H.W. Dhabe, J.
1. These are two criminal writ petitions which can conveniently be disposed by this common judgment.
2. The petitioners in these two writ petitions are engineering graduates, who were employed in the respondent No.1 Company. It may be stated that the petitioners have qualified themselves in Instrumentation Engineering. There are common terms and conditions of service in the company and it appears that at the time of appointment, the candidates are required to enter into an agreement of service on the basis of the said terms and conditions. The petitioners were initially appointed for a period of 3 years whereafter their period of service was extended by further period of 3 years. However, before the completion of the extended period of 3 years, they left their service and joined some other company.
3. The respondent No. 1 Company filed the instant complaint cases against them on the ground that the petitioners left the service in contravention of the terms and conditions of service agreed to by them. It is alleged in the complaints against them that at the time of leaving the service they were required to hand over charge of the entire documents etc. of the company in their possession. It is also alleged in the complaints that the petitioners had gained special technical know-how by the special training in the company which they carried with them and used in the other company which they joined. In support of the complaints one Arun Vishwanath Joshi, the Manager, Production and Administration of the respondent No.1 Company was examined. It is on the basis of the written complaints and the verification statement of the aforesaid Manager of the respondent Company that the learned Chief Judicial Magistrate has registered the cases against the petitioners for offences of criminal breach of trust and cheating punishable under sections 408 and 420 of the I.P. Code. By these writ petitions the petitioners have challenged the aforesaid orders of the learned trial Magistrate directing issue of process against them.
4. The learned Counsel for the petitioners has urged before me that the allegations in the complaints which are common for the alleged offences under sections 408 and 420 of the Indian Penal Code do not disclose that the petitioners have committed any offences under the said sections. Particularly, the submission on behalf of the petitioners is that the complaints filed by the respondent No. 1 do not specify that there were any particular documents in possession of the petitioners which were taken away by them at the time they left the service and secondly that they have actually used the technical know-how which according to the respondent No.1-Company they had attained by their special training during the service in the company. The learned Counsel for the respondent No.1 Company has, however, urged that the technical know-how attained by the petitioners is a 'property' within the meaning of section 405 I.P.Code and that according to the complaints, the offences under sections 408 and 420 I.P.C. are prima facie disclosed which can be substantiated at the trial. In the instant cases, I may state that it is not necessary for me to consider the question whether the technical know-how gained by the petitioners by the special training during their service in the company is a 'property' or not within the meaning of section 405 IPC, because according to me the instant writ petitions should succeed upon the other requirements of sections 408 and 420 of I.P. Code which, as I would show lack in these complaints.
5. Before I proceed to consider the rival contentions, it may be seen that for the offence of criminal breach of trust what is necessary is that the accused must have been entrusted with the property or must have the dominion over the property and that he must have dishonestly misappropriated or converted to his own use that property or has dishonestly used or disposed or that property in violation of any direction of law prescribing the mode in which such trust, is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust. The essential ingredients of 'cheating' in section 415 I.P.C. are that a person by deceiving any person, fraudulently or dishonestly, induces the person so deceived to deliver any property to him or 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, reputation or property. For the purpose of these cases what is therefore, necessary to be proved by the respondent No.1-Company is that the documents of the Company are dishonestly taken away and that the technical know-how of the company is dishonestly used by the petitioners.
6. The learned Counsel for the respondents No.1 who has heavily relied upon the Agreement of Service in support of his submission has brought to my notice Clauses 10,11 and 18 of the Agreement of Service entered into by the petitioners with the company. According to Clause 10 of the Agreement the employees have to undertake that all the documents referred to therein which may come in their possession during the course of the employment would be the absolute property of the company and that they would not remove the same at any stage from the office or the factory without the express permission in writing from the company to that effect. Clause 11 of the Agreement provides that the petitioners shall keep confidential and prevent the disclosure and divulgence of any and all informations, instrument, document, reports, statements, logs, records, correspondence, discussion, contract plans, drawings, photographs, copies, methods, trade secrets, manufacturing process, machinery know-how, layouts, patents, transaction, affairs, dealings, finances and accounts etc. of the company that may pass through or come to the knowledge of the employees, during the continuance of their employment as well as thereafter.
7. Clause 18(a) of the Agreement provides that in the event of the employees leaving their services that would not directly or indirectly engage in or carry on of their own accord or in partnership with others or be employed or concerned or interested in any other concern manufacturing plastic products and materials, thermo plastic and thermosetting, including polyester, Nylon, Polystyrene, Polyproplene, PVC or any thermo plastic or thermosetting film, sheets, stretched oriented, biaxial oriented or otherwise and metalling and lacquering of films and/or the business at present being carried and/or undertaken by the company in future. Clause 18(b) provides that the employees shall not serve in any capacity whatsoever or be associated with any person, film or company carrying on the aforesaid business for the remainder of the said period and for a period of three years thereafter. I may also refer to Clause 18(c) which provides for leaving service before the expiry of three years. Under this clause the employee has to pay to the company as liquidated damages an amount equal to the salaries the employee would have received during the period of six months thereafter i.e. after he leaves the employment. Clause 19 of the said agreement makes a similar provision if the Company terminates the services of the employee before the expiry of the period of three years. It is in the light of the above provisions of the Agreement of Service that the respondent No.1- Company has set out its case against the petitioners.
8. As regards the question whether there is any criminal breach of trust or cheating in not giving the charge before leaving the service, it is material to see that there is no specific allegation in the complaints that the petitioners did not hand over the charge of any documents, which were with them at the time they left the service. Paragraph 4 (not numbered) of the complaints merely reproduces the requirements of Clause 10 of the agreements referred to above but there is no allegation anywhere in the complaints that any documents of the company were in possession of the petitioners and that they did not return them to the company at the time they left their services. In para 7 (not numbered) of the complaints in pointing out the breaches of the agreement of service it is pointed out under head (2) that the petitioners have not handed over the charge and have not complied with Clauses 10,11,16,18 and 20 of the agreement. It is only in paragraph 4 of the verification statement of the aforesaid Arun Joshi, Manager, Production and Administration of the respondent No.1-Company that there is a vague statement that the accused petitioners have left the company and had gone away without handing over all the documents which were in their possession in respect of technical know-how which the respondent-company had developed. Besides this in earlier paragraph 3 of his verification statement, there is a general statement made by him that while giving up the service and giving resignation, the petitioners have not fulfilled the necessary terms and conditions of the Agreement under which their service was subject.
9. It is thus clear that neither in the complaints nor in the verification statement, any specific documents are mentioned which were in possession of the petitioners at the time they left the service. There is not even a general statement which documents of the company used to be in their possession during their services which they would be required to hand over at the time of leaving their service. In my view if there were any documents in possession of the petitioners which they did not return, it would be a fact which the company would certainly know and would have referred to, if true, in its complaints or at any rate in the verification statement of the Manager of the respondent No.1 would have named them specifically instead of making a bald and vague statement in that regard. I may observe that the complaints in the instant cases are filed not by any layman but are file by a reputed company normally assisted by legal Counsel. In the absence of the specific statement in regard to the documents in possession of the petitioners which they did not return, it is not possible to believe prima facie that there were certain documents in possession of the petitioners which they did not hand over at the time they left their service.
10. As regards the second aspect relating to the technical know-how, which, according to the respondent No.1, the petitioners have gained during their special training in their service in the company, in my view, no offence can be said to be committed by the petitioners by merely carrying the said technical know-how in their hands. It is only when that technical know-how is used by them in contravention of the aforesaid provisions of their Agreement of Service that it can be said that any offence as alleged against them under sections 408 and 420 I.P.C. is prima facie committed by them.
11. Again in this regard, although there is bald statement in Paragraph 7(not numbered) of the complaints that the petitioners have used the technical know-how of the respondent No.1-Company, it would be clear from the verification statement of the said Shri Arun Joshi, the Manager of Production and Administration of the respondent No.1-Company that the new competitor company which the petitioners are alleged to have joined was coming up in Delhi. According to him, the name of the said company was Polyflex Company whose head office is situated in Hotel Surya. It is also not disputed on behalf of the respondent No.1-Company that the factory of the said company is not fully established but is in the process of being erected. It cannot, therefore, be said that the petitioners have any occasion to use, much less have used their technical know-how in the new company because the factory itself is not fully established and the production itself has not yet started in the new company. Unless the factory starts functioning it cannot be said that the petitioner have used their technical know-how in the said company.
11-A In my view these complaints are thus really premature. It cannot be said on the basis of the above facts that the petitioners have used the technical know-how of the respondent No.1-Company which is a requirement for an offence under section 405 I.P.C. relating to criminal breach of trust. It cannot also be said till the technical know-how is used by them that they cheated the company by fraudulently or dishonestly gaining the technical know-how of the respondent No.1-Company for being used in other company.
12. It is well settled that a criminal prosecution is a serious matter and would amount to harassment of the accused and also to the abuse of the process of the Court if without any sufficient grounds it is allowed to proceed. Care, therefore, be taken to see that it is not allowed to be used as an instrument of harassment or for seeking private vendatta or with an ulterior motive to pressurise the accused. In the instant cases, it is therefore, necessary to see that the petitioners who are young engineering graduates and who perhaps have left employment for better prospects are not unnecessarily harassed by these criminal prosecutions sought to be launched against them. It appears that the learned trial Magistrate has not applied his mind to the requirements of sections 408 and 420 I.P.C. Before issuing process against the petitioners for the offences thereunder. As already shown, in the absence of specific reference to the specific documents in the complaints and the verification statement and also in view of the fact that the alleged technical know-how cannot yet be said to be put to any use by the petitioners since the factories of the new company which they are alleged to have joined are not fully established and have not started functioning, there are no sufficient grounds to proceed against the petitioners for offences under sections 408 and 420 of the I.P.Code. The learned trial Magistrate was, therefore, in error in issuing process against them in this cases. His order in these cases directing issue of process against them are liable to be set aside.
13. In the result, the instant writ partitions are allowed. The impugned orders of the learned trial Magistrate directing issue of process against the petitioners are set aside and the complaints filed by the respondent No.1-Company against them are dismissed. Rule is made absolute in the above terms in these writ petitions.