INDIA Law and Practice Contributed by: Pravin Anand and Rohil Bansal, Anand and Anand
9. Criminal Offences 9.1 Prosecution Process, Penalties and Defences In the case of trade secrets theft, a complaint can be filed before either the concerned magistrate or police officer, for the following offences. • Theft – Section 303 (2) of the Bhartatiya Nyaya Sanhita, 2023, with imprisonment of either descrip - tion for a term that may extend to three years, or with a fine (or both). • Cheating – Section 318 (2) of the Bhartatiya Nyaya Sanhita, 2023, with imprisonment of either descrip - tion for a term that may extend to three years, or with a fine (or both). • If the misappropriation is in violation of a con - tractual agreement, as per Section 316 (2) of the Bhartatiya Nyaya Sanhita, 2023, one can claim criminal breach of trust, with imprisonment of either description for a term that may extend to three years, or with a fine (or both). • If computer resources were involved in the misap - propriation, this will also attract the provisions of the Information Technology Act, 2000: (a) Section 66B – punishment for dishonestly receiving stolen computer resources or com - munications devices, with imprisonment of either description for a term that may extend to three years, or with a fine that may extend to INR1 lakh (or both); (b) Section 66D – punishment for cheating by personation using computer resources, with imprisonment of either description for a term that may extend to three years, and liability to a fine that may extend to INR1 lakh; and (c) Section 72 – penalty for breach of confidential - ity and privacy, with imprisonment for a term that may extend to two years, or with a fine that may extend to INR1 lakh (or both). • Causing wrongful gain and wrongful loss. • Copyright infringement – Section 63 of the Copyright Act, 1957, with imprisonment for six months to three years, and with a fine of between INR50,000 and INR2,00,000.
The accused can adopt various defences as follows, which may be nearly the same in both civil and crimi - nal cases: • that the information was not confidential or propri - etary; • that the information was in the public domain; • absence of mens rea or criminal intent; and • absence of any fiduciary relationship demanding exercise of a duty of care. If aggrieved by lackadaisical police investigation, the claimant/complainant can approach the concerned magistrate seeking orders against the police under the provisions of Section 175 of the Bharatiya Nagarik Surak - sha Sanhita, 2023. There are dedicated police depart - ments for dealing with economic and cyber offences. In Bawa Masala Co v Bawa Masala Co Pvt Ltd , CS (OS) No 139 of 2002, the High Court of Delhi passed an order referring the parties to a panel of neutral evalua - tors. They were directed to go through the papers and consider each side’s position, and to render an evalu - ation of the case, thereby giving an unbiased under - standing on the case’s strengths and weaknesses. One can apply for pre-litigation mediation before the Arbitration and Mediation Centre of the Delhi High Court under Section 12 (A) of the Commercial Courts Act, 2015. Such proceedings are effective in cases with a high likelihood of settlement. Moreover, all dis - cussions in such proceedings are confidential and are conducted without prejudice. In a contractual agreement that has an arbitration clause, either party can seek interim orders under Section 9 and/or Section 17 of the Arbitration and Conciliation Act, 1996, in the event of a dispute. 10. ADR 10.1 Dispute Resolution Mechanisms
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