Safiya Malik

Calcutta High Court has quashed the summoning order issued against Microsoft Global Services Centre (India) Pvt. Ltd. and its official, directing the trial court to conduct a fresh inquiry as per Section 202 of the Code of Criminal Procedure (Cr.P.C.). The judgment, delivered by Justice Ajoy Kumar Mukherjee, observed procedural lapses in issuing the process and mandated a reconsideration of the case in compliance with legal requirements.

The complainant, identified as opposite party no. 2 in the proceedings, alleged that on August 5, 2019, they purchased a software product, "Microsoft Office Home & Business, 2019," from an entity named Datacorp Software LLP via Amazon India. The complainant stated that the product was delivered with a product key for installation, accompanied by a forwarding letter from the seller. However, during installation, errors occurred, preventing successful activation.

The complainant initially contacted the seller and other accused parties for assistance but received no resolution. Following this, they sought help from Microsoft’s Bangalore office, where alternative product keys were provided on August 21, 2019, and August 23, 2019. Despite these attempts, the installation failed, and Microsoft ultimately informed the complainant that the product key was not genuine, having been sold previously to another customer. The complainant contended that they were deceived, alleging that the accused conspired to provide fraudulent software, leading to financial and operational loss.

The complainant also stated multiple email correspondences and telephone conversations with the accused parties, asserting that they failed to provide a legitimate replacement or refund. On March 31, 2021, Microsoft officially communicated that the product key was invalid and had been misused in prior sales, reinforcing the claim that a pirated version had been sold. Subsequently, the complainant initiated legal proceedings, accusing the parties of fraud, conspiracy, and wrongful business practices.

Representing the petitioners, Mr. Ayan Bhattacharya argued that Microsoft’s role was limited to verifying the authenticity of the product and providing technical assistance to resolve the issue. The petitioners contended that:

1. No Involvement in Sale: Microsoft Global Services Centre (India) Pvt. Ltd. does not engage in direct sales of Microsoft Office Home & Business, 2019. The software in question was purchased from Datacorp Software LLP via Amazon, making Microsoft an unrelated third party.

2. Lack of Allegations Against Petitioner No. 2: The complaint did not specify any wrongdoing by petitioner no. 2 apart from their association with Microsoft.

3. Absence of Vicarious Liability: No material evidence suggested that Microsoft was responsible for selling or distributing pirated software.

4. Non-Compliance with Section 202 Cr.P.C.: The petitioners stated that since they resided outside the court’s jurisdiction, an inquiry under Section 202 was mandatory before summoning them.

The petitioners relied on multiple Supreme Court precedents, including Medmeme, LLC & Ors. vs. Ihorse BPO Solutions Pvt. Ltd. (2018) 13 SCC 374, S.K. Alagh vs. State of U.P. (2008) 5 SCC 662, and Sunil Bharti Mittal vs. CBI (2015) 4 SCC 609, stating that an accused cannot be summoned without a thorough inquiry into their specific involvement in the alleged crime.

Mr. Tapas Dutta, appearing for the complainant, opposed the petition and argued that:

1. Availability of Alternative Remedies: The petitioners could have sought discharge under Section 245 of Cr.P.C. instead of invoking Section 482 for quashing the proceedings.

2. Simultaneous Civil and Criminal Proceedings: The complainant asserted that criminal liability could coexist with civil disputes when fraud or misrepresentation is alleged.

3. Sufficient Inquiry Conducted: The complainant contended that statements recorded under Section 200 Cr.P.C. constituted an adequate inquiry, justifying the issuance of summons.

The complainant cited Gian Singh vs. State of Punjab (2012) 10 SCC 303, Rakhi Mishra vs. State of Bihar (2017) 16 SCC 772, and Supriya Jain vs. State of Haryana (2023) 7 SCC 771, arguing that the magistrate had discretion in deciding whether a prima facie case was made out.

The court examined Section 202 Cr.P.C., which mandates an inquiry before summoning an accused who resides outside the magistrate’s jurisdiction. Referring to Vijay Dhanuka & Ors. vs. Najima Mamtaz & Ors. (2014) 14 SCC 638, the court stated:

"The words ‘shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction’ were inserted in Section 202 to prevent harassment of innocent individuals through false complaints. The inquiry or investigation before issuing a summons is thus mandatory."

Upon reviewing the summoning order dated January 24, 2022, the court found that the magistrate had issued it without conducting a proper inquiry. The order merely stated that allegations under Sections 420, 120B, and 34 IPC were established without discussing any substantive examination of facts.

Key issues identified by the court included:

1. No Inquiry into Microsoft’s Role: The magistrate did not examine whether Microsoft officials played a role in distributing pirated software.

2. Failure to Address Vicarious Liability: No analysis was conducted to determine whether the company could be held criminally liable for a third-party seller’s alleged misconduct.

3. Lack of Evidence of Conspiracy: The prosecution failed to establish a connection between Microsoft and the seller, yet the summons was issued without an investigation.

Given these deficiencies, the court determined that the summoning order was legally unsustainable and required reconsideration.

The court quashed the summoning order dated January 24, 2022, and directed the magistrate to conduct a fresh inquiry under Section 202 Cr.P.C. before proceeding further. The order stated:

"In view of the aforesaid discussion, without going into the factual aspect of the case, I remit the matter to the magistrate for passing fresh order, uninfluenced by the observations made herein. The court below will pass fresh order after complying with the procedure laid down in Section 202 Cr.P.C. in respect of the present two petitioners within two months from the date of receipt of the order."

Case Title: Microsoft Global Services Centre (India) Pvt. Ltd. & Anr. vs. The State of West Bengal & Anr.
Case Number: C.R.R. 2983 of 2022
Bench: Justice Ajoy Kumar Mukherjee

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