds for analysis, which were different from the lot issued to the complainant and which the complainant had never distributed and the lot which had been distributed by the complainant was never sent for analysis. When the complainant visited the office of the District Agriculture Officer on 17.5.2006 at about 10.30 AM and complained to him that he had filed a forged report causing enormous loss to the complainant and the village farmers and he should withdraw the said report and furnish the correct information to the concerned court, at that time Anoop Kumar Mittal arrived there, seeing him the District Agriculture Officer got enraged and threatened the complainant that he should take back his case against such a big company and that he could do nothing to harm its interests and that he would not take back the document that he had filed in the court and further that if the complainant insisted in pressing legal charges he would be falsely implicated in a case u/s 3/7 of the Essential Commodities Act. When the complainant opposed this, Anoop Kumar Mittal rose from his seat and viciously abused the complainant saying that he had spared him on an earlier occasion and that he would now lose his life and after calling the officials of the department, the complainant was pushed out of the room.

As the police of police station Kotwali, did not take down the complainant''s report, the complainant gave a typed report on 18.5.2006 to the Superintendent of Police, Jalaun at Orai and even sent him information by registered post on 3.6.2006. When no action was taken on the same, then the complainant moved the present application u/s 156(3) of the Code.

It appears that the learned Magistrate treated the said application as a complaint and recorded the statement of the complainant u/s 200 of the Code and examined his witnesses Vipin Kumar and Santosh Kumar as PWs 1 and 2 u/s 202 of the Code, who corroborated the statement of the complainant and thereafter passed an order on 13.6.2006 summoning applicant No. 1 Shri Y.C. Deveshwar, the President of the ITC, applicant No. 2 Shri Milan Anandan, the Branch Manager of the concerned branch, co-accused Shri Anoop Kumar Mittal and Shri Ram Chandra Singh, the District Agriculture Officer, Jalaun at Orai under Sections 467/468/471 Indian Penal Code ( hereinafter referred to as IPC) and Section 65 of the Information Technology Act, 2000.

In the first place it was argued by Shri Shanti Bhushan, learned Senior Counsel for the applicants that on the allegations no office under Sections 467/468/471 IPC or u/s 65 of the Information Technology Act is made out.

In this connection, it was submitted by the learned Counsel orally as well as by filing written arguments that from the allegations that the District Agriculture Officer has filed a test report of a different lot of seeds than the lot of seeds, which had been distributed by the complainant to the farmers before the court concerned, no inference could be drawn that the test report had not been prepared by the authority concerned, i.e. by the Joint Director, Agriculture, Seeds and Training, U.P. There was no allegation that the said report did not contain the signature of the person, who had purportedly signed it, but the allegations were that the report did not relate to the lot of seeds which the complainant had distributed, hence it could not be said that any offence of forgery or offences under Sections 467, 468 and 471 IPC had been committed.

I think, it is rightly submitted by the learned Counsel that no false document as defined u/s 464 IPC has been prepared as there was no allegation that the said document has been dishonestly or fraudulently made, signed or executed in a manner by a person with the intention of causing it to be believed that such document or part of document was made, signed sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed. In the present case as there was no allegation that the certificate issued by the Joint Director, which has been annexed at page No. 178 of the application and was filed in the District Consumer Forum by the District Agriculture Officer, the accused No. 3 was not actually issued or signed by the Joint Director, hence no offences under Sections 467/468/471 IPC appear to have been made out.

It has rightly been argued by Shri Shanti Bhushan that as there was no material to indicate that the said document was a forged document within the meaning of Section 464 IPC, hence an offence u/s 471 IPC was also not made out, as the same relates to using as genuine a forged document for the purpose of cheating.

It was also rightly argued by the learned Counsel that no offence u/s 65 of the Information Technology Act, 2000 was made out, because in the present case there was no allegation of concealment, destruction or alteration of the "computer source code", which under the Explanation to Section 65 means the listing of programmes, computer commands, design and layout and programme analysis of computer resources in any form. The deletion of information in a computer can thus not amount to an offence u/s 65 of the Information Technology Act, 2000.

But criminal proceedings can only be quashed when no offences whatsoever are disclosed in the complaint or statements of the witnesses u/s 200 and 202 of the Code and it is well settled that criminal proceedings cannot be quashed merely because the offences disclosed have been mis-described in the complaint or the summoning order or the complaint allegations suggest commission of some other offences different from the offences or provisions in respect of which the complaint was filed or the accused was summoned. In the land mark decision of the Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, it has been mentioned that criminal proceedings against an accused can be only be quashed:

Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.

Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

I have highlighted the phrase "any offence" to emphasise that criminal proceedings against the accused can only be quashed if no offence whatsoever is disclosed in the complaint, and not where the offences have been mis-described or where cognizance could have been taken for the commission of some other offences different from the offences in respect of which the cognizance order had been passed. Criminal proceedings cannot be quashed at the threshold merely because the summoning order had been passed for summoning the accused under some incorrect provisions, although it cannot be said that no offence whatsoever has been committed on the allegations in the complaint or statements of witnesses.

In my view in the present case it cannot be said that an inference cannot be reached that no offence under the Information Technology Act, 2000 or under the Penal Code can possibly be disclosed.

It would be useful here to refer to Section 66 of the Information Technology Act, 2000. The said provision reads as under:

Hacking with computer system:- (1) Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.

In the aforesaid section it has been provided that if any one deletes or alters any information residing in a computer with an intent to cause a wrongful loss or damage to the public or any person or diminishes its value or utility or affects it injuriously by any means, commits the offence of hacking a computer system.

In the present case as the allegations in the complaint, which have to be accepted at their face value at this stage, (when the defence, if any of the accused, if any cannot even be considered), are that some information was removed from the computer lying with the complainant, and which may have contained information as to the correct number of the lot of seeds issued for distribution to the complainant by the company, removal of such data may have resulted in wrongful loss to the farmers, by facilitating submission of wrong data with relation to another lot, which had not been found spurious during test analysis, in such circumstances it cannot be inferred at this stage that no offence also u/s 66 of the Information Technology Act is disclosed.

Also as the document relating to another lot of seeds which was not distributed by the complainant and which had caused loss to the agriculturists, but which was relating to the lot where the seeds were of proper quality and not adulterated. The said action had been done in order to deceive the District Consumer Forum, i.e. the judicial authority where the farmers had complained against the allotment of wrong seeds by the company and claimed compensation, as it was possible in those circumstances that as a result of the deception practised by the District Agriculture Officer in collusion with the other accused by producing a test report relating to another lot of seeds other than the lot which had been issued to the complainant for distribution to the farmers, the Consumer Forum could have omitted to take action against the accused persons as a result of the deception or failed to have passed an order awarding the farmers'' claim, which it might not have taken had the court not been deceived.

Section 415 of the Code reads as follows:

415 Cheating:- Whosoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything, which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage, or harm to that person in body, mind, reputation or property, is said to "cheat".

Could it be said in such circumstances that an offence to cheat even u/s 415 of the Penal Code or of an attempt to commit the said offence with the aid of Section 511 of IPC as a result of the practice of the deception averred to above, could not be said to have been prima facie disclosed?

Learned Counsel for the applicants has referred to the case of Ram Jas Vs. State of U.P., for the proposition that an oath commissioner who had been induced to attest an affidavit of a person by a deception practised on him by the accused and had thereby wrongly identified a person as Govind Ram who was not Govind Ram. As the oath commissioner was not personally cheated by the accused because of that act or omission, as the act of the accused had caused no damage or harm to the oath commissioner in body, mind, reputation or property, hence the Apex Court did not consider that the oath commissioner had been cheated.

I think the said case is clearly distinguishable from the present case on facts because if a Court is induced to give a judgement on the basis of a document, which relates to another matter, certainly damage or harm would be suffered by the Court in mind and reputation as a consequence of the wrong judgement, and adverse effect would be caused by the act of deception to the justice delivery system.

The allegations in the case could also constitute offences under Sections 217 or 218 IPC as the co-accused No. 4, the District Agriculture Officer who was a public servant and who had produced a test report which related to a lot of seeds which were non-spurious and not to the actual lot of seeds which were delivered to the farmers with the intent of saving the distributor and the company and preventing the claim of the farmers being allowed by the Consumer Forum. On these allegations the District Agriculture Officer could be considered to have conducted himself in a manner by framing a record or writing in a manner, which he knows to be incorrect with intent to cause or knowing it likely to cause injury to the public or to any person or with intent thereby to save or knowing it to be likely that he will thereby save, any person from legal punishment. The accused could be said to have abetted this action of inducing the concerned public servant to frame this incorrect record or writing with intent to save the company from punishment etc. or for causing a loss to the farmers. At this stage commission of offences against the other accused under Sections 217 and 218 IPC with the aid of Section 109 IPC can therefore not be ruled out.

Similarly, it cannot be said that no offence u/s 192 IPC is disclosed as the said section envisages causing any circumstance to exist or making any document or electronic record containing files or statements intending that in such circumstances false entries or false statements may appear in evidence in a judicial proceeding or in a proceeding taken by law before a public servant and that such circumstance false entry or statement may cause any person, who in such proceeding is to form any opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding.

By presenting the test report by the co-accused District Agriculture Officer relating to a lot of seeds, which were of proper standard and not of the lot of seeds which had been distributed by the complainant, and which were said to be of spurious quality, the accused District Agricultural Officer could be said to have attempted to make a false statement or to present an incorrect and irrelevant document before the District Consumer Forum, (with the aid and abetment of the other accused) which could have caused it to have reached an erroneous opinion on the subject matter of dispute and from this it could not be held at this stage that no offence u/s 192 IPC read with Section 109 or Section 34 IPC was disclosed.

Furthermore, in view of Section 216 of the Code, there are plenary powers with a Court to add or alter the charges in respect of the offences for which an accused is being tried at any stage before the judgement is pronounced. Therefore, if at any stage it appears to the Court that instead of offences under Sections 467/468/471 IPC or u/s 65 of the Information Technology Act, some other offences are made out, there are unfettered powers with the Court for altering the charges and for taking cognizance against the accused under the provisions of the Penal Code or I.T. Act wherein the accused appear to be prima facie involved. This plenary right of the Court u/s 216 Cr.P.C for altering the charges at any stage if some offence different from the offences for which it might have initially taken cognizance by means of its summoning order is another reason why criminal proceedings cannot be quashed merely because the offences for which cognizance has been taken have been mis-described or where an accused appears to have committed some other offences other than those for which the cognizance order was passed, but where on the allegations it cannot be said that it is not a case where no offence whatsoever is disclosed.

It was then submitted by the learned Counsel for the applicants that so far as applicant No. 2, Milan Anandan , the Branch Manager, was concerned, apart from the allegations in the complaint that it was on the directions of the Branch Manager that the distributor Anoop Kumar Mittal, accused No. 3 has conspired with the District Agriculture Officer, accused No. 4 and got a wrong document filed before the District Consumer Forum, but there was no substantiation of this allegation in the complaint or in the evidence adduced.

In this connection reliance has been placed on the case of R.P. Kapur Vs. The State of Punjab, for the proposition that there was no legal evidence in support of the case or the evidence adduced was clearly inadequate for proving the charge and hence process ought not to have been issued against Milan Anandan, applicant No. 2 or against applicant No. 1. Shri Y.C. Deveshwar, the President of the ITC limited.

In Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, it has been held that no meticulous or critical examination of the evidence or material is required at the stage of issuing process, and if any material exists either in the complaint or in the statement u/s 200 of the Code to issue process against an accused, there is no ground for quashing the criminal proceedings. A very limited enquiry is contemplated at this stage when it has only to be seen whether there is sufficient material in the complaint or statement of the witnesses for proceeding with the complaint, and the probability of conviction has not to be adjudged at this stage. The defence of the accused who has no locus standi can also not be considered at this stage and can not be heard on the question as to whether process should be issued against him or not. It has been observed in paragraph 3 in Smt. Nagawwa''s case that "an enquiry u/s 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial." Again in paragraph 5 it has been observed: "Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused." It is further observed in the same paragraph in Smt. Nagawwa''s case:

Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.

Here it is explicitly stated in the complaint that it was on the instigation of applicant No. 2, the Branch Manager that the co-accused Anoop Kumar Mittal, the distributor had instigated the accused No. 4, the District Agriculture Officer to submit a wrong report about an unrelated batch of seeds, which have not been distributed by the complainant to the farmers, hence it could not be said at this stage that there is absolutely no material to issue process against the applicant No. 2, Milan Anandan, the concerned Branch Manager.

Moreover, the further circumstance that the complainant''s computer which may have contained information about the proper lot of seeds which were issued to the complainant under the "E-Choupal" of the ITC was taken away from him and the said information was deleted and the complainant was even removed from his employment with the ITC as the village convenor of the programme as he stood up in support of the villagers who had been issued spurious quality of seeds. These steps could not have been taken by Anup Kumar Mittal, the distributor of the seeds, who was not an officer of the ITC company. These are all circumstances which cannot rule out the involvement of the applicant Milan Anandan, the Branch manager in the alleged conspiracy between the local distributor and the District Agriculture Officer and suggest that the applicant No. 2, the Branch Manager must have had some hand in the conspiracy. Conspiracy as is well known is hatched in silence and inferences about a conspiracy need to be drawn from the circumstances of a particular case.

The other criteria for quashing the criminal complaint mentioned in Smt. Nagawwa''s case, viz. that the allegations are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there was sufficient ground for proceeding against the accused or the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible or the complaint suffers from fundamental legal defects, such as, want of sanction or absence of a complaint by legally competent authority etc. were clearly inapplicable in the instant case.

In the decision of the Apex Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, , the Manager and the Directors of the company M/s Upper Ganges Sugar Mills, which manufactured "Morton Toffees", were summoned by the Metropolitan Magistrate, Delhi for violating the provisions of the Prevention of Food Adulteration Act. The High Court in exercise of its inherent powers quashed the criminal proceedings against the accused that no offence was disclosed against them and there were no specific allegation against the accused. In the appeal preferred by the Municipal Corporation of Delhi against the judgement of the Delhi High Court, the Apex Court set aside the order of the High Court quashing the proceedings against the Manager, but upheld the order quashing the proceedings against the Directors. The Apex Court observed that if by taking the allegations of the complaint as true without adding or subtracting anything if no offence is made out only then the High Court would be justified in quashing the proceedings in exercise of powers u/s 482 of the Code.

The common allegations in the said case were that the accused Ram Kishan Rohtagi, the Manager and the other accused, who were the Directors, were in charge and responsible for the conduct and business of the company at the time of sampling. The Apex Court in paragraph 13 observed that "so far as the Manager was concerned, it was not and could not be reasonably argued that no case is made out against him because from the very nature of his duties, it is manifest that he must be in the knowledge about the affairs of the sale and manufacture of the disputed sample."

It was further observed by the Apex Court in paragraphs 15 and 16 of Ram Kishan Rohatagi''s case as follows:

So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also, be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused Nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against, them were rightly quashed.

We, however, do not agree that even accused No. 3, respondent No. 1, who is Manager of the Company and therefore directly in charge of its affairs, could fall in the same category as the Directors. Hence, we would set aside that part of the judgment of the High Court which quashes the, that from the very nature of his duties it can be safely inferred that the Manager would undoubtedly be vicariously liable for the offence, vicarious liability being an incident of an offence under the Act. But so far as the Directors were concerned, there is not even a whisper nor a shed of evidence nor anything to show, apart from the presumption drawn by the complainant that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable.

Applying the same principle as in the case of Ram Kishan Rohtagi (supra) it could be safely inferred that the applicant No. 2 Milan Anandan, the Branch Manager must be having a hand in the conspiracy with the distributor, co-accused Anoop Kumar Mittal in prevailing upon the other accused, the District Agriculture Officer to place a wrong report, which related to another batch of seeds before the District Consumer Forum. The likelihood of the complicity of the applicant Milan Anandan, the Branch Manager cannot be ruled out as the complainant''s computer had been taken away and some entries, which may have related to the lot, which was given to the complainant and distributed to the farmers were deleted and he was also removed from his employment. Thus, the circumstances suggest the involvement of Milan Anandan, the Branch Manager, applicant No. 2 in the offence.

However, neither was there any allegation even in the complaint against the President of the company, applicant No. 1 nor was there any reason to presume at this stage that he could have any hand or complicity in the offence alleged to have been committed by the District Agriculture Officer in collusion with the other accused, hence I think that the order of the Magistrate taking cognizance against Shri Y.C. Deveshwar, President of ITC, the applicant No. 1 needs to be set aside.

In Ram Kishan Rohtagi (Supra) it has also been observed that in case subsequent evidence is forthcoming about the involvement of the Directors they could also be summoned in exercise of power u/s 319 of the Code. I think the same principle could also apply in the present case to the President of the company, applicant No. 1 that if some evidence is forthcoming during trial against him, then keeping in mind the observations of the Apex Court, he could also be summoned. Of course as it has been pointed out by the Apex Court in Ram Kishan Rohtagi (supra) that the extraordinary power, which has been conferred on the Court u/s 319 of the Code should be exercised very sparingly and only if compelling reasons exist for taking cognizance against the President.

For all these reasons spelt out above, I am of the that there is no illegality in the order taking cognizance against Milan Anandan, applicant No. 2, the Branch Manager. But so far as applicant No. 1 Y.C. Deveshwar, President of the company is concerned, the order issuing process against him is set aside subject to the rider that in case reliable evidence of his complicity is forthcoming against him when the evidence is recorded, it would be open to the court concerned to summon this accused in exercise of powers u/s 319 of the Code subject to the conditions and cautions set out in the case of Ram Kishan Rohtagi (Supra).

In case the Court concerned is of the opinion that the process should be issued against the accused or charges should be framed against the accused under any other provision in place of the provisions under which he has been presently been summoned, it will be open to the Court to amend the charges in exercise of powers u/s 216 of the Code of Criminal Procedure. It is made clear that the observations herein-above have only been made for the purpose of disposal of this application and they shall not influence the trial court which shall proceed with the trial by exercising its own judicial discretion.

As the proceedings have remained pending owing to the stay order granted by this Court for some time, it is directed that the trial court shall now proceed with the trial of this case against applicant No. 2 and other accused expeditiously. For a period of four weeks the execution of non-bailable warrants against the applicant No. 2, Milan Anandan shall be kept in abeyance to enable him to appear before the Court concerned.

With these observations, this application is partly allowed and disposed of as such.