Jaydeep Madhukar Wakankar vs The State Of Andhra Pradesh
2022 Latest Caselaw 3944 AP

             THE HONOURABLE SRI JUSTICE D.RAMESH

         CRIMINAL PETITION NOS.6284 AND 6285 OF 2021

COMMON ORDER:

      Since these criminal petitions arise out of the same crime,

both the petitions are being disposed of together with a common

order.


2.    These two criminal petitions are filed under Section 482

Cr.P.C. seeking to quash the proceedings in C.C.3515 of 2021

(arising out of FIR No.91/2021 dated 12.06.2021) on the file of

Chief Metropolitan Magistrate Court, Vishakhapatnam in taking

cognizance of offences under Sections 43, 65, 66, 66B, 66D of the

Information Technology Act, 2000 and Section 204, 120B of IPC.


3.    Heard Sri Siddharth Luthra and Sri Dammalaptai Srinivas,

learned senior counsel appearing for Sri V.Vimal Varma and Sri

Ginjupalli    Subba   Rao,   learned   counsel   appearing   for   the

petitioners/A1 and A2 respectively, Sri Dusyanth Reddy, learned

Special Public Prosecutor appearing for the respondents 1 and 2, and

learned senior counsel Sri Naga Mutthu, and Sri D.Purna Chandra

Reddy, learned counsel appearing for the respondent No.3/defacto

complainant.

4. The main contents of the complaint made by M/s.Mahathi

Software Pvt. Ltd/defacto complainant [Respondent No.3 herein] are

that M/s.Allscripts abruptly terminated the MOU with a notice on the

14th May, 2021, thereafter it has breached the privacy of the

complainant Company by illegally accessing the servers and removed

the subscription and potentially confidential data and further

disabled administrative access of complainant's to its own Azure

Tenant from the Complainant's office at Vizag by obtaining global

admin privileges to Complainant's tenant, for illegal gains.

5. Main allegations in the charge sheet are that M/s.Mahathi

Software Pvt. Ltd/defacto complainant entered in to an agreement

[Statement of Work (SOW)] with "ALLSCRIPTS" on 18.05.2018. i.e.

between M/s.Mahathi Software Pvt. Ltd/defacto complainant and

M/s.Allscripts. As per the SOW, M/s.Mahathi Software Pvt. Ltd/

defacto complainant will provide mobile application development

and IT services to M/s.Allscripts. The term of the SOW was for a

period of 3 years i.e., from 18.05.2018 to 17.05.2020.

6. On 14.05.2021 M/s/All Scripts sent a mail from

[email protected] to their MD Dr.C.Padhmavathi's mail ID

and another mail ID stating that they are terminating the said

SOW. M/s.Mahathi Software Pvt. Ltd. uses AZURE Cloud

computing services to run their company's and clients' confidential

data and other services. M/s.Mahathi Software Pvt. Ltd/defacto

complainant provided "Global Admin Privileges" to the Allscripts for

administrative convince.

7. That Allscripts and its officials on 14-05-2021, without

M/s.Mahathi Software Pvt. Ltd/defacto complainant company's

permission accessed company's user accounts and

removed administrative access and removed their User Interface

Layout and the intellectual property of M/s.Mahathi Software Pvt.

Ltd. from 14-05-2021 to 20-05-2021, the LW.1 company/3rd

respondent could not access their data and confidential

information, after that they came to Cyber Crime Police Station and

lodged a complaint. The petitioner in Crl.P.No.6284 of 2021 is

arrayed as accused No.1 and the petitioner in Crl.P.No.6285 of

2021 is arrayed as accused No.2 in the charge sheet.

8. The contention of the Petitioner in Crl.P.No.6284 is that the

petitioner is the Vice President, Finance and Designated Partner of

All Scripts(India) LLP formed by a Limited Liability Partnership

Agreement between Allscripts Healthcare IT (Mauritius) and

Allscripts Healthcare International Holdings LLC. Further, he is

not a Managing Partner as stated in the charge sheet but a

Designated Partner. Neither he nor the Allscripts (India) LLP have

entered into any agreement with the Respondent No.3.

9. In Crl.P.No.6285 of 2021, the contention of the petitioner is

that the petitioner/accused No.2 is the Director, Information

Systems at Allscripts (India) LLP and is primarily concerned with

desktop and network services and corporate server maintenance

for Allscripts (India) LLP, and that the designation -Director, is only

a designation and not a statutory position in Limited Liability

Partnership, the petitioner is not involved in, nor does he have any

responsibility for, any software coding work. The petitioner, who is

employee of Allscripts (India) LLP, is being dragged into the said

proceedings only to pressurize Allscripts Healthcare, LLC to

withdraw their complaint against the respondent No.3 in the

United States.

10. Main contention of the petitioners is that there is an ongoing

litigation between Allscripts Healthcare, LLC (USA) and Respondent

No.3 before the United States District Court of Delaware, as

Allscripts Healthcare, LLC had outsourced certain work to

Allscripts (India) LLP. Though they have the same first name,

Allscripts Healthcare, LLC and Allscripts (India) LLP are two

different entities and the later one have no connection with dispute

between the Allscripts Healthcare, LLC and Respondent No.3.

Therefore, lodging of FIR against the petitioners herein is a counter

blast to the proceedings in USA, only to pressurize the Allscripts

Healthcare LLC to withdraw the proceedings in USA present

complaint is made.

11. It is further contended that the petitioners were implicated as

accused Nos.1 and 2, since cyber crime police were unable to

proceed against the Allscripts Healthcare, LLC and its employees

located in USA, commenced the investigation against Allscripts

(India) LLP. Petitioners were also not aware of the merger,

acquisition or any agreement until Respondent No.2/Cyber crime

police visited the petitioners in and handed over 41-A Cr.P.C

notice. Only after receiving 41A notice petitioners were came to

know about the SOW and the proceedings in USA by letters from

Allscripts Healthcare, LLC, USA.

12. The fact that SOW was entered between Allscripts

Healthcare, LLC and Respondent No.3 was admitted by the

Respondent No.3 in USA Court proceedings. Further a notice

clause in the SOW stated that any notice on Allscripts to be

addressed to Raj Toleti. (currently Director of Respondent No.3).

Therefore, the terms of the SOW were also to be construed in

accordance with the laws of the State of Florida.

13. M/s.Allscripts Healthcare, LLC asked Microsoft to transfer all

of Health Grid's Microsoft accounts, subscriptions and

administrators for the MPE applications from the former Health

Grid enterprise account to the enterprise account of Allscripts

Healthcare, LLC with Microsoft. Microsoft completed the said

transfer with an effective date of 01.11.2018. Thereafter, all

amounts billed for the Microsoft Azure software and services

supporting the MPE applications and environment were billed to

and only paid by Allscripts Healthcare LLC under the Microsoft

enterprise account of Allscripts Health Care LLC. Respondent No.3

started providing support to Allscripts Healthcare LLC in its

development and enhancement of the MPE applications and code

pursuant to that SOW. Mr.Raj Toleti was instrumental in

fructifying this agreement.

14. Further it is submitted in the petitions that Mr.Raj Toleti was

also arrayed as a party in the USA litigation. He was the founder

of Health Grid, Mahati and Andor, and was employed with

Allscripts Healthcare, LLC pursuant to the acquisition of Health

Grid. After the acquisition, Mr. Raj Toleti entered into SOW with

Respondent 3 representing Allscripts Healthcare, LLC, which is the

reason his contact coordinates are mentioned in the notice clause.

Subsequently, Mr.Toleti and Allscripts Healthcare, LLC parted

ways on 31-03-2021 with confidential settlement agreement and

now under his guidance (who is the promoter and director of

Respondent No.3), Respondent No.3 has filed a criminal complaint.

15. On 06-09-2019 respondent No.3 has assigned all of its rights

and obligations under the SOW, to Andor Health LLC through an

assignment agreement. Hence, Respondent No.3 has no basis to

claim breach of agreement with Allscripts Healthcare, LLC and no

rights under the SOW to demand access to the data or any other

and no intellectual property right to any aspect of the MPE

applications. As a result of the assignment agreement, Andor

Health LLC billed Allscripts Healthcare, LLC for services rendered

and the same was paid by Allscripts Healthcare, LLC to Andor

Healthcare, LLC. Therefore, the Respondent No.3 did not have any

rights to/in/or under the Microsoft enterprise account of Allscripts

Healthcare, LLC.

16. An email was sent by Kim Franks to Respondent No.3 on

14.05.2021 as Allscripts Healthcare, LLC did not intend to extend

the SOW, Respondent No.3 has to cease the use of Allscripts

Healthcare, LLC's materials, software and confidential Information.

In view of the pending expiry of SOW, Allscripts Healthcare, LLC

revoked the administrative access that had been provided to

Respondent No.3. Pursuant to the SOW, several days after the

administrative rights of respondent No.3 were revoked, (after the

expiry of SOW), the Respondent no.3 reached out to Mr.Jeff Franks

on 19-05-2021 and advised him that respondent No.3's ability to

administer its Office 365 account had been impacted by the

change, for which, Mr.Franks responded and agreed to work with

Respondent No.3 for which a reply of Thank You was sent by

Respondent No.3. Thereafter, on 17.05.2021 a complaint was filed

by Allscripts Healthcare LLC against inter alia respondent No.3

before the United States District Court for the District of Delaware

alleging violation of contractual obligations and misappropriation

of the trade secrets of Allsripts Healthcare LLC. The complaint was

later amended on 14.06.2021 and thereafter on 06.08.2021. The

subject matter of the USA court proceedings is with regard to the

issue of access of Allscripts Healthcare LLC's Mobile Patient

Experience and Microsoft Azure Tenant, wherein the Respondent

No.3 have entered appearance and also filed counter claim in the

USA court proceedings.

17. On 12.06.2021, as a counter blast to the complaint by

Allscripts Healthcare LLC before the Delaware Court, Respondent

No.3 filed a complaint with Police Cyber Crime, Visakhapatnam

City with allegations that (i) a MOU was entered into between

Complainant and Allscripts Health Care Technologies Pvt. Ltd. on

18.05.2018; and (ii) this MOU was abruptly terminated on

14.05.2021. Further alleged that Allscripts breached the privacy of

respondent No.3 by illegally accessing servers and disabling of

administrative access of respondent No.3 to the Azure Tenant for

illegal gains.

18. Allscripts Health Care Technologies India Pvt. Ltd is a

subsidiary of Allscripts Healthcare Solutions Inc. separate from

Allscripts (India) LLP. It is reiterated that Allscripts Healthcare

Technologies India Pvt. Ltd is essentially a dormant entity with

extremely limited or no business taking place since about

December 2017. It is to be noted that the complaint filed by

Respondent No.3 was nearly one month after the alleged incident

and was also a couple of weeks after Allscripts Healthcare, LLC had

initiated the litigation against respondent No.3 and the related

entities in United States. Therefore, it is abundantly clear that the

criminal complaint is a counter blast to the U.S. litigation.

19. It is further contended that the respondent No.3 on

30.07.2021 also sent a legal notice to Allscripts Healthcare LLC,

Allscripts (India) LLP and Allscripts Healthcare Technologies Pvt.

Ltd., alleging that the recipients had stolen Respondent No.3's data

and demanded the return of respondent No.3's stolen IP. All the

recipients duly responded to the above-mentioned legal notice.

Further they have reiterated that they are separate and distinct

entities from Allscripts Healthcare LLC and that they do not have

any relation with respondent No.3 or the SOW. Though the

Allscripts Healthcare LLC sent 3 letters to the respondent No.3

through their USA Counsel requesting them to clarify/detail

information breached, but there has been no reply thereto, that

itself indicates that it is a counter blast case.

20. The petitioner/accused No.1 apprehending arrest, by virtue

of being the designated partner of Allscripts (India) LLP, filed W.P.

No.14029 of 2021 challenging the issuance of Section 41 A Cr.P.C.

notice before this Hon'ble Court. This court vide its order dated

16.07.2021 had prima facie noted that Allscripts Healthcare LLC,

USA and Allscripts (India) LLP were different entities and that the

petitioner was not concerned with administrative affairs of

Allscripts Healthcare LLC, USA and accordingly directed the

respondent No.2 to not to take any coercive steps against him

including arrest till the next date of hearing and extended from

time to time, and is in operation.

21. The petitioner/accused No.1 also filed a petition in

Crl.P.No.4157 of 2021 for quashing of FIR No.91 of 2021, wherein

this court, after hearing arguments at length, on merits of the

matter, directed the Investigation Officer not to take any coercive

steps against the petitioner, while allowing the Investigation Officer

to proceed with the investigation.

22. On 20.09.2021 the respondent No.2 filed the charge sheet

against inter alia petitioner (accused NO.1) under Sections 43, 65,

66, 66-B, 66-C, 66-D of the IT Act and Section 204, 120 IPC before

the Chief Metropolitan Magistrate, Vishakhapatnam which is being

challenged in the present petition.

23. Petitioners have relied on several grounds to quash the

proceedings against them, those are i) Company was not made a

party, ii) no specific allegations are made out against the

petitioners iii) ingredients of alleged offences are not met.

24. While the allegations in the charge sheet have been made

against Allscripts (India) LLP but it has not been made an accused.

The petitioners cannot be held vicariously liable for the acts of the

company without making the company an accused.

25. Further contented that the ingredients of alleged offences

against petitioners are not met out. The petitioners have fully

cooperated with the investigation and shared all necessary

documents within knowledge as evidence by replying to the notices

served under Sections 160 and 91 of Cr.P.C.. There are no specific

allegations against the petitioners with respect to the offences

under IT Act, as there is no mention of the data which was

allegedly stolen and the complaint dated 12.06.2021 as well as the

charge sheet, both are silent on what data was allegedly stolen by

the accused.

26. Section 66 B deals with Punishment for dishonestly receiving

stolen computer resource or communication devise. However, a

perusal of the charge sheet and complaint would demonstrate that

there is no allegation of receiving stolen computer resource of

communication device against the petitioners and hence, Section

66 B of the IT Act would not apply to the present case.

27. Further it is submitted that the contents of the charge sheet

and the complaint, would demonstrate that the ingredients of

Section 66 C are not met as there was no fraudulent misuse of the

password or signature of the respondent No.3; also not even would

reveal the identity of theft to attract the Section 66 D of the IT Act.

28. Further contended that the ingredient of Section 120(B) of

IPC are not met in the particular facts of the case as the petitioner

had no knowledge of the incidents alleged in the complaint and

charge sheet.

29. Further the petitioner relied on the judgment of the Hon'ble

Supreme Court in Ravindranatha Bajpe V.Mangalore Special

Economic zone Ltd.,1 it is held that the issuing summons or

process against a person is a very serious matter and therefore,

unless there are specific allegations and the role attributed to each

accused more than the bald statement, the Magistrate ought not to

have issued the process. Therefore, in the instant case, the order

taking cognizance and issuing summons is a non-speaking

mechanical order without any reasons and application of mind,

thus liable to be quashed.

30. Counter affidavit was filed on behalf of the respondent No.3.

The averments made in the counter are as follows:

It is alleged that present petition is filed with the untenable

grounds by suppressing the material facts and that there are

2021 SCC online SC 806

absolutely no grounds much less a valid ground to quash the

proceedings against the petitioners. As per the audit report

dated 23.09.2020 filed before the Ministry of Corporate Affair filed

by the AllScripts (India) LLP that the petitioner/accused No.1 along

with Mr.Eric Lee Jacobson who are the designated partner, it

shows that profits generated for the year 2020 as

Rs.38,15,05,577/- and profits generated for the year 2019 as

Rs.37,24,73,119/- and the total profits are routed back to the

foreign entities. Therefore, the foreign entities exercise complete

control over finances, operation and governance of Indian Entities.

If the Indian Entities had any control or were independent as

contended by the petitioners, they would retain at least a minor

portion of profits. The LLP is engaged in providing software

development services to Allscripts Healthcare LLC, USA (an entity

under common control). From, the quantum of profits generated it

is clear that Indian Entity is undertaking large scale of software

development works. However, from routing of all the profits back

to the foreign entities it is clear that the Indian Entity is not

independent or distinct but working for the foreign entity. That

Allscripts (India) LLP is an alter ego of Allscripts Healthcare LLC,

USA. That the foreign entity Allscripts Healthcare LLC, USA

exercised a dominant influence on the management of LLP and has

direct control and supervision over its governance. The foreign

Entity undertook detail consideration of financial operations of LLP

on a regular basis.

31. Further it is contended that the 3rd respondent, as per the

agreement made on 18.05.2018, has fulfilled all the terms of the

agreement under the project scope and continued until

17.05.2021. The 3rd respondent received an email from Mr.Kim

Franks, VP, Consumer Engagement of Allscripts group from the

email address [email protected] on 14.05.2021 informing

that they are not renewing the agreement dated 18.05.2018.

Therefore, the agreement was terminated as on 14.05.2021. Since

the termination of the agreement, on numerous occasions

Allscripts group and its officials have breached the privacy of the

3rd respondent and removed/copied the 3rd respondent's

confidential data from the 3rd respondent's Azure tenant in India.

That the Allscripts group also disabled administrative access of the

3rd respondent's users to its own Azure tenant from Office in

Vishakhapatnam illegally and without their consent. Therefore,

the respondent No.3 have engaged support of Microsoft and its

resellers in order to restore access and admin privileges to the

tenant it rightfully has owned for the last 6 years. The 3rd

respondent has documented evidence of unauthorized and illegal

activities of the Allscripts group on 19.05.2021 and on 21.05.2021

within the 3rd respondent's Azure tenant in India. These illegal

activities are punishable under Indian Penal Code, 1860 and

Information Technology Act, 2000. Therefore, the 3rd respondent

filed a criminal complaint at Cyber Crime Police Station in

Visakhapatnam city, Andhra Pradesh on 31.05.2021 for the

offences of theft, mischief, forgery, cheating, hacking, cyber crimes,

criminal conspiracy and criminal breach of trust under sections

378, 408, 420, 425, 426, 468 r/w 120 B of Indian penal Code,

1860 and under Sections 43, 65 and 66 of Information Technology

Act, 2000, which is registered as F.I.R.No.91 of 2021 under

sections 65, 66 of Information Technology Act, 2000.

32. Pursuant to the said complaint, the investigation officer

conducted investigation, examined the defacto complainant and

other witnesses, basing the said statements, added accused 1 to 7

in this crime. During the Investigation officer seized a Laptop and

Cell phone form the possession of accused No.1 under cover of

mediators report. After completion of investigation, investigation

officer filed charge sheet, which is numbered as C.C.No.3515 of

2021.

33. Further it is contended that if the Indian Entities had any

control or were independent as contended by the petitioners, they

would retain at least a minor portion of profits. The investigation

also revealed that M/s. Allscripts India LLP does not have any

financial autonomy and that it is an alter ego of the foreign entity,

as the investigating officer found an audit report dated 23.09.2020

on the site of Ministry of Corporate Affairs, wherein it is shown that

the profit generated by Allscripts Healthcare (India) LLP for the

2019-2020 is completely transferred to its partner entities i.e., i)

Allscripts Healthcare IT (Mauritius) Ltd and ii) Allscripts Healthcare

International Holdings LLC, which was accepted by the

petitioner/A1 in his confession statement. Further in an enquiry

made with Customer Relation Manager of Web.com/Newfold.com

to provide the details of the domain "Allscripts.com", a reply was

received on 26.08.2021 through email, which revealed that the

domain name Allscripts.com belongs to the organization name:

Allscripts Healthcare LLC situated at USA. The officials of

Allscripts (India) LLP including accused No.1 and accused No.2

were using the email with the same domain extension.

34. Further it is contended in the counter that during the course

of enquiry, the investigation revealed from the statement of Lw.9,

that the petitioner worked on the SOW dated 18.05.2018 on the

Health Grid product to be implemented at Sahayadri Hospital in

the year 2019. He even acknowledge through mail dated

26.02.2019 wherein he replied, "wow! Great beginning Nihar!!". In

further course of investigation, the investigation Officer has

accessed the laptop of Mr.Nihar Sheth in his presence and found a

folder named "Sahayadri Hospitals"; upon opening the same, they

found may emails, which established the alleged crime and the

involvement of Jaydeep Madhukar Wakanakar/A1 and Allscripts

(India) LLP, however, most of the data was wiped out by the

accused. Therefore, the petitioner/A1 deleted/tampered with the

evidence to hide his involvement with the help of A2 and A3, and

its officials are co-conspirators in the offences committed against

the 3rd respondent herein.

35. The Indian Arm of the parent entity primarily deals with

development of the computer software for the foreign parent entity.

Therefore, for the Indian Arm to say that it has no role in compute

related offences committed in India by its parent company is

baseless and false, when its primary role is development of

computer software and supplying data to M/s.Mahati software Pvt.

Ltd. Pursuant to the SOW. With the above information it is clear

that Allscripts Healthcare LLC and Allscripts India LLP are not two

distinct Entities but part and parcel of Allscripts.

36. The respondent No.3 company is the sole owner of Azure

Tenant Cloud Services and the petitioner in conspiracy has

tempered and stole the user interface source code, confidential

data and intellectual property and also blocked the admin

privileges of the Azure Tenant of Mahathi preventing them the

access. Therefore, the said complaint dated 31.05.2021 is not a

counterblast to proceedings pending before the Court for the

District of Delaware and both are independent. Moreover, the

proceedings in said Court are in civil nature, where as the nature

of proceedings in India is criminal in nature.

37. Replying to the contentions raised by the petitioners, that the

prosecution against the petitioners is ought to be quashed as the

Company is not made as a party, the 3rd respondent submitted

that as per "principle of attribution" a body corporate can only held

liable when it knows or forms an intention through its human

agents, but circumstances may be such that the knowledge of the

agent must be imputed to the body corporate. Thus, from principle

of attribution it is clear that it is not mandatory to make the body

corporate a party and human agents can be solely made party.

Only under special circumstances along with the human agent's

body corporate is made a party if it knows or forms an intention

along with human agents.

38. Further, with regard to the contention of the petitioners that

there are no specific allegations made out to attract the ingredients

of the offences alleged, 3rd respondent replied that the petitioner

has committed the acts in his individual capacity, along with his

colleagues in the parent entity. That from the statement of LW.9/

it is clear that the petitioner worked on SOW dated 18.05.2018 on

the Health Grid product, to be implemented at Sahayadri Hospital,

in the year 2019. He even acknowledged through the mail dated

26.02.2019 wherein he replied, "wow! Great beginning Nihar!!",

that to hide his involvement in the crime, in conspiring to tamper

and stealing the User Interface Code, confidential data along with

the other accused, he tried to evade the investigation and failed to

appear before the Investigation Officer on several date to the

notices served under section 41-A Cr.P.C.. He appeared only on

26.08.2021 but he failed to divulge any information. Even when he

handed over his mobile and laptop to the investigation officer, he

wiped out all the data including the communication between him

and other accused, who are A3 to A8. Therefore, in the charge

sheet it is clearly mentioned that the petitioner has stolen the User

Interface Code and confidential data pertaining to patients.

Therefore, the contention of the petitioners that there are no

specific allegations against the petitioners is baseless.

39. Since the petitioners has deleted/tampered with the evidence

to hide their involvement with the help of A3 and A8, all the

documentary evidence, which is crucial to determine the criminal

conspiracy and their involvement in the crime, to cover the role of

the petitioners in the crime, therefore, the conduct of the

petitioners satisfies the essential ingredients under Section 204 of

IPC and the petitioner conspired to tamper and steal the User

Interface Code, confidential data and intellectual property of the

respondent No.3, which attracts the ingredients under Section 65,

66, 66-B, 66-C, 66-D of Information Technology Act, 200 and

Section 204, 120-B of Indian Penal Code, 1860.

40. Counter filed by the 2nd respondent. In the counter it is

submitted that based on the complaint of the 3rd respondent

herein, present crime was registered and the investigating officer

examined the defacto complainant and recorded his statements

separately. Basing on the said statement, the investigation officer

added the accused 1 to 7 in the crime. During the course of

investigation, the investigation officer seized a laptop and cell

phone from the possession of Accused No.1 and under cover of

mediators report. Further the investigation officer recovered laptop

from LW.9/Nihar Sheth, who is employee of the petitioner/Accused

No.1 Company for the purpose of further investigation. The

investigation officer also examined as many as 09 witnesses and

recorded their statements as Lws.1 to 9.

41. Further the Inspector of Police, Cyber Crime Police Station,

Visakhapatnam City went to office of the M/s.Mahathi Software

Pvt. Ltd. and collected the information which is related to the

offence. Complainant showed one email hard copy which is

received from Allscripts on 14.05.2021 from Mr.Kim Franks

through email [email protected] stating that "Allscripts

does not intend to extent or renew the term" to [email protected] As

per the complaint on 15.05.2021, the network administrator as

part of his regular work tried to log into M/s.Mahathi software Pvt.

Ltd., cloud services, the name of the cloud services is Azure Tenant

Cloud Management. But access was denied and it showed a

message that "your account ([email protected]) does

not have permission to view or manage this page in Microsoft 365

admin centre."

42 He further stated that from 15.05.2021 to 20.05.2021 there

was no access of Azure Tenant Cloud Management to M/s.Mahati

Software Pvt. Ltd. and later on 17.05.2021 the complainant

contacted the K.G.N. Technologies and informed them that he was

not able to log into the Azure Tenant and later the K.G.N.

Technologies contacted the Microsoft Authorities, and on

20.05.2021 the K.G.N. Technologies provided the admin access of

Azure Tenant Cloud Management to M/s.Mahathi Software Pvt.

Ltd. Subsequently, they came to know that they have lost some

data.

43. Further it is averred that on 08.07.2021 the complainant

was re-examined by Inspector of Police, Cybercrime Police Station,

Visakhapatnam City and he submitted few documents i.e., mail

correspondence between Ms.Pallavi Chuhan, Technical Advisor,

Microsoft and Drew Jenkel, Chief Architect, Andor Health. From

the same it was revealed that the Microsoft Azure Tenant

ID:1566f334-9b33-4f7d-178b-d6ece1469c38 is owned by

M/s.Mahati Software Pvt. Ltd. and the complainant has also shown

an email dated 29.06.2021 from Ms.Pallavi Chauhan, Technical

Advisor at Microsoft ([email protected]) addressed to his

colleague, wherein it was stated "Based upon the logs, I can

confirm Waren Nash removed the subjected members from the

role". It clearly proves that officials of Allscripts illegally gained

access and removed Global Admins of Mahati, it clearly shows the

involvement of its officials in the crime.

44. Based on the statement of the complainant, the Investigation

Officer addressed a letter on 26.06.2021, to Microsoft Authorities

to confirm the Azure Tenant Cloud ownership. Then the Microsoft

Authorities replied on 19.07.2021 that, "the customer is solely in

control of the administrator account, which allows them to retrieve

the required information more quickly and efficiently than

Microsoft", it is proved that the rightful owner of the Azure tenant

is M/s.MahathiSoftware Pvt. Ltd. Basing on that Inspector of

Police, Cyber Crime Police Station, Visakhapatnam city served a

160 Cr.P.C. notice on 20.07.2021. Thus, the primary evidence of

all the witnesses confirmed the prima facie case against the above

noted accused.

45. Further they have averred that on 13.07.2021, the

investigation officer served a notice under Section 41-A cr.P.C to

A1/petitioner to appear before the investigation officer on

15.07.2021, but he failed to appear. During the course of further

investigation, again notice under section 41-A Cr.P.C. was served

on the accused No.1 i.e. petitoner in 6284 of 2021, finally on

26.08.2021 the accused appeared before the investigation officer

and his confessional statement was recorded on 26.08.2021 and

27.08.2021. But intentionally he did not provide the details of the

relationship between Allscripts India LLP and Allscripts Healthcare

LLC, USA and his role in the crime and also tampered with

evidence under the Guidance of his legal team through email

communication.

46. Further the investigation also reveals that M/s.Allscirpts

India LLP does not have any financial autonomy it is an alter ego of

the foreign entity. LW.16/ searched on the website of Ministry of

Corporate Affairs for the public documents of Allscripts India LLP

and found one audit report dated 23.09.2020, wherein it shown

that the ultimate parent is Allscripts Health Care Solutions Inc.,

USA founded in 1986 and is incorporated in Delaware with

principal executive offices located at 222 Merchandise Mart Plaza,

Suite 2024, Chicago, Illinois 60654. Further, the profit generated

for the years 2019 and 2020 by the Indian Entity i.e., Allscripts

India LLP is completely transferred to its partner entities

(i)Allscripts Healthcare IT (Mauritius) Limited and (ii) Allscripts

Healthcare International Holdings LLC; That Allscripts India LLP

generated a profit of Rs.37,24,73,119/- for the year 2019 and

Rs.38,15,05,577/- for the year 2020 and the entire of these profits

are transferred to foreign parent entities. The audit report further

stated that Allscripts India LLP is engaged in providing software

development services to Allscripts Healthcare LLC, USA. Further,

the confession Statement revealed that Allscripts India LLP profits

to the extent of 99.92% is sent to Allscripts Healthcare IT

Mauritius Limited and remaining profit share is sent to Allscripts

International Holdings LLC, USA.

47. Further the Investigation Officer addressed a letter over email

on 04.08.2021 to Customer Relation Manager of

web.com/newfold.com to provide details of the domain

allsciprts.com, the details of the activity logs including

Registrant/administrator at the time of accessing the domain, the

contact details, email id, mobile number, address etc. In reply to

the same, he received email on 26.08.2021 from M/s.Bethena

Dasher, paralegal Legal at M/s.Newfold Digital Inc. with detailed

information and from the same it revealed that the domain name

Allscripts.com belongs to the organization name: Allscripts

Healthcare LLC situated at 222 Merchandise Mart, Chicago, IL

USA. The officials of M/s. Allscripts India LLP including the

petitioners i.e. Jaydeep Madhukar Wakankar (A1) and Jignesh

Vijaya Kumar Pandya (A2) were using the email with same domain

extension "allscripts.com" for communication which was used by

the Allscripts Healthcare LLC, USA. Therefore, it is clear that

Allscripts Healthcare LLC and Allscripts India LLP are not two

distinct entities but one and the same as the officials were using

domain name with the same extension for communication.

48. Further submitted that on 31.08.2021 notice under Section

91 Cr.P.C. was issued to the accused No.2, seeking for information

and he sought time till 02.09.2021. However, with an

apprehension that the accused would tamper the evidence, two

teams one headed by LW.4/ visited Pune and the other headed by

the Inspector of Police, Cyber Crime Police Station to Vadodra, to

examine Mr. Nihar Seth, Mr.Jignesh Pandy, Mr.Jaydeep Wakankar

and Matilda Charles. On 03.09.2021 notice under section 160 of

Cr.P.C. was issued to the petitioner/Accused No.2, to which he did

not respond. The petitioner/accused No.2 is a Director of

Information Securities at Allscripts India LLP and he is aware

about the SOW and confidential data belonging to Mahati Software

Pvt. Ltd, given his expertise it is likely, he along with Warren Nash

together conspired to access and deleted the admin access from

Azure Tenant belonging to Mahati and to cover his wrongdoings

evaded the investigation.

49. On 03.09.2021 the petitioner/Accused No.1 was put to

question by LW.14/ about the business transaction between

M/s.Mahati and Allscripts India LLP and his involvement/role

along with his colleague Mr.Nihar Sheth. He denied his role and

the said transaction and instead stated that he was not aware

about the sales operation of Mr.Nihar sheth. A1 has voluntarily

handed over his mobile phone and laptop without handing over the

login credentials. LW.14/ also examined Matlida Charles, H.R.

Allscripts (India) LLP, Pune on 04.09.2021.

50. During the course of investigation, examined Mr. Nihar Seth

on 04.09.2021 about the business transaction between

M/s.Mahati and Allscripts India LLLP and his involvement/role

along with his Colleague Mr.Jaydeep Wakankar/ accused No.1.

According to him, in 2019 they started Sahyadri Hospital project to

sell Health Grid Product, got approvals to work on this, from his

management David Chambers (G.M., Asia pacific), then he has

taken approval from legal teams in USA and India and contacted

his technical team and they suggested to contact M/s.Mahathi

Software Pvt. Ltd., then he informed through mail on 26.02.2019 to

Mr.Jaydeep Mahdukar Wakankar, Vice President, Finance,

Alslcripts India LLP and Matilda Charles, VP, HR, Business

Partners, Operations and Admin Allscripts (India) LLP. In further

course of investigation, the investigating officer also accessed the

laptop of Mr.Nihar Sheth; however, most of the data was wiped out

by the accused company. The petitioner/A1 deleted/tampered

with the evidence to hide his involvement with the help of A2 and

A3, on the advice of A8.

51. Further averred that Jaydeep Madhukar Wakankar

Petitioner/A1/deleted/tampered with the evidence to hide his

involvement with the help of A2 and A3 and on the advice of A8,

during the examination of Mr.NiharSheth, the Inspector of Police,

Cyber Crime Police Station found one email dated 02.09.2021

addressed from Ms.Catherine Spector

([email protected]) to Mr.NiharSheth wherein she

has stated that "not stay at your own residence but rather try to

stay with a friend or relative for the moment to avoid the police

coming to you and please don't disclose your location, they also

suggest you to turn off your primary cell phone and not 'use' it but

rather 'find' an alternative phone to use..."

52. In further course of investigation, clearly shows that

Allscripts India LLP is the alter ego (alternate personality) of the

Allscripts Healthcare LLC., and providing software development

services for Allscripts Healthcare LLC and A1, A2, A7 and A8 are

co-conspirators along with the officials of the Allscripts foreign

entities A3 to A6 and breached privacy of the complainant,

removed/copied the confidential data of M/s.Mahathi Sfotware Pvt.

Ltd., Viosakhaptnam and also A3 to A6 disabled the administrative

access of the complainant users to its own Azure Tenant with the

advice of A8 in committing the crime and in tampering with

evidence by deleting it to hide their criminal wrongdoings.

53. Based on the investigation, it clearly discloses that all the

marginally noted accused conspired together to tamper and steal

the user interface source code, confidential data and intellectual

property solely owned by the complainant company, without their

written consent and explicit authorization and in contravention to

section 43 of the Information Technology Act, by abruptly with

malafide intention, without renewing the SOW dated 18.05.2018

and thereby terminating the SOW on 14.05.2021 i.e., three days

prior to that of term of the agreement in conspiracy by blocking the

global admin privileges of the officials of the complainant's

company in the Azure Tenant (Microsoft 365). After completion

of investigation, on 20.09.2021 the investigating officer filed charge

sheet before the Court of Chief Metropolitan Magistrate,

Visakhapatnam against 8 accused for the offences punishable

under Sections 43, 65, 66, 65-B, 66-C and 66-D of Information

Technology Act, 2000 and sections 204 and 120-B of IPC and the

same was taken on file and numbered as C.C.No.3515 of 2021.

54. Replying to the above said contentions, Sri Naga Mutthu,

learned senior counsel appearing for the 3rd respondent relied on

the judgment in Lalitha Kumari Vs. Govt. Of Uttar Pradesh2

wherein the Hon'ble Apex Court held that -

"Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR."

2014(2) SCC 1

55. Sri Dusyanth Reddy, learned Public Prosecutor appearing on

behalf of the State submitted that based on the averments made in

the counter, it clearly discloses that the petitioners have involved

in the crime, which attracts Section 43, 65, 66, 65-B, 66-C and 66-

D of Information Technology Act, 2000 and also attracts sections

204 and 120-B of IPC .

56. He further contended that Section 319 of Cr.P.C. allows the

court, in a case before it, at any stage, to proceed against any

person, other than the accused, appears to have committed an

offence. Hence, the contention of the senior counsel appearing for

the petitioners would not attract in the instant case. During the

course of investigation, as per Section 319 of Cr.P.C. and 173 (8) of

Cr.P.C., the investigation agency can implead the other accused, by

filing supplementary charge sheet.

57. To support his contentions, he has relied on the judgments

following :-

a) Sharat Babu Digumarti vs Govt Of (NCT of Delhi), 3

wherein in it is held that -

"32. Section 81 of the IT Act also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative

2017 2 SCC 18

intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply."

b) Radheshyam Kejriwal vs State Of West Bengal & Anr4-

wherein in it is held that -

"38. The ratio which can be culled out from these decisions can broadly be stated as follows:

(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.

39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."

58. As per the above judgments, it clarifies that even when the

adjudication proceedings are pending, criminal prosecution can be

launched simultaneously, as contended by the petitioners that the

litigation is pending before the United States District Court of

Delaware is not a bar to initiate the criminal proceedings for the

(2011) 3 SCC 581

offences committed by A1 to A8 and both the proceedings can be

conducted simultaneously.

59. Further submitted that in view of Section 173 (8) of Cr.P.C.

and Section 319 Cr.P.C., there is no bar for the investigation officer

or for the concerned court, to add accused/ or file any

supplementary charge sheet based on the further investigation.

Therefore, in view of the said provisions and based on the factual

aspects of the present case, there is no ground warranting the

interference of this Court under Section 482 of Cr.P.C., hence

requested for dismissal.

60. On perusal of the pleadings as well as the submissions of the

learned senior counsel, though there is force in the contentions

made by the learned senior counsel Sri Sidharth Luthra, that in

the present case the respondents, without making the Company as

an accused, they cannot proceed against the petitioners, in view of

the ratio decided by the Hon'ble Apex Court in Aneeta Hada vs.

Godfather Travels & Tours pvt. ltd.5

61. Replying to the said contentions, learned senior counsel, Sri

Nagamuthhu, has strongly demonstrated the distinction between

the private complaint and the police complaint. In Aneeta Hada's

case, though the Apex Court has considered and applied Section

85 of the Information Technology Act, 2000 with that of Section

141 of Negotiable Instruments Act [N.I. Act], but it has discussed

only about the private complaint under Section 141 of N. I. Act,

which requires mandatory requirement of issuing notice, the Court

has said that when they want to proceed against the Directors, the

Company needs to be made as co-accused. But in the instant

2012 5 SCC 661

case, it is a police report, based on the allegations made against

the accused, the investigating officer investigated the crime and

filed report under section 173 of Cr.P.C., terms as Report of police

officer on completion of investigation. For the benefit, relevant

provisions of said Section are extracted as follows:-

173. Report of police officer on completion of investigation:-

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, weather with or without sureties;

(g) whether he has been forwarded in custody under section 170.

(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

.....

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section.

62. A plain reading of the above section of law, clause (8) of

section 173 Cr.P.C. gives power to the authorities further

investigation, of an offence, after a report under sub-clause (2), has

been forwarded to the Magistrate. Suppose if the investigation

officer gets any further information, or evidence or oral or

documentary he can file a further report.

63. Section 319 of Cr.P.C. deals with Power to proceed against

other persons appearing to be guilty of offence. For better

appreciation, section 319 Cr.P.C. extracted hereunder:

319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

64. Thus, Section 319 Cr.P.C empowers the Magistrate even at

the stage of inquiry or at the stage of trial, of an offence, it appears

from the evidence that any person not being the accused has

committed the offence, could be tried together.

65. In view of the above two provisions of law, it is clear that

there is a distinction between the private complaint and police

report.

66. Considering the above submissions and based on the

observations made by the Apex Court in Hardeep Singh Vs. State

of Punjab and also it clarifies that the even if the Company has not

made as a party only prosecution launched against the directors,

under Section 319 of Cr.P.C. they can be added or summoned.

Hence, there is no impediment that for not adding the Company as

a co-accused the directors cannot be added, at any stage if

required, the company can be added as a co-accused provided

under Section 173 (8) of Cr.P.C.

67. Considering the observations of the Apex Court in the above

referred judgments and also observations of the court in Sunil

Bharti Mittal vs CBI6 this Court feels that there are no grounds to

interfere under Section 482 of Cr.P.C. to quash the proceedings

only on the ground that the Company is not made a party -

co-accused.

68. But as contended by the learned senior counsel Sri Sidharth

Luthra that there are no specific overacts allegations made against

the petitioners in the complaint, except stating that the petitioners

are using the same e-mail portal and even the allegations made in

the charge sheet contains no specific overt acts, hence it is vague

in nature, however, the person who has been maliciously charged

can file a discharge petition before the court, if the allegations

which have been made against him are false, the Code of Criminal

Procedure provides the provisions for filing a discharge application,

2015 SCC 609

if the evidence given before the Court is not sufficient to satisfy the

offence and in the absence of any prima facie case against him, he

is entitled to be discharged.

69. Considering the above submissions as well as the

observations made by the Hon'ble Apex Court in various

judgements referred above, both the criminal petitions are

dismissed and the petitioners are given liberty to file discharge

application under Section 227 of Cr.P.C., before the trial court. If

such application is filed by the petitioners, the trial court shall

dispose of it as expeditiously as possible within one month, without

influencing the observations made by this court in the present

petitions. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

______________________ JUSTICE D. RAMESH

Date: 13. 07.2022 Pnr