INDIA Law and Practice Contributed by: Pravin Anand and Rohil Bansal, Anand and Anand
Even in a criminal action involving trade secrets, the complaint should be concise, and should contain the basic facts leading to the dispute and not provisions of law, precedents, etc. Finally, the standard of proof in a civil case is prepon - derance of probability, while in a criminal case it is beyond reasonable doubt. In Amica Financial Technologies Pvt Ltd v Hip Bar Pvt Ltd and Others , the Madras High Court held that, for an applicant to ask for protection of its trade secrets, it must prima facie establish through some material that such information was communicated to the per - son against whom protection is sought. Moreover, the applicant will also have to prima facie establish that the information in question is confidential in nature. Further, the applicant must also show that the confidential infor - mation is under threat of being used without authorisa - tion by the respondent for wrongful gains. 5.6 Seizure Mechanisms Under Order 26, a Civil Court has the power to appoint commissioners to: • seize and take into custody incriminating evidence and material; • inspect/investigate; • examine accounts; and • conduct scientific investigation, etc. In a criminal case, summons to produce, searches and seizures, etc, are allowed as per Sections 94, 96 and 97 of the Bharatiya Nagarik Suraksha Sanhita, 2023. While applying for the above seizure orders against the accused/respondent at an ex parte stage, the court must be convinced of the following: • that there is high likelihood of the opposite side destroying/fudging evidence if notice is given; • that the evidence collected through such seizure is to be secured for adjudicating a dispute between the parties; and • that the subject matter of the dispute will be pre - served and not destroyed or tampered with.
The powers of a civil court in this regard have been contemplated in Orders 26 and 39 of the Code of Civil Procedure. 5.7 Obtaining Information and Evidence Evidence can be collected as follows. Under Order XI Rule 2 of the Code of Civil Proce - dure, 1908, a party can seek interrogatories. If certain important evidence or facts are not produced before the court, the party concerned is obligated to produce these. As previously stated, under Order 26, the court has the power to appoint commissioners to: • seize and take into custody incriminating evidence and material that may be found in their power and possession; • inspect/investigate; • examine accounts; and • conduct scientific investigation, etc. As per the Commercial Courts Act, 2015, both the claimants and the respondents must provide an undertaking that: • all documents in their power, possession, control or custody pertaining to the facts and circumstanc - es of the case have been placed on record; • they have not made any false statement or con - cealed any material fact, document or record; and • they have included all information that is relevant for the purposes of adjudication of the case. If a party gives a false undertaking, it would be com - mitting perjury and would invite penal consequences. 5.8 Maintaining Secrecy While Litigating Please refer to 3.1 Best Practices for Safeguarding Trade Secrets . 5.9 Defending Against Allegations of Misappropriation The relevant defences are provided in 9.1 Prosecution Process, Penalties and Defences .
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