IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.08.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.2513, 2514 and 2922 of 2011 1.M/s.Sundaram B.N.P.Paribas Home Finance Ltd., Rep by its Managing Director 2.Srinivas Acharya, Managing Director, M/s.Sundaram B.N.P.Paribas Home Finance Ltd., 3.G.Sundararajan, Vice President & Head Finance, M/s.Sundaram B.N.P.Paribas Home Finance Ltd., 4.Ms.V.Janaki, DGM-Information Systems, M/s.Sundaram B.N.P.Paribas Home Finance Ltd., all having office at Sundaram Towers, 40, Whites Road, Chennai – 600 014. ... Petitioners in all W.Ps. vs. 1.State of Tamil Nadu, Rep by the Secretary to Government, Home Department, Secretariat, Fort St. George, Chennai – 600 009. 2.State of Maharashtra, Rep by the Secretary to Government, Secretariat, Mumbai. 3.The Senior Inspector of Police, Cyber Police Station, Crime Branch, CID, Mumbai 1st Floor, BKC Police Station Building, B.K.C., Bandra (East), Mumbai – 400 051. https://hcservices.ecourts.gov.in/hcservices/ 4.Subhash Jadhav, Inspector of Police/ Investigating Officer, Crime Branch, C.I.D, Mumbai, 1st Floor, BKC Police Station Building, B.K.C., Bandra (East), Mumbai – 400 051. 5.Major V.P.Singh, Director, M/s.Kensoft Infotech Limited, "D" Wing, 4147-8, Oberoi Garden Estate, Chandivali Farm Road, Andheri East, Mumbai – 400 072. ... Respondents in all W.Ps. Prayer in W.P.(MD)Nos.2513 & 2514/2011: Writ Petitions filed under Article 226 of the Constitution of India seeking a Writ of Certiorari, calling for the records of the third respondent comprised in his order bearing O.W.No.513/CYPS/ SBJ/2011, dated 24.01.2011 and quash the same as unconstitutional. Prayer in W.P.(MD)No.2922/2011: Writ Petition filed under Article 226 of the Constitution of India seeking a Writ of Certiorarified Mandamus, calling for the records of the third respondent comprised in the FIR bearing CR.No.30/2010 filed by the fifth respondent and quash the same as unconstitutional and consequently issue a Mandamus forbearing the fifth respondent from in any manner interfering with the business of the petitioners. For Petitioner : Mr.A.L.Somayajee (In all W.Ps) Senior Counsel. for Mr.T.K.Bhaskar For 1st Respondent : Mr.V.Jayaprakash Narayanan (In all W.Ps) Additional Government Pleader. For Respondents 3&4: Mr.J.Rajakalifullah (In all W.Ps) Additional Government Pleader. For 5th Respondent : Ms.Geetha Ramaseshan (In all W.Ps) COMMON ORDER While in W.P.Nos.2513 and 2514 of 2011, the petitioners have challenged the order passed by the third respondent, the Senior Inspector of Police, Cyber Police Station, Crime Branch, CID, Mumbai, dated 24.01.2011, by which the third respondent has directed on the basis of the complaint given by the fifth respondent as a Director of M/s.Kensoft Infotech Limited, Mumbai, to submit material evidence for https://hcservices.ecourts.gov.in/hcservices/ investigation purpose and also to produce various documents listed therein containing electronic record/documents for the purpose of investigation respectively, W.P.No.2922 of 2011 is filed to quash the First Information Report registered in Crime No.30/2010 in the third respondent police station based on a complaint given by the fifth respondent against the petitioners. 2.The first petitioner is a Joint Venture of M/s.Sundaram Finance Limited and M/s.B.N.P.Paribas Home Finance Limited registered with a National Housing Bank as a Housing Finance Company and it is a multi-crore conglomerate having branches through out the country and the second petitioner is a Managing Director of the first petitioner company and the third and fourth petitioners are Vice President and Head Systems, DGM respectively of the first petitioner company. 3.It is the case of the petitioners that M/s.Kensoft Infotech Limited (hereinafter referred to as "KENSOFT") has developed application software for the first petitioner company and was providing annual maintenance support to the said software. During the renewal of annual maintenance contract, the said KENSOFT without the knowledge of the first petitioner company has introduced that the software is licensed to the first petitioner company. On objection from the first petitioner, the said clause was removed in the annual maintenance contract. Therefore, the relationship of the KENSOFT and the first petitioner was in respect of the development of software on work on hire basis. Due to frequent disruption of this software, the first petitioner company has decided to migrate to a more efficient integrated application software developed by Sundaram Infotech Solutions. The KENSOFT has filed C.S.No.270/2009 before this Court seeking an order of injunction on the basis that KENSOFT is the owner of the software namely, KEN-HFS. In the meantime, the first petitioner company filed an application under Section 8 of the Arbitration and Conciliation Act and sought for Arbitration which was allowed on 16.09.2009 and that was challenged by KENSOFT, the fifth respondent before the Division Bench of this Court which has passed an order to the effect that arbitration will not lie remitted back to the learned single Judge. 4.The first petitioner company has filed a Special Leave Petition before the Hon'ble Supreme Court in SLP (Civil) No.13085 to 13087 of 2010 and the fifth respondent has entered appearance and the matter is pending. In the meantime, it is stated that certain persons from the third respondent police station have visited the premises of Sundaram Infotech Solutions on 29.01.2011 and served the impugned notices, dated 24.01.2011 challenged in W.P.Nos.2513 and 2514 of 2011. The said notices were issued under Section 91 Criminal Procedure Code seeking certain documents. On coming to know about the said impugned notices the petitioners have realised that the fifth respondent KENSOFT has filed a criminal complaint before the third https://hcservices.ecourts.gov.in/hcservices/ respondent in Crime No.30 of 2010 on the same subject matter for an alleged offence under Sections 406 and 420 IPC besides the provisions of the Information Technology Act and Copyright Act. Immediately thereafter, the petitioners have explained to the third respondent about the pendency of the civil suit in the High Court of Madras and requested the third respondent to hand over a copy of the First Information Report stated to have been registered at the instance of the fifth respondent. There was a serious dispute regarding the jurisdiction of Mumbai Police to investigate the matter especially when the fifth respondent himself has filed a suit before the Madras High Court in respect of the same subject claiming ownership over the software and time was sought for consultation, however, the third respondent again visited the office of the first petitioner company on 30.01.2011. According to the petitioners, the third respondent has no jurisdiction not only to register the First Information Report, the petitioners attributed against the fifth respondent that filing of complaint is malicious act with an intention of extracting money from the petitioner company and it is vexatious and therefore, directing the petitioners to produce the documents and other softwares are in violation of Articles 20 and 21 of the Constitution of India. 5.The orders are challenged on various grounds including that the notices issued under Section 91 Criminal Procedure Code are unconstitutional and ultra vires the provisions of Criminal Procedure Code since it amounts to self-incrimination by compulsion which is not permissible by virtue of Article 20(3) of the Constitution of India in view of catena of decisions of the Hon'ble Supreme Court; that it is unconstitutional making invasion to the petitioners' fundamental right by the third respondent; that though a criminal complaint is technically maintainable, the third respondent ought to have appreciated that the fifth respondent complainant himself has claimed ownership in respect of the software already sold in favour of the first petitioner which is a subject matter of dispute in a civil dispute filed by the fifth respondent in the Madras High Court; that for the first information report filed by the fifth respondent and registered under the third respondent police, there is no cause of action and no criminal case has been made out and cause of action has never arisen within the jurisdiction of the third and fourth respondents; that the fifth respondent has approached the Madras High Court and filed C.S.No.270 of 2009 specifically stating that the cause of action arose within the jurisdiction of the Madras High Court cannot maintain any complaint in respect of the same matter before the third respondent; that even on merit, the entire dispute arose by the illegal conduct of the fifth respondent and the filing of the complaint before the third respondent is an abuse of Criminal Procedure Code; that the impugned notice and the first information report are arbitrary and illegal hit by Article 14 of the Constitution of India; that the first information report does not https://hcservices.ecourts.gov.in/hcservices/ even remotely show that the cause of action arose within the Maharashtra State; that the first information report, on the face of it, has not made out any case for the third respondent police to investigate, since no cause of action arose within its jurisdiction and no commission of offence has been made out by disclosing the same in the impugned first information report especially, the commission of Cyber crime; that the filing of first information report itself is only due to the mala fide attitude of the fifth respondent; that the fifth respondent has wilfully misrepresented and suppressed the material facts; that the third and fourth respondents while demanding to collect certain vital commercial information pertaining to the petitioners business have kept the petitioners in dark as to whether the petitioners are treated as accused or as witnesses; that apart from the fact that the first information report does not make out a criminal offence warranting investigation by the third respondent; that no offence made out under Section 63 of the Copyright Act as the very same claim of the fifth respondent in respect of the ownership of software is seriously in dispute in the civil suit; that the fifth respondent admitted in his statement that the petitioners proposed to migrate to another software and therefore, misrepresentation does not arise; that no offence has been made out under the Information Technology Act, 2000 by the de-facto complainant, apart from various other grounds. 6.In the counter affidavit filed by the fourth respondent both on his behalf and on behalf of the respondents 1 to 3, it is stated that the filing of the writ petitions are misconceived and abuse of process of law and are not maintainable and hence liable to be dismissed. It is stated that based on the complaint given by the fifth respondent First Information Report has been registered by the Senior Inspector of Police, Cyber Police Station, Crime Branch, CID., Mumbai and investigation was taken up and at this stage, the writ petitions have been filed. It is stated that the remedy for the petitioners is lie only before the High Court of Mumbai and this Court has no jurisdiction to entertain the writ petitions. 7.The summons issued under Section 91 Criminal Procedure Code which are in the course of investigation and the purpose of filing of the writ petitions is to scuttle the investigation process. It is further stated that even otherwise the remedy of the petitioners is only before the Criminal Court and cannot invoke Article 226 of the Constitution of India. It is also stated that the petitioners cannot challenge the First Information Report when the investigation is still pending. It is stated that the petitioners having agreed to co-operate with the enquiry have stealthily filed the present writ petitions and obtained interim orders and the interim orders affect the investigation against the purported criminal offenders. Inasmuch as the writ petitions have been filed before this Court in respect of criminal proceedings initiated https://hcservices.ecourts.gov.in/hcservices/ outside the territorial jurisdiction of this Court, the writ petitions are to be dismissed in limine for want of jurisdiction and maintainability. It is stated that First Information Report is only a piece of information on the basis of which, investigation is set in motion as per Sections 154 to 156 Criminal Procedure Code and therefore, it cannot be quashed as the complainant has made out a prima facie case since a serious and cognizable offence has been made out. The summons issued under Section 160 read with Section 91 Criminal Procedure Code are only normal process of investigation. The petitioners remedy is only under Section 482 Criminal Procedure Code, if they are aggrieved. It is stated that the first respondent Government of Tamil Nadu is not a necessary party and added only for the purpose of subverting the question of jurisdiction. The complaint given by the fifth respondent before the Additional Commissioner of Police, Crime, Mumbai Police was to the effect that the fifth respondent being the Director of Kensoft Infotech Limited having address at D-4247, 8, Oberoi Garden Estate, Chandivali Farm Road, Andheri(E), Mumbai-72 and one of the softwares of Kensoft, is Kensoft Housing Finance Software "KEN-HFS" and registered with the Registrar, Copyrights Government of India and the said software said to have been developed by the fifth respondent company since 1992 in Mumbai and from 1994 onwards, the same was given for licensed usage to various companies across the country and all Intellectual Property Right (IPR) and source code of the software are in Mumbai. The current version 8.x of the said KEN-HFS software was released for licensed use to the first petitioner company and various agreements, including annual maintenance agreements between the fifth respondent and the first petitioner company were signed in 2005, 2006, 2007 and 2008 and all agreements clearly mentioned that the copy right, IPR belonging to the complainant, namely the fifth respondent and the software is to be used exclusively by the petitioners should not be given to any third party and no reverse engineering or alteration should be made to the software by the petitioners. It is stated that as per the complaint of the fifth respondent the petitioners wrote a communication admitting that the KEN-HFS software is in their licensed usage. It is stated that in the fifth respondent's complaint before the third respondent, it is complained that the petitioners on many occasions given assurance to the fifth respondent that IPR and copy right of the complainant will not be violated by the petitioners and third party access was prohibited by the contract. In spite of the said contract, it is stated that the petitioners have handed over software to the third party and having full knowledge of this fact, the petitioners have entered into agreements with the complainant that the software would not be handed over to any third party and therefore, tampering of code and hacking of the software were committed. It is stated that the technical reports from Indian Institute of Technology, IIT, Bombay has established the violation as per its report. It is stated that the petitioners have paid large amount of money to the third party namely, Sundaram Infotech https://hcservices.ecourts.gov.in/hcservices/ Solutions. The allegations in the First Information Report are against Ms.V.Janaki, Head of Systems, Sundaram B.N.P Home Finance Limited (2)Mr.N.Palany, M.D., Sundaram B.N.P Home Finance Limited (3) Mr.G.Sundararajan, Vice President, Sundaram B.N.P Home Finance Limited, (4)Mr.Sacharya, Director, Sundaram B.N.P Home Finance Limited and (5) Mr.K.Swaminathan and others. 8.It is stated that on a perusal of evidence and during preliminary investigation, it was revealed that the copy right in the software as per the petitioners own admission in November 2008 and September 2008 lie with the 5th respondent; that the petitioners have been handed over complainant's software, in trust which was transferred, to a third party Sundaram Infotech Solutions; that while in possession of the third party, the software was tampered and the software scheme hacked into; that when offences were discovered, the petitioners resorted to various acts of dishonesty and fraud to cover up their acts and various criminal offences; that evidence of offences have been submitted and verified by the fourth respondent; that reports from the IRCC (Industrial Research and Consultancy Centre and Intellectual Property Cell, IIT Bombay) and the Institute of Intellectual Property Studies (IIPS Report -reference from NASSCOM), establishing IPR and copyright of Kensoft and the offences committed by the petitioners are on record; that after going by the available facts and evidence, preliminary enquiry was conducted for an offence under Section 406, 420 and 34 IPC, read with Section 43 (b)(i)(j) read with Sections 66, 65 72(A) of the Information Technology Act read with Sections 63, 63(b) of the Copyright Act and the complaint was registered with the third respondent in Crime No.30 of 2010; that the statements of important witnesses, including those of renowned industrial stalwarts and senior experts were recorded; that the digital evidence produced by the complainant was also taken on record; that the team went with Forensic Tool Kit to collect copies of certain digital evidence of current use of the housing finance software which ensures that back up of any digital record can be taken without disturbing any source data and without causing any damage to the petitioners/usage/user. Therefore, summons were issued under Section 91 Criminal Procedure Code by the Investigating Officer namely, the fourth respondent to the petitioners to produce documents. It is stated that when the fourth respondent has proceeded to investigate at Chennai with the assistance of D-2, Anna Salai Police Station, the petitioners have chosen to challenge the criminal complaint without furnishing any materials. It is also stated that afterwards search warrant was obtained form the appropriate court namely, the Additional Chief Metropolitan Magistrate, 37th Court Esplanade, Mumbai. It is also stated that suppressing all these facts, interim order has been obtained by the petitioners. It is further stated that the petitioners have made false affidavit suppressing material facts and that the Mumbai Police has jurisdiction to investigate and it is stated that at least part of https://hcservices.ecourts.gov.in/hcservices/ the offence has been committed by the petitioners in Mumbai and therefore, the Mumbai Police has got jurisdiction since the complainant voluntarily resides and carries on business personally works for gain in Mumbai. It is also stated that under Sections 178 and 179 Criminal Procedure Code, the Mumbai Police alone are competent to register and investigate the complaint. 9.It is stated that there is no coercion from the fourth respondent and it is not correct to state that the copy of the first information report was not shown to the petitioners and it is stated that the complaint was read over and explained in Hindi and English. It is stated that the software has been developed in Mumbai. The Complainant company and complainant are residing at Mumbai. The source code and IPR of the software are in Mumbai. The Copyright registration certificate registered by the Registrar of Copyrights, Government of India, at Mumbai and therefore, any hacking or tampering of software anywhere affects the victim at Mumbai and therefore, the registration of complaint by the Mumbai police is within its jurisdiction and Cyber Crime Police station of Mumbai is having jurisdiction all over Mumbai and not restricted to any beat numbers etc., It is also stated that when the petitioners themselves have admitted that pendency of any civil proceedings in the Madras High Court does not prevent the aggrieved person from launching criminal proceedings they cannot have any grievance. It is also stated that the third respondent has never visited Chennai during the course of investigation and fifth respondent was not present when the fourth respondent went to premises of the petitioners. Hence, it is stated that the filing of the writ petitions is abuse of process of law and any delay in investigation will defeat the very object and if the timely action is not taken, there is every possibility of the evidence being destroyed and will become a farce and therefore, the third respondent has prayed to vacate the interim order already granted by this Court. 10.In the counter affidavit filed by the fifth respondent which is also in the same line of counter affidavit filed by the fourth respondent, it is stated that the writ petitions are not maintainable since no cause of action arose within the jurisdiction of this Court and FIR was registered under the third respondent only after prima facie case was made out about the allegations and the third respondent after registering the FIR under various sections forwarded the same to the Court of competent jurisdiction namely, the Additional Metropolitan Magistrate, Court 37 which is under the jurisdiction of Maharashtra High Court for all purposes under Articles 226 and 227 of the Constitution. It is also stated that the fifth respondent has chosen to file the suit in a place where the defendants is carrying on business as per Section 12 of the Letters Patent and Sections 51,55 and 62 of the Copyright Act. Insofar as the filing of the FIR and the violations of the provisions of Information https://hcservices.ecourts.gov.in/hcservices/ Technology Act are concerned, the fifth respondent is entitled to file such complaint before the third and fourth respondents before whom the investigation is under progress. 11.A bare reading of the contents of the First Information Report shows that the third respondent police is the competent authority especially when Sections 78, 80 and 81 make it very clear that the provisions of Information Technology Act, 2000 will override the provisions of Code of Criminal Procedure. While reiterating that the Kensoft Infotech Limited is a software development company and that has developed finance software for use of housing companies and home loans business, the fifth respondent company states that it is an ISO 9001:2000 certified company with certification from BVQI and ANAB (ANSI-ASQ) National Accreditation Board of USA. The company has also been an Oracle partner for over 13 years and one of their major software that they developed is KEN-HFS and that was licensed in India to various companies since 1994, including the Bank of India, GIC Housing Finance, ICICI Bank etc., and also to Government of Andhra Pradesh, Andhra Pradesh State Financial Corporation, Economic Development Corporation Goa etc. In addition to that various software have also been used by the Reliance Petro Chemicals, Air India, Afro Asian Games, Government of Andhra Pradesh etc., It is stated that the petitioners have violated by tampering with the software, schema, source code of the fifth respondent resulting in tremendous loss to the fifth respondent. It is also stated that the petitioners have themselves assured the fifth respondent that the IPR will be protected by them. However, after admitting the same in November 2008 and in December 2008 after perpetuating the fraud the petitioners have falsely claimed copyright of the software and after violations were discovered the infringing code found on petitioners' server to cover up their illegal activities. It is stated that there is no disruption in the software and letters written by the second and fourth petitioners on behalf of the company would clearly indicate that they have satisfied with the work of the fifth respondent. It is also stated that they exposed to and colluded with the third parties who control hacking and tampering, copying and offences were committed and reverse engineered the software provided by the fifth respondent company and hacked the software schema source code committing violations of the provisions of the Information Technology Act, 2000. While it is true that the fifth respondent has filed a suit in C.S.No.270 of 2009 before the High Court of Madras, seeking various reliefs against the petitioners and the third party are not party to the arbitration and in spite of it an application was made for the purpose of referring to arbitration under Section 8 of the Act and that has been rejected in the appeal in O.S.A.Nos.431 to 433 of 2009. It is true that against the order in the abovesaid appeals, S.L.P has been filed by the petitioners and no stay has been granted by the Hon'ble Supreme Court. It is also stated that the petitioners have violated the Copyright of the fifth respondent and the illegal https://hcservices.ecourts.gov.in/hcservices/ acts done by the petitioners have been established in the technical report of the Indian Institute of Technology, Computer Science and Engineering Department, IIT, Bombay, apart from the report of Dr.N.L.Sarda, who is an independent and eminent expert of international repute and other reports of experts. 12.According to the fifth respondent, a perusal of the First Information Report indicates the gross violations committed by the petitioners and there is no abuse of process of law and the First Information Report cannot be quashed as a matter of course which has been well