TMI Blog2017 (8) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the trial court found that there was no answer from the CBI whether the software in question was unique and there was no other software in the market for the recovery of lost data from the logical cracked hard disk. Number of softwares are available in the market which negated the arguments of CBI that by supplying the mirror image of the documents, the complainant will lose its money and it will be in violation of the Copyright Act, 1957. In that case, the Court took undertaking from the appellant that he would not misuse the copy of cloned CD. We, thus, are of the opinion that in order to comply with the provision of Section 207 of the Code, the hard disks marked Q-2, 9 and 20 be supplied to the appellant subject to the following conditions : (a)Before supplying the said CDs, the contents thereof shall be recorded in the Court, in the presence of complainant as well as the appellant and both of them shall attest the veracity thereof by putting their signatures so that there is no dispute about these contents later thereby removing the possibility of tempering thereof by the appellant. (b)The appellant shall not make use of the source code contained in the said CDs or mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by the learned ACMM. 3. Learned counsel for the parties were unable to inform the Court whether the opinion of GEQD on the seized electronic hardware equipment has been received by the trial court. 4. In view of the facts as noticed hereinabove, it is directed that the learned ACMM will first and foremost if not done already, consider whether cognizance should be taken of the offence, if any, on the basis of the charge sheet filed. This will be done within ten days of the receipt by the learned ACMM of the certified copy of this order. 2. In the meantime, on June 28, 2006, the CBI had filed the charge sheet after completing the investigation. On May 27, 2009, the trial court took cognizance of offence under Section 381 of the Indian Penal Code, 1860, Section 66 of the Information Technology Act, 2000 and Sections 63 and 63B of the Copyright Act, 1957. Insofar as the application of the appellant for release of the seized property is concerned, the trial court passed the orders dated September 3, 2009 thereupon, directing the Investigating Officer to find out as to whether copies of the hard disk in question can be prepared with Unite Protect Software so that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... software was a DOS based software and used to work for File Allocation Table (FAT). Subsequently, the software was got upgraded to FAT and New Technology File System (NTFS). This software was developed by a team headed by one Manu Bhardwaj and others in the office premises of the complainant s company and all these persons were employed in the company in the capacity of Programmers. The source code of the software programme Quick Recovery for FAT NTFS was stored in the programming room that was networked for the purpose of convenience and was not password protected and easily accessible by the other employees in the office of the company. 6. The appellant was an employee of the company initially for a brief period of two months, i.e., in October and November, 2003. He rejoined the company in June, 2004 and worked till end of April, 2005. The appellant had his own website, which he started while working in the complainant s company. The appellant, with dishonest intention of selling data recovery software, made out with the stolen source code. The website developed by the appellant was registered with Direct Internet Service of Mumbai. The appellant, during the period of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant, is Section 238 of the Code. We would, therefore, like to reproduce these two provisions herein : 207. Supply to the accused of copy of police report and other documents. - In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following :- (i) the police report (ii) the first information report recorded under section 154; (iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173; (iv) the confessions and statements, if any, recorded under section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173; Provided that the Magistrate may, after perusing any such part of a statement as is referred in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same. It was pointed out that the CBI, in the second FIR against one accused Rupesh Kumar, has conceded to supply the mirror image/copies of the CDs, i.e. the questioned documents, and accepted the finding of the courts below wherein it has been held that there is no answer from the CBI whether the software is unique and there is no other software in the market for the recovery of lost data . 10. It is clear from the above that the CBI had seized some hard disks marked Q-2, 9 and 20 from the premises of the appellant which contained the source code of the data recovery software. Defence of the appellant is that this source code was exclusively prepared by him and was his property. On the other hand, case of the prosecution is that the recovered CDs are in fact same or similar to the software stolen in 2005. In a case like this, at the time of trial, the attempt on the part of the prosecution would be to show that the seized material, which contains the source code, is the property of the complainant. On the other hand, the appellant will try to demonstrate otherwise and his attempt would be to show that the source code contained in those CDs is different from the source c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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