IN THE HIGH COURT OF DELHI AT NEW DELHI  

  
  
  
  W.P.(C) 160/2012
  
  
  
  VINOD KAUSHIK and ANR ..... Petitioners
  
  Through: Ms. Sapna Rani Padhy, Advocate.
  
  
  
  
versus
  
  
  
  MADHVIKA JOSHI and ORS. ..... Respondents
  
  Through: Mr. Ravinder Agarwal, Advocate for the respondent/UOI.
  
  
  
  CORAM:
  
   HON'BLE MR. JUSTICE VIPIN SANGHI
  
  
  
   O R D E R
  
   27.01.2012
  
  
  
  This petition has been filed under Article 226 of the Constitution
  of India to assail the order passed by Sh. Rajesh Aggarwal, the
  Adjudicating Officer under the Information Technology Act, 2000,
  Government of Maharashtra in Complaint No. 2/2010 preferred by the
  petitioners before the said officer. The reason for filing this petition
  before this Court is that the Cyber Appellate Tribunal, New Delhi, to
  which an appeal lies against the impugned order, is bereft of the
  Chairman, and the Tribunal is not in a position to function.
  Consequently, the jurisdiction of this Court has been invoked.
  
  The petitioners preferred the aforesaid complaint against, inter
  alia, Ms.Madhvika Joshi, Respondent No.1. Petitioner No. 2 was married to
  Ms. Madhvika Joshi, whereas petitioner No. 1 is the father-in-law of
  Ms.Madhvika Joshi. Ms. Madhvika Joshi accessed the e-mail accounts of
  both the petitioners and printed chat sessions and e-mails from these
  accounts, which she has used to pursue her case filed against the
  petitioners under Section 498A IPC. The learned Adjudicating Officer in
  a well-reasoned order has held that respondent No. 1 is technically
  guilty of breaching Section 43 of the Information Technology Act (IT
  Act). However, he observes that respondent No. 1 has utilized the
  information retrieved by her from the e-mail accounts of the petitioners
  only for the purpose of pursuing her case against the petitioners, and
  for no other purpose. She has not used the said information for any
  other purpose, such as to malign the petitioners or cause any loss to
  them, and the information retrieved by her has been given only to the
  police authorities or the Court. On this basis, the Adjudicating Officer
  has held that the petitioners are not entitled to claim any damages from
  the respondent No. 1. The Adjudicating Officer has proceeded to impose
  token fine of Rs.100/- upon respondent No. 1 under Section 66C of the
  Act.
  
  Section 43 of the IT Act, inter alia, provides that ?If any person
  without permission of the owner or any other person who is incharge of a
  
  computer, computer system or computer network, ?.. ?.. ?.. downloads, copies or extracts
any data, computer data base information from such
  computer, computer system or computer network including information or
  data held or stored in any removable storage medium;? such person shall
  be liable to pay damages by way of compensation to the person so
  affected.
  
  The claim for compensation would not arise merely on account of the
  breach of Section 43. The claim would have to be established like in
  Civil Court, by making requisite averments with regard to the damage
  suffered, and thereafter by leading evidence in support thereof, to show
  that one or the other prohibited activities enumerated in Section 43 of
  the IT Act have resulted in the sufferance of damages by the person
  concerned.
  
  In the present case, the petitioners evidently have not lead any
  evidence to show as to what damage they have suffered on account of the
  retrieval of their e-mails and chat sessions by respondent No. 1. These
  e-mails and chat sessions have been used by respondent No. 1 in her case
  lodged against the petitioners under Section 498A IPC. Admittedly, this
  information has not been made public by respondent No. 1 to malign the
  petitioners or to hurt their business or reputation. The information has
  been provided only to the police authorities or to the Court.
  
  The claim for damages and compensation made by the petitioners is
  worded in the following manner in their written final argument before the
  Adjudicating Officer:
  
  ?38. In this case, accused R-1, R-2 and R-3 had put the victims to huge
  financial losses to the tune of Rs. 50 lacs; (a) by dragging them into
  unwanted litigation by registering a false 498A Case (b) by keeping the
  Complainant?s son in eight days police custody by waving the copies of
  these illegally hacked, fabricated and created chat sessions (c) by
  delaying overseas business assignment of the complainant to Hong Kong
  (d) by blocking the client-site posting of the Complainant?s son Neeraj
  to USA by way of unauthorized seizure of passport through Police (e) by
  blocking various business opportunities of the Complainant by way of
  deleting business mails of the complainant regularly and repeatedly for
  more than 15 months (f) by damaging reputation in the society.
  
  
  
  As such Neeraj and the complainant are entitled for every relief
  including the discretionary benefits under the Law inforce and hence
  entitled for all the due relief/compensation legally under the IT Act
  2000 as prayed for with cost of the suit as detailed below:
  
  
  
  A. Rs. One Lac three thousand paid towards Court Fee/application money.
  
  B. Rs. 25,000/- towards expenses incurred on lodging and travelling to Pune
  
    and Mumbai for pursuing the case at Cyber Crime Cell Pune, before the Hon?ble
Adjucating Officer at Mantralaya Mumbai and attending hearing
  dates.
  
  C. Rs. 50,000/- towards litigation charges paid to the Counsel.
  
  D. Rs. 5000/- towards documentation expenses.
  
  
  
  39. Since the complaint is legally tenable and the complainant and
  Neeraj Kaushik are entitled for the relief as prayed for by imposing
  heavy exemplary penalty and cost on the Respondents alongwith rigorous
  imprisonment, so that any such economically well placed employees and the
  companies could not date to repeat such mal practices and offences which
  would act as a deterrent for one and for all in future.?
  
  
  
  The aforesaid claim has been rejected by the Adjudicating Officer
  and, in my view, rightly so. The right of the respondent to pursue legal
  remedies available to her, including under Section 498A IPC, cannot be
  questioned. The invocation of a right available to a person to ventilate
  his or her grievances, and to take action against perceived illegalities
  and criminalities does not give a cause of action to claim damages to
  those against whom action may be initiated because of such
  complaints/actions, unless it is eventually found that such
  complaints/actions was filed maliciously. The petitioners cannot have any
  grievance because the respondent No.1 has lead in evidence of the
  materials collected by her in support of her case by breaching Section 43
  of the I.T. Act. All the consequences flowing on account of registration
  of the case under Section 498A IPC against the petitioners are remote and
  indirect consequences. In any event, it is too premature to conclude
  that respondent No.1 is accountable for the so called damages.
  
  This being the position, I find no merit in this petition so far as
  the petitioners claim for damages has been rejected. In case it is held
  by the concerned Court that the proceedings under Section 498A have been
  maliciously instituted, it shall be open to the petitioners, at that
  stage, to take appropriate steps to claim damages against the respondent
  No. 1 for loses or damages directly arising from such conduct of
  respondent No.1.
  
  So far as the submission with regard to the levy of token fine of
  Rs.100/- under Section 66C is concerned, I find no merit in the same
  either. The submission of the petitioners in this respect is that the
  said fine cannot be imposed by the Adjudicating Officer, who functions
  like a Civil Court, whereas the fine could be imposed by a Criminal Court
  dealing with the offences made out under the Act. The fine has been
  imposed under Section 66C against the respondent No. 1. In case
  respondent No. 1 is aggrieved by the said token fine on the ground that
  the adjudicating authority did not have jurisdiction to levy the same
  under Section 66C, it shall be open to her to take appropriate action.
  
  Dismissed.
  
  
  
  
  
  
  
  VIPIN SANGHI, J
  
  JANUARY 27, 2012
  
  ?BSR?
  
  
  
  
  
  50-51