Dismissed

Jr Gangwani and Anr. v. State of Haryana and Ors.

Punjab & Haryana HC15 Oct 2012CRM-M/16034/2012

Case brief

AI extract

What is this about?

Single judge of Punjab and Haryana High Court dismissed a petition under Section 482 CrPC seeking quashing of an FIR and summoning order against petitioners for alleged offences under Section 66A of the IT Act. The court held that the police report traceable to the petitioner's IP address prima facie established facts supporting the charge of deception.

What did the court decide?

Petition for quashing of complaint No.170/2011 and summoning order dated 26.5.2011 dismissed.

Jr Gangwani and Anr. Vs State of Haryana… — Criminal Trial and Appeal | Punjab & Haryana HC (2012)

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Crl. Misc. No.M- 16034 of 2012

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Misc. No. M-16034 of 2012 (O&M) Date of Decision : October 15^th , 2012

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JR Gangwani and another

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.... Petitioners

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Versus

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State of Haryana and others

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.... Respondents

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CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK

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1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest?

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Present Mr. Akshay Bhan, Advocate, for the petitioner.

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Mr. Sagar Deswal, AAG, Haryana, for the State.

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Mr. J.S.Bedi, Advocate, for respondent No.4.

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VIJENDER SINGH MALIK, J.

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J.R.Gangwani and Kumar Gangwani, the petitioners by way of this petition brought under the provisions of section 482 Cr.P.C. seek quashing of complaint No.170/2011 dated 14.3.2011 (Annexure P7) pending in the court of Judicial Magistrate Ist Class, Gurgaon for an offence punishable under section 66A of the Information Technology Act, 2000 (for short, “the Act”) and the summoning order dated 26.5.2011 (Annexure P10) passed therein.

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M/s Avon Cranes Private Limited (for short “the Company”), a

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Crl. Misc. No.M- 16034 of 2012

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company incoporated under the Companies Act, 1956 has C.S.Bhojwani, J.R. Gangwani and Kuldeep Gangwani as its share holders. On account of some dispute between the share holders, the Company Law Board (for short, “the Board”) before whom the dispute was brought, advised the share holders to explore the possibility of selling the company as a whole and to share the sale proceeds in accordance with their shareholdings. Vide Annexure P2, the Board noticed that the share holders/directors of the Company and M/s Avon Polyplast had agreed that within 10 days, the draft advertisement for sale of both the companies would be furnished by the share holders and the companies will place advertisement in leading news papers for sale within a month. It was also agreed that the advertisement shall be issued both in the names of the companies and their shareholding groups. Annexure P3 is the advertisement published in the news paper.

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Learned counsel for the petitioners has contended that the advertisements were to be published with the name of the company and though, it was agreed before the Board that name of the shareholding groups would also be given, yet vide Annexure R/4-1, it was agreed by the three share holders not to let their names be published in the said advertisement. According to him, the allegation against the petitioners is that petitioner No.2, under the assumed e-mail address, started sending e-mails to the customers of the company with a view to malign the image of the Company. According to him, some of the companies re-directed the e-mails to the complainant and the complainant questioned the sender of the e-mails as to what was the authority with

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Crl. Misc. No.M- 16034 of 2012

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him to send the said e-mails. Some other questions were also posed to him. According to him, Section 66A (c) of the Act, which is claimed to have been attracted by the said acts of petitioner No.2, allegedly done in conspiracy with petitioner No.1, does not stand attracted to the facts of this case. According to him, the company or the complainants are neither the addressees nor recipients of the electronic mail message as is required to be there in order to maintain a complaint under this provision.

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Learned counsel for the petitioner has further submitted that although, there is no evidence with the complainants to prove that the e- mails were sent by petitioner No.2, even if it is assumed to be there, still the provisions of section 66A(c) of the Act do not stand attracted to the facts of this case and, therefore, the complaint is an abuse of the process of law and is liable to be quashed.

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Learned counsel for respondent No. 4 has submitted, on the other hand, that the e-mails have been sent without any authorization and that too under assumed e-mail I.D. According to him, the son of petitioner No.1, J.R. Gangwani and his wife have set up a company in competition of the company and they have sent the e-mails to deceive the customers of the Company. According to him, even the response received from the addresses of the e-mails was also not attended to and all these circumstances clearly show that the offence under section 66A (c) of the Act is attracted.

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Learned counsel for respondent No.4, the complainant drew attention of this court to Annexure P9, a report, made by the police under

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Crl. Misc. No.M- 16034 of 2012

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section 202 Cr.P.C., sought by learned Judicial Magistrate Ist Class, Gurgaon in the complaint where it has been found that the e-mails under the assumed names of [email protected] , [email protected] , [email protected] have originated from the I.P. Address of the computer of petitioner No. 2 from Banglore. He has submitted that the grievance of the complainant/respondent No. 4 is made clear in para No. 6 of the complaint (Annexure P7) and those allegations clearly make out a case under section 66A (c)of the Act.

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The question, as to whether the e-mails in question have originated from the computer of Kumar Gangawani, petitioner No.2 is a question of fact and at this stage, there is no material before this court to say that they have not been sent by petitioner No.2. Kumar Gangawani. He is not a share holder of the company. The three share holders of the company, on the advice of the Board, thought to resolve their dispute by putting the company to sale and there were advertisements for sale of company in prestigious news paper, the Economic Times. Kumar Gangwani who was sending e-mails to the customers of M/s Avon Cranes Private Limited, respondent no.4, cannot be believed to be sending them without the connivance or conspiracy of petitioner no.1. So, prima facie it will be said that the e-mails are sent by petitioner No.2 in conspiracy with petitioner No.1.

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As investigated by the police under section 202 Cr. P.C., the e- mail address of the e-mail was traced out to the IP address of the computer installed in the house of Kumar Gangwani, petitioner No.2 at

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Crl. Misc. No.M- 16034 of 2012

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Banglore. In the face of these findings of the police in its report made under section 202 IPC, it can hardly be said at this stage, that the petitioners have no concern with these e-mails.

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Section 66-A(c) has the following ingredients :-

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(1). a person should send any electronic mail or electronic mail message,

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(2). he should send the same by means of a computer resource or a communication device and

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(3). the same should be for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages.

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The petitioners are sending these messages to the purchasers of cranes from the company and those purchasers cannot be considered to be the possible buyers of the company. Sending of such e-mails, therefore, is not promoting the sale of the company which is the purpose of the advertisement given in the Economic Times. Such advertisements are, therefore, for the purpose of causing annoyance or inconvenience to the company or to deceive or mislead the addressee about the origin of such messages. These facts, therefore, clearly bring the acts of the petitioners within the purview of section 66A(c) of the Act.

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In these circumstances, this court finds no ground to believe that the complaint is abuse of the process of the court and hence, finds no reason to quash complaint No.170/2011 dated 14.3.2011 (Annexure P7) pending in the court of Judicial Magistrate Ist Class, Gurgaon for an offence punishable under section 66A of the Act and the summoning

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Crl. Misc. No.M- 16034 of 2012

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order dated 26.5.2011 (Annexure P10) passed therein. The petition is, consequently, dismissed.

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(VIJENDER SINGH MALIK) JUDGE

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October 15^th , 2012 som

Jr Gangwani and Anr. v. State of Haryana and Ors.

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Jr Gangwani and Anr. v. State of Haryana and Ors.

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