HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.11654 of 2014
ORDER:
1. The petitioners/A1 to A3 are accused in CC No.739 of 2014 being tried for the offence.
2. The second respondent filed a private complaint before the XI Additional Chief Metropolitan Magistrate at Secunderabad stating that the 2nd respondent company is a private limited company and is authorized to sell Microsoft Software. 1st petitioner is a company and 2nd and 3rd petitioners are directors of the company. On 10.02.2011, the petitioners placed purchase orders for Rs.95,20,741/- for purchasing licenced software. However, part payment was made and balance amount of Rs.38,97,000/- was outstanding. For the said reason of non payment of balance amount, the offence under Sections 420 and 406 of IPC and Section 63-B of Copyrights Act, 1957 have been committed.
3. Learned Magistrate, having recorded the sworn statement of the representative of the 2nd respondent company namely 2 M.Ramu, took cognizance of the offence under Sections 420 and 406 of IPC and also under Section 63-B of Copyright Act.
4. Learned counsel for the petitioners submits that the transaction is purely a civil transaction and admittedly, out of the outstanding amount of Rs.95,20,741/-, the major outstanding was paid and there is due an amount of Rs.38,97,000/-. He relied upon the judgment of Hon'ble Supreme Court in the case of Vinod Natesan v. State of Kerala1, wherein the Hon'ble Supreme Court upheld the order of the High Court quashing the proceedings for the offences under Sections 420 and 406 of IPC when the accused therein failed to repay the part of the agreed amount. Counsel submitted that in the said circumstances, the complaint does not make out any criminal offence, for which reason, the case against the petitioners has to be quashed.
5. On the other hand, learned counsel appearing for the 2nd respondent would submit that there is an offence under Sections 420 and 406 of IPC. Cheating and misappropriation 1 (2019) 2 Supreme Court Cases 401 3 are made out for the reason of taking supplies from the 2nd respondent/complainant company and not paying outstanding amount. Further, the offence is also violation of Section 63-B of Copyright Act.
6. Having perused the complaint and the sworn statement of the representative of the 2nd respondent company, the transactions are between the purchaser and seller. The 2nd respondent company being an authorized agent of Microsoft, sold software with licence to the petitioners. The petitioners had admittedly made nearly 2/3rd payment of the outstanding.
7. There is no allegation in the complaint that there was any false statement that was made by the petitioners while purchasing licenced software of the Microsoft from the 2nd respondent company. In the normal course of business, the goods were delivered on credit basis as seen from the transactions and subsequently, if the petitioners failed to make good the part payment, the said transaction cannot be said to be fraudulently made, attracting either the offence of cheating or criminal misappropriation. The said goods were 4 delivered when the petitioners intended to purchase the goods and it is not the case of any criminal misappropriation of any property that was entrusted.
8. Section 63-B of Copyright Act reads as follows:
Section 63B in the Copyright Act, 1957 "[63B. Knowing use of infringing copy of computer programme to be an offence.--Any person who knowingly makes use on a computer of an infringing copy of a computer programme shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that where the computer programme has not been used for gain or in the course of trade or business, the court may, for adequate and special reasons to be mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees."
9. No where in the complaint or in the sworn statement it is alleged that the petitioners have intentionally used a computer of an infringing copy of a computer programme. Admittedly, software supplied to the petitioners was licenced. In the said circumstances, the question of infringing of computer programme does not arise. For the said reasons, the 2nd respondent/complainant has failed to make out any of the offences under Sections 420 and 406 of IPC and also under Section 63-B of Copyright Act.
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10. Accordingly, the Criminal Petition is allowed and the proceedings in CC No.739 of 2014 on the file of XI Additional Chief Metropolitan Magistrate at Secunderabad, against the petitioners are hereby quashed.
__________________ K.SURENDER, J Date: 28.09.2022 kvs 6 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.11654 of 2014 Date: 28.09.2022.
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