Telangana High Court
Exxsova Solutions India Pvt. ... vs State Of Telangana, Rep. By P.P., ... on 28 September, 2022
Bench: K.Surender
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
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
(2019) 2 Supreme Court Cases 401
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
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.
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
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.11654 of 2014
Date: 28.09.2022.
kvs
