Respondent 31

THE LEGAL INSIDER IN COLLABORATION WITH I.E.C.
UNIVERSITY, SOL
NATIONAL VIRTUAL MOOT COURT COMPETITION, 2020
THE LEGAL INSIDER IN COLLABORATION WITH I.E.C. UNIVERSITY, SOL

Before
The Hon’ble High Court of Mandas
WINCROP EARTH MOVERS Ltd. V MR. PINK PANTHER

AND
WINCROP EARTH MOVERS Ltd. V JOHN KUMBLE
AND
JOHN KUMBLE V MR. PINK PANTHER
UPON SUBMISSION TO THE HON’BLE JUDGES OF THE HIGH COURT OF MANDAS
[MEMORIAL ON BEHALF OF THE RESPONDENTS]
1
TEAM CODE-31
TABLE OF CONTENTS
LIST OF ABBREVIATIONS……………………………………………………………………iii
INDEX OF AUTHORITIES …………………………..………………………………………...iv
TABLE OF CASES …………………………………………………………………………...v-vi
STATEMENT OF JURISDICTION……………………………………………………….......vii
SUMMARY OF FACTS …………………………………………………………………...viii-ix
STATEMENT OF ISSUES ………………………………………………………………….......x
SUMMARY OF ARGUMENT………………………………………………………….….xi-xii
ARGUMENTS ADVANCED ……………………………………………………………............1
[1.] MR. PINK PANTHER IS NOT LIABLE FOR THE LEAK OF CONFIDENTIAL
INFORMATION THAT HARMED THE COMPANY……………………………………….1
[1.1] Mere Presumption by the Company cannot be an Evidence………………………...…1
[1.2] Suspicion no matter however strong that cannot take place as evidence………………2
[1.2.1] Suspicions However Strong is Not Evidence………………………………….2
[1.3] Double Presumption of Innocence…………………………………………………. 2-3
[1.4] No Entrustment Not Liable………………………………………………………….3-5
[2.] JOHN KUMBLE IS NOT LIABLE FOR ACCESSING THE COMPANIES

DATABASE…………………………………………………………………………………5
[2.1] Suspicion However Strong cannot takes Place as Evidence………………………5-6
[2.2] There is No Motive of Mala Fide Intention………………………………………6-7
[2.3] Absence of Motive of Ill Will……………………………………………………..7-8

I
[2.4] Extra Judicial Confession ………………………………………………………….8
[2.5] Innocent Person Should be Punished……………………………………………….8-9
[3.] THE ACTIONS OF MR. PINK PANTHER ARE NOT CONCLUSIVE TO STATE
THAT IS WAS A DEFAMATORY ACT…………………………………………………9
[3.1] No Revision Lies Without Any Order of District Court…………………………10-11
[3.2] Extra Judicial Confession………………………………………………………….12
[3.3] Circumstantial Evidence is Not Conclusive Proof………………………………….13
[3.4] Admission is Not a Conclusive Proof………………………………………………13
[4.] WHETHER THE HIGH COURT HAS THE POWER TO TAKE UP ANY CASE
FROM A SUBORDINATE COURT UNDER ARTICLE 227 OF THE CONSTITUTION
OF INDIGO OR NOT…………………………………………………………………….14-15
[4.1] Under Article 227 High Court Has no Power for Finding of Facts or Trial……….15-16
[4.2] Under Article 227 High Court Cannot Substitute Findings of District Court……...16
[4.3] No Jurisdiction Unless There is Grave Error or Injustice Caused to a Party Under
Article 227…………………………………………………………………………………..17
[4.4] Where There is a Provision for Remedy of Revision Article 227 is Not Applicable…17
[4.5] Where there is a Specific Provision of Appeal no Revision Lies …………………..18
[4.6] Jurisdiction Under Article 227 Could not be Exercised “as the clock of an appeal in
disguise”……………………………..……………………………………………………..18-19
PRAYER…………………………………………………………………………………….…..20
II
LIST OF ABBREVIATIONS
¶ Paragraph
COVID-19 Coronavirus 2
DPIIT Department of Promotion of Industry and International Trade
WEML Wincrop Earth Movers Ltd.
FIR First Information Report
§ Section
IT security Information and Technology Security
PIL Public Interest Litigation
AIR All India Reporters
Anr. Another
Art. Article
Co. Company
Corp. Corporation
Ltd. Limited
IPC Indian Penal Code
SARS-Cov-2 Severe Acute Respiratory Syndrome Corona Virus 2
SCC Supreme Court Cases
SCR Supreme Court Reporter
III
INDEX OF AUTHORITIES
CONSTITUTIONS
THE CONSTITUTION OF INDIA, 1960
STATUTES
INDIAN EVIDENCE ACT, 1872
THE INDIAN PENAL CODE, 1862
CODE OF CRIMINAL PROCEDURE, 1974
THE INFORMATION AND TECHNOLOGY ACT, 2000
CODE OF CIVIL PROCEDURE, 1908
BOOKS
1. M.P. JAIN , INDIAN CONSTITUTION LAW (10THEDN., 2018)
2. V.N. SHUKLA, CONSTITUTION OF INDIA (11THEDN., 2018)
3. VAKUL SHARMA, INFORMATION TECHNOLOGY LAW AND PRACTICE (6 TH
EDN., 2017)
4. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8 TH
ED. 2007).
5. R.K. BANGIA, LAW OF TORT (25THEDN., 2020)
6. RATANLAL & DHIRAJLAL, LAW OF TORT (26THEDN., 2018)
7. AVTAR SINGH, LAW OF TORT (4THEDN., 2020)
WEBSITES
1. http://www.scconline.com
2. http://www.manupatrafast.com
3. http://www.judis.nic.in
MISCELLANEOUS
BRYAN A. GARNER, BLACK’S LAW DICTIONARY (10THedn, 2014)
LIST OF CASES Page No.
IV
1. Asar mohammad v state of uttar Pradesh (2019) 12 scc 253 ………………………… 8

2. Achal Mishra v rama shanker (2005) 5 scc 531 ……………………………………… 18
3. Chandrappa & ors. V state of Karnataka, (2007) 4 scc 415 ……………………………. 3
4. Celina Mishra vs ulhas mahabaleshwar kholkar , (2010)1 scc 217 …………………… 18
5. Google indian private limited v visakha industries , (2020) 4 scc 162 ………………… 11
6. K R purushothaman v state of kerala , (2006)1 scc (cri) 686 ………………………… 4
7. Kanakaranjan @ kanakan v state of kerala , (2017) 13 scc 597 ………………………. 7
8. Kavita v state of T.N. , (1998) 6 scc 108 …………………………………………….. 12
9. Koyilerian janaki v rent controller (munsiff), cannanore,(2009 ) 9 scc 406 …………. 17
10. Mukund sharma v state of bihar (2019) 5 scc 469 ……………………………………. 2
11. Nevada properties private limited v state of Maharashtra, (2019) 0 AIR (sc) 4554 ….. 2
12. Nagubai Ammal v B. Snama Rao, (1956) 0 AIR (SC) 593……………………………13
13. Nimai Kar v Bishnupada Saha, (2011) 0 AIR (Gau)1………………………………..17
14. New delhi v Navjot Sandhu @ Afshan Guru, JT 2003 (4) SC
605…………………………………………………………………………………….19
15. Pancho v State of Haryana, (2011) 10 SCC 165……………………………………..12
16. Rajkumar Singh v State of Rajasthan, (2013) 5 SCC 722……………………………2
17. Rajkumar Singh v State of Rajasthan, (2013) 5 SCC 722………………………………6
18. Reena Hazarika v State of Assam, (2019) 3 SCC 289…………………………………9
19. Rajendra Pralhadrao Wasnik v State of Maharashtra, (2019) 12 SCC 460……………13
20. Rena Drego v Lalchand Soni ,(1998) 3 SCC 341……………………………………..15
21. Raj Kumar Bhatia v Subhash Chander Bhatia, (2018) 2 SCC 87……………………..16
22. Sundeplal Sjt Boriak v State of Assam, (2010) 2 GLR 771………………………….2
23. Sumanth Ramamoorthy v State, (2019) 2 LW (Cri) 409…………………………….3
24. Superintending Engineer, Mettur Thermal Power Station, Mettur v Veerappan & Others,
(2011) 2 CIJ 468………………………………………………………………………..4
25. State of Punjab: Sardar Prakash Singh Badal v V. K. Khanna (2001) 2 SCC 330…….7
26. State of A.P. v Goverdhanlal Pitti, (2003) 4 SCC 739………………………………..8
27. Shatrughna Prasad Sinha v Rajbhau Surajmal Rathi, (1996) 6 SCC 263………….10
28. S. J. Ebenezer v Velayudhan, (1998) 1 SCC 633………………………………….16
V
29. Trimukh Maroti Kirkan v State of Maharashtra, (2006) 10 SCC 681……………5
30. Union of India v Ibrahim Uddin, (2012) 8 SCC 148………………………………11
31. Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v Tuticorin Educational Society,
(2019) 9 SCC 538…………………………………………………………………..18
VI
STATEMENT OF JURISDICTION
CIVIL APPEAL NO.----------------------OF 2020
The Hon‟ble high court of Mandas has Jurisdiction to hear the appeal and adjudicate over the
matter under article 227 of the Constitution of Indigo, 1950
AND
The Petitioner’s case has been clubbed under Article 227 of the Constitution of Indigo in the
High Court of Mandas. But except the appeal case (WEML v Mr. Pink Panther), the case of
WEML v John Kumble and John Kumble v Mr Pink Panther is the jurisdiction of the District
Civil Court under Section 15 of the Code of Civil Procedure as well as the criminal court under
Chapter III of the Code of Criminal Procedure respectively which reads as, “Power of
Courts”. Section 15 of the Code of Civil Procedure, 1908, reads as, “Court in which suits to be
instituted- Every suit shall be instituted in the Court of the lowest grade competent to try it.”
VII
STATEMENT OF FACTS
The Republic of Indigo is a developing nation that is currently under lockdown due to the
pandemic COVID-19.
Wincrop Earth Movers Ltd. (WEML) is a heavy manufacturing industry. The company recently
collaborated with Mr. Wuhan Smith, to make self-driven trucks and cranes for industrial use.
The innovative intelligence team which led the whole concept and design for these advanced
engines and machines was led by Mr. Pink Panther.
Due to the surge in infected cases of COVID-19, the whole nation was put under lockdown by
the Prime Minister of Indigo from 1st of February 2020 until further notice indefinitely. Because
of the lockdown many companies including WEML also faced losses and subsequently started
laying off its employees. John Kumble was one such employee in Mr. Pink Panther’s team who
was an IT professional living in Sonar City. He could not work due to suffering from COVID-19
and was soon served with a notice of one month to resign from WEML on 15 th of February 2020.
When John tried to contact his superior to make them understand that his inability to work while
being infected with Covid-19 from home was not his fault, they ignored his phone calls for three
consecutive days.
John later found himself trying to access the private database, he got past the security systems
first as he could easily break it down, where he found the malware that was accessing all the data
and redirecting it to another server. On 19th of March 2020, John finally got in contact with his
superior Mr. Panther and informed him about the malware that he noticed on their private server.
Mr. Panther informed the IT Security Team of the issue that was informed to him and asked that
they fix the same. Due to this act of righteousness, on Mr. Panther’s recommendation, John was
offered his job back on 25th of March 2020.
Mr. Ghosh told his office to investigate the matter. Meanwhile, Mr. Panther joined Mechons Inc.
company on the 1st May 2020, as soon as he found an opening there. They offered him a pay rise
and made him the executive officer in the Technologies department.
VIII
On the 10th of May, 2020 when Mr. Sameer Ghosla received the report from the message action
apartment he found out that the client list had been leaked from their private and secure database
due to malware that allowed an outsider to steal their data easily. Mr. Ghosla questioned the
security department who told them about the breach in the system and came to know that Mr.
Panther was the last person who knew about this and he had recently joined Mechons Inc. which
was a supporter to WEML’s rival Barry's Engines. Mr. Ghosla on behalf of the company filed a
case in District Court against Mr. Panther on grounds of sharing sensitive and confidential
information and insider trading against him and said that he would drag him to court for this.
Mr. Panther in the agitation of the case filed against him made a remark in the public media.
On 30st June 2020, the Hon’ble Court concluded that only the knowledge of the situation of the
breach on the company’s system does not amount to Mr. Panther’s intent of leaking confidential
information that would harm the company and dismissed the case stating that in the matter of
fact, no conclusive evidence exists and the petition did not hold any reasonable ground to make
Mr. Panther liable.
In the aftermath of the media report, on the 5 th of July 2020, the company let go of John because
he was allegedly responsible for accessing the company's private system. Subsequently, two
weeks later the company filed a case against John for breaching their private database system.
John Kumble was unable to get a job for months due to the COVID-19 situation. It was also due
to the negative remark by Mr. Panther that he could not land a job anywhere he tried. On 20th of
August, John filed a case against Mr. Panther for publicly defaming him and depriving him of his
livelihood. On 10th of September 2020, WEML appealed to Hon’ble Mandas High Court against
the decision of the Court of Sessions. Considering the issue of a dispute being around the breach
in WEML, the High Court of Mandas issued a notice under Article 227 of the Constitution of
Indigo to the Court of Sessions and took up the matters for adjudication. The High Court of
Mandas has clubbed the Appeal and the petition of defamation and infiltration of data and fixed
31st of October 2020 as the date of hearing.
IX
STATEMENT OF ISSUES
[1].
WHETHER MR. PANTHER IS LIABLE FOR LEAKING CONFIDENTIAL
INFORMATION THAT HARMED THE COMPANY?
[2].
IS JOHN LIABLE FOR ACCESSING THE COMPANY’S DATABASE OR NOT?
[3].
WHETHER THE ACTIONS OF MR. PANTHER ARE CONCLUSIVE TO STATE THAT
IT WAS A DEFAMATORY ACT OR NOT?
[4].
WHETHER THE HIGH COURT HAS THE POWER TO TAKE UP ANY CASE FROM
A SUBORDINATE COURT UNDER ARTICLE 227 OF THE CONSTITUTION OF
INDIGO OR NOT?
X
SUMMARY OF ARGUMENTS
At the outset, it is submitted that the Constitution of India is analogous to the Constitution of the
Republic of Indigo.
[1]. WHETHER MR. PINK PANTHER IS LIABLE FOR LEAKING CONFIDENTIAL

INFORMATION THAT HARMED THE COMPANY?
It is humbly submitted before the Hon’ble Court that Mr. Pink Panther is not liable for leaking
the confidential information. Mere presumption however strong cannot take place of evidence.
The allegation against Mr. Pink Panther that he leaked the confidential information is a mere
presumption [1.1]. It is also an established law that suspicion, however strong, cannot take place
as evidence [1.2].
[2]. IS JOHN LIABLE FOR ACCESSING THE COMPANY’S DATABASE OR NOT?

It is humbly submitted before the Hon’ble Court that Mr. John Kumble is not liable for accessing
the Company’s Database as John has broken the security of database but his intention was not
mala fide which can be safely construed from his subsequent conduct that he immediately tried
to communicate to his superior but it was his misfortune that his contact was not attended by the
superior but ultimately he could connect and inform to his senior Mr. Pink Panther along with it
John is not liable for accessing the company’s database, because except suspicion there is no
chain of circumstances to hold that it is only John who has committed the crime. The established
law is that suspicion however, that cannot take place of evidence.
[3]. WHETHER THE ACTIONS OF MR. PANTHER ARE CONCLUSIVE TO STATE

THAT IT WAS A DEFAMATORY ACT OR NOT?
It is humbly submitted before the Hon’ble Court that is no other evidence except the statement
made by Mr. Panther in the public media that he named John Kumble who the employee of the
company is informing him about the malware. The respondent has not used any derogatory word
against John. It is true that the statement is made Mr. Panther. But there is no word either spoken
or by visible representation published in the public media which makes neither any imputation
XI
against Mr. John nor such statement has any intention to harm or reasons to believe that he made
the same to harm Mr. John. Therefore, the statement made by Mr. Panther is nowhere had made
any harm to the reputation of John Kumble. Therefore, the statement made by Mr. Panther is
nowhere had made any harm to the reputation of John Kumble. Presumption goes in favour of
Mr. Panther is that since except statement, there is no any other evidence and that only can be
taken as circumstantial evidence is not proved where doubt is created as to the making of the
statement.
[4]. WHETHER THE HIGH COURT HAS THE POWER TO TAKE UP ANY CASE
OF INDIGO OR NOT?
It is humbly submitted before the Hon’ble Court that it comes that the power of Article 227 of
the Constitution of Indigo is applied to take up matters of adjudication of case against John for
breaching company’s database system as well as Panther publicly defaming to John including the
appeal where the company lost the case against Mr. Panther for leaking confidential information
at district court. No doubt, the High Court has the power to take up appeal but, trial of the other
two cases is a subject matter of district court. Sitting in a High Court, Hon’ble Court cannot
proceed to hear case as an original jurisdiction lies in the lower court. The High Court has only
the power to take up case of lower courts where any order is passed by the lower court and that is
challenged by revision under Section 115 of Code of Civil Procedure or where the order is not
revisional order, than invoking the provision of Article 227 of the constitution of Indigo.
XII
ARGUMENTS ADVANCED
[1.] MR. PINK PANTHER IS NOT LIABLE FOR THE LEAK OF CONFIDENTIAL
INFORMATION THAT HARMED THE COMPANY.
It is humbly submitted before the Hon’ble Court that Mr. Pink Panther is not liable for the leak
of confidential information that harmed the company. The fact is that Mr. Panther was entrusted
with engineering works of making self-driven trucks crane for industrial use in collaboration
with Mr. Wuhan Smith wherein Mr. Panther was the award winner of artificial intelligence and
machine learning based project of Pink Intelligence machine which beat IBM’s Deep Blue. So
Mr. Panther was never entrusted with any data process work in which in his team he was the
head and John Kumble who worked as an IT professional.
[1.1] MERE PRESUMPTION BY THE COMPANY CANNOT BE AN EVIDENCE
It is humbly submitted before the Hon’ble Court that Mr. Panther was never entrusted with any
data process work in which in his team he was the head and John Kumble worked as an IT
professional. It is also a fact that Mr. Panther was superior to John who is the main person of
detecting the leaking of data of the company. Nowhere John pointed out that Mr. Pink Panther
has avoided the information. John only named that he tried to contact his superior. The only
admission of Mr. Panther is that he made a statement in public media that Mr. John Kumble
informed him about the malware. So, the allegation of John is not imputed on Mr. Pink Panther.
It is a contradictory allegation of the company that once the company alleged that the ‘senior
persons’ dismissed John’s e-mails as a prank and other way alleged that as per own statement of
Mr. Pink Panther in public media he was informed by Mr. John Kumble. Therefore, except
presumption there is no evidence. Mere presumption by the Company cannot be evidence against
Mr. Pink Panther that he leaked the confidential information
[1.2] SUSPICION NO MATTER HOWEVER STRONG THAT CANNOT TAKE PLACE

AS EVIDENCE
It is humbly submitted before the Hon’ble Court that it is an established law that suspicion no
matter how strong cannot take place as evidence.
1
Following are the cases that have been relied upon:
[1.2.1] Suspicions However Strong is Not Evidence
In the decided case in between Sundeplal Sjt Boriak v State of Assam1the Hon’ble Judge of
Guwahati High Court in paragraph 19 held that “… suspicion however strong, cannot take place
as evidence…”
Hence, the respondent submits that except suspicion there is no evidence against a respondent to
hold him guilty which is not permissible in law.
In the case between Mukund Sharma v State of Bihar2 their Lordships held n paragraph 8 that,
“…it is no doubt true that the evidence on record may create grave suspicion in the mind of the
court about the complicity of the other accused also,… however, such grave suspicion cannot
take the place of proof. It is the prosecution to prove its case beyond reasonable doubt…”
In the case of Nevada Properties private limited v State of Maharashtra3 their Lordships held in
paragraph 20 that, “… ‘Suspicion’ is a weaker and a broader expression than reasonable belief
or satisfaction…”
The other case laws are as follows:-
In the case of Rajkumar Singh v State of Rajasthan4their Lordships in paragraph 17 held that, “…
‘suspicion’ however grave it may be, cannot take the place of proof, and there is large difference
between something that ‘may be’ proved and will be proved. In a criminal trial, suspicion no
matter how strong, cannot and must not be permitted to take place of proof…”
[1.3] Double Presumption of Innocence
The respondent has also relied upon a decision of the Hon’ble Supreme Court. In a decided case
of Hon’ble Supreme Court in paragraph 15 of the Judgement in between Chandrappa & Ors. v
State of Karnataka5 their Lordships held that, “… it cannot, however, be forgotten that in case of
1
Sundeplal Sjt Boriak v State of Assam, (2010) 2 GLR 771
2
Mukund Sharma v State of Bihar (2019) 5 SCC 469
3
Nevada Properties private limited v State of Maharashtra, (2019) 0 AIR (SC) 4554
4
Rajkumar Singh v State of Rajasthan, (2013) 5 SCC 722
5
Chandrappa & Ors. v State of Karnataka, (2007) 4 SCC 415
2
acquittal, there is double presumption in favour of the accused. Firstly, the presumption of
innocence available to him under fundamental principle of criminal jurisprudence that every
person should be presumed to be innocent unless he is proved to be guilty by a competent court
of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is
certainly no weakened but reinforced, reaffirmed and strengthened by the trial court…”
In view of the above submissions the respondent submitted that he deserves acquittal.
[1.4] No Entrustment Not Liable
As per the case, Mr. Panther was working in the company as an engineer. He has nothing to
work with the security system with the company’s database nor he was entrusted any work of
security system, he maybe senior to John Kumble who was working in the security system of the
company’ database. Therefore, if any anomalies are detected in the database, then Mr. Panther is
not liable for that. The persons, who were entrusted with the database of the security system of
the company WEML, are involved either directly or vicariously. There is no any evidence to
show that Mr Panther has infiltrated the security of the company. Therefore, Mr. Panther is not
liable for any act done on the database of the security system.
In this, regard the respondent relied upon the decision Sumanth Ramamoorthy v State6 wherein,
the Hon’ble Madras High Court held in Para 19 that, “...in view of the regulation 7 of the above
regulations the responsibility is only contractor for non-compliance of safety measures. Even
assuming there was a non-compliance of safety measures, the contractor alone is liable and the
petitioners cannot be fixed with any criminal liability vicariously...”
In relying upon the decision of the Hon’ble Madras High Court and applying the same in our
instant case it is the same situation that Mr. Panther was not entrusted with the security system of
the company. Therefore, he is not liable either directly or vicariously.
In the decided case in between Superintending Engineer, Mettur Thermal Power Station, Mettur
v Veerappan & Others7 the Hon’ble Madras High Court in Para 45 held that, “...the activity for
which the work was entrusted to an immediate employer, Viz., the contractor was ordinarily a
part of their work, i.e., trade or business. On the facts of this case and applying the principles
6
Sumanth Ramamoorthy v State, (2019) 2 LW (Cri) 409
7
Superintending Engineer, Mettur Thermal Power Station, Mettur v Veerappan & Others, (2011) 2 CIJ 468
3
stated supra in various decisions, this court is of the view that the contract executed by the
Electricity Board with the contractor, forms part of the trade or business and hence, they are
liable to compensation to the legal representatives of the deceased workmen...”
Applying the ratio of the above noted case, Mr. Panther does not form a part of the database
security system by dint of his service of the company. So, he is not liable for leaking the
confidential information that harmed the company.
In another case between K R Purushothaman v State of Kerala 8 their Lordship in Para 20 and 22
discussed about the entrustment and liability as follows:
Para 20: “...the accused dressed appellant was convicted under section 13 (1)(c)(d) of the
Prevention of Corruption Act, 1988 to constitute an offence under clause c of section 13 (1) of
the Act, it is necessary for the prosecution to prove that the accused has dishonestly or
fraudulently misappropriated any property and entrusted to him or under his control as a public
servant or allows any other person to do so or converts that property for his own use. The
entrustment of the property or the control of the property is a necessary ingredient of section 13
(1)(c). On the findings arrived at by the High Court, it is obvious that the property was neither
entrusted nor was under the control of the accused- appellant and thus the accused-appellant
could not have been convicted under the section...”
Para 22: “For the reasons aforesaid, the appeal is allowed. The judgement of the High Court is
set aside.”
Now, applying the ratio of the above noted case of the Hon’ble Supreme Court in our instant
case, it can safely be held that the entrustment of the security system was not on the part of Mr.
Pink Panther which is the main ingredient to implicate Mr. Panther for commission of crime.
Therefore, Mr. Panther is not liable for the harm caused to the company.
[2.] JOHN KUMBLE IS NOT LIABLE FOR ACCESSING THE COMPANIES

DATABASE.
It is humbly submitted before the Hon’ble Court that John Kumble is not liable for accessing the
company’s database system. Though John has broken the security of database but his intention
8
K R Purushothaman v State of Kerala, (2006) 1 SCC (Cri) 686
4
was not mala fide which can be safely construed from his subsequent conduct that he
immediately tried to communicate to his superior but it was his misfortune that his contact was
not attended by the superior but ultimately he could connect and inform to his senior Mr. Pink
Panther. If the conduct of Mr. John is scrutinised, it comes on picture that John is the person who
detected the malware that was accessing the security and redirecting it to another server. Had
there been any ill motive of his act, John Kumble could have kept silent and allowed to damage
the company. But he took every endeavour to stop the malware by informing to his superior.
Apart from this except his information to Panther there is no direct evidence to show that John
broke the security system because of his expertness. The only evidence towards making him
guilty is that he is the only person of the company who is expert in breaking down security
system. This type of evidence is only an inference of circumstantial evidence that is not
conclusive proof. This is very shaky evidence which cannot point towards John firmly. The chain
of circumstances is also missing to pointing towards John. There is no any evidence to show that
the security system broke down at the company’s own office. The cyber hacker may commit
crime not sitting in the company’s computer but can be done from outside also. So, except
circumstantial evidence to make John guilty.
[2.1] Suspicion However Strong Cannot take Place as Evidence
The law is well settled that the circumstantial evidence is based on some principles which the
petitioner has humbly submitted as follows:
In Trimukh Maroti Kirkan v State of Maharashtra 9 their Lordships in Para 10 held that, “...the
normal principles in a case based on circumstantial evidence is that the circumstances form
which an inference of guilt is sought to be drawn must be cogently and firmly established; that
those circumstances should be of a definite tendency unerringly pointing towards the guilt of the
accused; that the circumstances taken cumulatively should form a chain so complete that there is
no escape from the conclusion that within all human probability the crime was committed by the
accused and they should be incapable of explanation on any hypothesis other than that of guilt of
the accused and inconsistent with his innocence.”
9
Trimukh Maroti Kirkan v State of Maharashtra, (2006) 10 SCC 681
5
In the same case their Lordships in Para 16 also held that, “...In a case based on circumstantial
evidence where eyewitness account is available, there is another principle of law which must be
kept in mind. The principle is that when an incriminating circumstance is put to the accused and
the said accused either offers no explanation or offers and explanation which is found to be
untrue, then the same became an additional link in the chain of circumstances to make it
complete.”
So, applying the ratio of the above noted case in our instant case it is found place that John is not
liable for accessing the company’s database, because except suspicion there is no chain of
circumstances to hold that it is only John who has committed the crime. The established law is
that suspicion however, that cannot take place of evidence. (Rajkumar Singh v State of
Rajasthan10)
[2.2] There is No Motive of Mala Fide Intention
Mala Fides or bad faith means dishonest intention or corrupt motive. Even though it may be
difficult to determine whether or not the authority has conferred power in a particular case
because of the board terms in which the statute in question may have conferred power on it, the
administration action may, nevertheless, be declared bad if the motivation behind the action is
not honest. At the time, the courts use the phrase “mala fides” in the board sense of any improper
exercise or abuse of power.
In the sense of mala fide is equated with any ultra vires exercise of administrative power. The
term mala fide has not been used in the broad sense but in the narrow sense of exercise of power
with dishonest intent or corrupt motive. Mala fides in this narrow sense would include those
cases where the motive force behind an administrative action is personal animosity, spite,
vengeance, personal benefit to the authority itself or its relations or friends. Mala fides exercise
of discretionary power is bad as it amount to abuse the power.
The Respondent humbly submitted the following case law as a counter in respect of mala fide
intention which is as follows:
10
Rajkumar Singh v State of Rajasthan, (2013) 5 SCC 722
6
In the case in between State of Punjab: Sardar Prakash Singh Badal v V. K. Khanna 11 in Para 39
their Lordships held that, “...as noticed above mala fide intention or biased attitude cannot be
put on a straight jacket formula depend upon facts and circumstances of each case and in that
perspective judicial precedents would not be of any assistance and as such we refrain from
further dealing with various decisions cited from the Bar since the facts are otherwise different
in each of the decisions.”
[2.3]Absence of Motive of Ill Will
In the decided case between Kanakaranjan @ Kanakan v State of Kerala 12 their Lordships in
Para 21 held that, “...the other ground put forth by the senior council is in respect of motive.
According to him the motive attributed to the accused is that he had cut the rubber trees
belonging to the brother of the accused four years prior to the incident and it is not a sufficient
motive to commit such a heinous crime. Needless to say that in this case motive is a double
edged sword as it can be reason for crime and at the same time a reason for false prosecution
especially when the motive alleged is of ill will and bad blood. In the present case, evidence on
record does not inspire confidence. Therefore, reliance on the motive would not be a safe and
such serves no purpose...”
Here, in our instant case from the activities of John it is found that as soon as he was able to
know about the malware in the company’s database, he took every endeavour to inform his
senior and ultimately he was able inform his senior. Therefore, it can be safely presumed that
John Kumble had no ill will or bad blood and motive behind the act of John for accessing data is
having no malice. So, John is not liable.
In the case between State of A.P. v Goverdhanlal Pitti13 their Lordships in Para 12 held that,
“...the legal meaning of malice is “ill will or spite towards a party and any indirect or improper
motive in taking an action”. This is something described as “malice in fact”. “Legal malice” or
“malice in law” means something done without lawful excuse. In other words, it is an act done
11
State of Punjab: Sardar Prakash Singh Badal v V. K. Khanna (2001) 2 SCC 330
12
Kanakaranjan @ Kanakan v State of Kerala, (2017) 13 SCC 597
13
State of A.P. v Goverdhanlal Pitti, (2003) 4 SCC 739
7
wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done
from ill feeling and spite. It is a deliberate act in disregard of the right of others...”
Now, applying this principle in our instant case it is crystal clear that John had no ill will either
malice in fact or legal malice or malice in law because he has not done the act of breaking the
security system to cause any wrongful loss to the company nor wrongful gain to himself
[2.4] Extra Judicial Confession
The respondent most humbly submitted that it is the statement of Panther in the public media
made against Mr. John that he came to know about the malware of the company database and on
the basis of that and the company WEML filed a case against John for breaching their private
database system. Therefore, the evidence against Mr. John is an extra judicial confession which
is a publication in the public media. Therefore, the statement of Mr. Panther is an extra judicial
confession wherein Mr. Panther is also an accused for leaking the confidential information,
wherein, it is enough that confession of Mr. Panther is extra judicial confession implicating Mr.
John. But the extra judicial confession of co-accused is not reliable evidence. In this regard the
respondent relied upon the following decision:
In the case between Asar Mohammad v State of Uttar Pradesh14 their Lordships in Para 15 held
that, “...by now it is well settled that confession of the co-accused by itself cannot be the basis to
proceed against the other accused unless something more is produced to indicate their
involvement in the commission of the crime...”
[2.5] Innocent Person Should be Punished
The respondent also relied upon the decision of the Hon’ble Supreme Court of the case between
Reena Hazarika v State of Assam15 their Lordships in Para 7 held that, “...it is well established
principle of criminal jurisprudence that several accused may go free but an innocent person not
be punished...”
In our instant case, there is no other evidence except the statement of Mr Panther to implicate
John. Hence, the statement is not reliable.
14
Asar Mohammad v State of Uttar Pradesh, (2019) 12 SCC 253
15
Reena Hazarika v State of Assam, (2019) 3 SCC 289
8
In view of the above facts and circumstances the respondent humbly prayed that the petitioner
case be dismissed.
[3.] THE ACTIONS OF MR. PINK PANTHER ARE NOT CONCLUSIVE TO STATE
THAT IS WAS A DEFAMATORY ACT
The respondent humbly submitted that there is no other evidence except the statement made by
Mr. Panther in the public media that he named John Kumble who is the employee of the
company informing him about the malware. The respondent has not used any derogatory word
against John. Therefore, if the Section 499 of the Indian Penal Code, 1860 is applied in our
instant case then it comes that the section indicates that if anybody either spoken or intended to
be read or by sign or by visible representation makes or publishes any imputation concerning any
person intending to harm or knowing or having reasons to believe that such imputations will
harm the reputation of such person is defamation. Here, it is true that the statement is made Mr.
Panther. But there is no word either spoken or by visible representation published in the public
media which makes neither any imputation against Mr. John nor such statement has any
intention to harm or reasons to believe that he made the same to harm Mr. John. Therefore, the
statement made by Mr. Panther is nowhere had made any harm to the reputation of John Kumble.
Secondly, to have a conclusive proof the Section 4 the Indian Evidence Act clarifies that to have
attracted conclusive proof there must be one fact is declared by the Act to be conclusive proof of
another, then on proof of one fact regard the other as proved and law is that in such situation
there shall not allow evidence to be given for the purpose of disproving it. Here in our instant
case there is no any such fact that arose declared by the Evidence Act to be conclusive proof of
another. It means there is no such two case which can be used subsequently which the law debars
disproving same.
The only facts of Mr. Panther is that he made the statement in the public media against John by
naming that he is the person who informed about the malware. This statement also cannot be
taken as an admission because there is no any written statement made by Mr. Panther in the
district court by taking a plea that he was informed by John. So, this cannot be taken into
consideration as admission on the part of Mr. Pink Panther. For the arguments sake if it is taken
into consideration as an admission then also there are catena of judgements passed by Hon’ble
9
Supreme Court and various Hon’ble High Courts that admission is not conclusive proof of
evidence.
In view of the above submissions the respondent humbly submits that the statement made by Mr.
Pink Panther is not defamatory to say as a conclusive proof.
[3.1] No Revision Lies Without Any Order of District Court
In the case of Shatrughna Prasad Sinha v Rajbhau Surajmal Rathi 16 in Para 9 their Lordships
held that, “…the next question is whether the learned Judge was right in holding that the
complaint discloses offence punishable under Section 500, IPC? Section 499 defines defamation
thus…”
In the same case in Para 12 their Lordships also held that, “…At this stage, we cannot embark
upon weighing the evidence and come to any conclusion to hold, whether or not the allegation
made in the complaint constitute an offence punishable under Section 500…the magistrate prima
facie came to the conclusion that the allegations might come with the definition of defamation
under Section 499 IPC and could be taken cognizance of. But these are the facts to be
established at the trail…”
The case of defamation is still pending in the District Court which is call for under Article 227 of
the Constitution of India by the Hon’ble Court of Indigo, which is not trial court. Therefore the
question of defamation cannot be taken by the Hon’ble High Court which is the subject matter
trail court. Article 227 is a revisional jurisdiction in respect of scrutiny of a particular order.
Therefore, the subject matter is barred sitting in the revisional court under Article 227.
Applying the ratio of this judgement in our instant case it comes that this question raised in the
appellate jurisdiction of the Hon’ble High Court of Mandas and there is not any petition for
quashing of the original case pending in the district court filed by Mr. John. Wherein by applying
the provision of Article 227 which is a revisionary jurisdiction call for this case record before the
Hon’ble Mandas High Court. Therefore, sitting in an appellate or revisional jurisdiction the
Hon’ble High Court cannot decide about the defamation without any final order of district court.
16
Shatrughna Prasad Sinha v Rajbhau Surajmal Rathi, (1996) 6 SCC 263
10
In the case of Google Indian Private Limited v Visakha Industries 17 their Lordships in Para 149
held that, “…it is also clear that to constitute the offence under Section 500 of the IPC, mere
publication would not suffice. As we have noted, we cannot go into the aspect on the basis of the
notice sent on 09/10/2008 by the complaint on account of the obstacles which we have pointed
out earlier. In other words the disowning of the liability to remove the post is inextricably
intertwined with the appellant’s denial of it being the intermediary. Also, the question as whether
the demand for URL and justification for not removing based on the same being questions
essentially relating to the facts cannot be gone into Section 482 proceedings…”
Here also, the judgement says that sitting in a High Court for quashing of defamation in a
petition under Section 482 for defamation relating to facts is of no jurisdiction. Thereby, the
respondents humbly submit that in our case in hand also the question of defamation as to the
proof of the same by conclusive evidence cannot be the subject matter of the Hon’ble High Court
whose jurisdiction of the district court.
In the case of Union of India v Ibrahim Uddin 18 their Lordships in Para 24 held as follows,
“...admission are not conclusive proof but may operate as estoppel against its maker. Documents
are necessarily either proved by witness or marked on admission...”
Applying the above cited case laws in our instant case it is clear that admission is not conclusive
proof.
[3.2] Extra Judicial Confession
In the case between Kavita v State of T. N.19 their Lordships in Para 4 held that, “...there is no
doubt that convictions can be based on extra judicial confession but it is well settled that in that
very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and
the value thereof depends upon the veracity of witness to whom it is made. It may not be
necessary that the actual words used by the accused must be given by the witness but it is for the
court to decide on the acceptability of the evidence having regard to the credibility of the
witnesses...”
17
Google Indian Private Limited v Visakha Industries, (2020) 4 SCC 162
18
Union of India v Ibrahim Uddin, (2012) 8 SCC 148
19
Kavita v State of T. N., (1998) 6 SCC 108
11
Here in our case in hand it is fact that Mr. Pink Panther made the statement in the public media
against John implicating himself about the malware of database system of the company. So, this
statement if treated as an extra judicial confession then also it is not acceptable relying upon the
facts that Mr. Panther statement is not supported by any other evidence to make it acceptable in
the eye of law.
In the case between Pancho v State of Haryana20 wherein their Lordships held in Para 16 that,
“...this court retreated that a confession cannot be treated as substantive evidence against a co-
accused. While the prosecution relies upon the confession of one accused against another, the
proper approach is to consider the other evidence against such an accused and if the said
evidence appears to be satisfactory ad the court is inclined to hold that the said evidence may
sustain the charge framed against the said accused, the court turned to the confession with a
view to assuring itself that the conclusion which it is inclined to draw from other evidence is
right. This court clarified that though confession may be regarded as evidence in generic sense
because of the provisions of section 30 of the Evidence Act, the facts remains that it is not
evidence as defined in Section 3 of the Evidence Act. Therefore, in dealing with a case against
accused, the court cannot start with the confession of a co-accused...”
Herein in our instant case, both John and Mr. Panther were alleged to have breached the
company’s database. Therefore, the statement made by Mr. Panther in the public media imputing
John cannot be a confessional statement as per the above cited case law.
[3.3] Circumstantial Evidence is Not Conclusive Proof
In the case between Rajendra Pralhadrao Wasnik v State of Maharashtra21 their Lordships in
Para 29 held that, “...the prosecutions that must be taken by all the courts in cases of
circumstantial evidence is this: if the court has some doubt on the circumstantial evidence on
record, that the accused might not have committed the offence, then a case of acquittal could be
made out; if the court has no doubt on the circumstantial evidence then of course a conviction
must follow...”
20
Pancho v State of Haryana, (2011) 10 SCC 165
21
Rajendra Pralhadrao Wasnik v State of Maharashtra, (2019) 12 SCC 460
12
Therefore, relying upon the decision of above cited case the presumption goes in favour of Mr.
Panther is that since except statement, there is no any other evidence and that only can be taken
as circumstantial evidence is not proved where doubt is created as to the making of the
statement.
In view of the above case, Mr. Panther is not liable.
[3.4] Admission is Not a Conclusive Proof
In the case between Nagubai Ammal v B. Snama Rao22 their Lordships held in Para 18 that,
“...an admission is not conclusive as to the truth of the matter stated therein. It is only a piece of
evidence, the weight to be attached to which must depend under circumstances under which it is
made. It can be shown to be erroneous or untrue, so long as the person to whom it was made was
not acted upon it to his detriment, when it might become conclusive by way of estoppel...”
On relying upon the decision of this case law, it is crystal clear that the defamatory statement
made in the public media cannot be hold good to be taken as conclusive proof.
In view of the above facts and circumstances the respondent humbly submitted that action of Mr.
Panther publishing the statement in the public media is not conclusive proof of defamatory act on
the part of Mr. Panther.
[4.] WHETHER THE HIGH COURT HAS THE POWER TO TAKE UP ANY CASE
OF INDIGO OR NOT
The respondent humbly submits that while taking into consideration the appeal filed by the
company before the Hon’ble Mandas High Court by losing his case in district court against Mr.
Panther where the allegation is that Mr. panther intended to leaking confidential information.
The Hon’ble Mandas High Court found that there are other cases wherein the WEML Company
filed against John for breaching the private database system, and John Kumble filed a case
against Mr. Pink Panther for defaming him besides the appeal also. Therefore, the Hon’ble High
Court of Mandas invoking the power under Article 227 of the Constitution of Indigo issued
22
Nagubai Ammal v B. Snama Rao, (1956) 0 AIR (SC) 593
13
notice to the Court of Sessions and took up the matter for adjudication being the dispute is
around the breach in WEML Company.
Therefore, it comes that the power of Article 227 of the Constitution of Indigo is applied to take
up matters of adjudication of case against John for breaching company’s database system as well
as Panther publicly defaming to John including the appeal where the company lost the case
against Mr. Panther for leaking confidential information at district court.
No doubt, the High Court has the power to take up appeal but, trial of the other two cases is a
subject matter of district court. Sitting in a High Court, Hon’ble Court cannot proceed to hear
case as an original jurisdiction lies in the lower court. The High Court has only the power to take
up case of lower courts where any order is passed by the lower court and that is challenged by
revision under Section 115 of Code of Civil Procedure or where the order is not revisional order,
than invoking the provision of Article 227 of the constitution of Indigo.
Here, in our instant case no any final order or any interlocutory orders are challenged before the
Hon’ble High Court of Mandas by any party or any gross irregularities were found from the
district court while taking up all the two cases of district court except the appeal by the Hon’ble
High Court of Mandas.
It is clear from the facts that the Hon’ble High Court has taken up all the cases while hearing the
appeal for adjudication. Therefore, the High Court was about to go for trial of two cases, that is,
John Kumble v WEML and John Kumble v Mr. Pink Panther. As an original jurisdiction which
is barred as per the provision of Section 15 of the Code of Civil Procedure, 1908, where every
suit is required to be instituted in the court of lowest grade competent to try it. Again, as per
Chapter II of the Code of Criminal Procedure 1973, High Court is not empowered to try the case
of defamation. In all these matters, the High Court can take up as an appellate jurisdiction or
revisional jurisdiction either by invoking the power of appeal or revision or under Article 227 of
the Constitution of Indigo.
The law also says that where appellate jurisdiction is there court cannot convert the same to the
revisional jurisdiction either by invoking Section 115 of the Code of Civil Procedure or Article
227 of the Constitution of Indigo which is an “established law”.
14
In view of the above facts and circumstances the respondent humbly submitted that the Hon’ble
High Court of Mandas has the power to take up the appeal but as regards to the other two cases
pending in the district court has no power to adjudicate under invoking the provision of Article
227 of the Constitution of Indigo.
The following are the case laws relied upon by the respondent:
[4.1] Under Article 227 High Court Has no Power for Finding of Facts or Trial
In the case between Rena Drego v Lalchand Soni23 their Lordships in Para 4 held that, “…
supervisory jurisdiction under Article 227 which obliges the High Court to confine to the
scrutiny of records and proceedings of the lower tribunal. By relying on a fresh material which
were not before the tribunal, the High Court should not have disturbed finding of facts in
exercise of such supervisory jurisdiction. It is now well-nigh settled that power under Article 227
is one of judicial superintendence which cannot be used to upset conclusions of facts, however
erroneous those may be, unless such conclusions are so perverse or so unreasonable that no court
could ever have risked them. Way back in 1954, a constitution bench of this Court in Waryam
Singh and Anr v Amarnath and Anr.1, has pointed out that the power of superintendence
conferred by Article 227 should be exercised most sparingly and only in appropriate cases in
order to keep the subordinate courts within the bounds of their authority and not for correcting
mere errors.”
In the same case, their Lordships in Para 5 held that, “…the power of superintendence of High
Court under Article 227 being extra ordinary is to be exercised most sparingly and only in
appropriate cases…the High Court cannot, while exercising jurisdiction under Article 227,
interfere with findings of facts recorded by the subordinate court or tribunal. Its function is
limited to seeing that the subordinate court or tribunal functions within the limits of its authority.
It cannot correct mere errors of facts by examining the evidence and appreciating it.”
In the case of Raj Kumar Bhatia v Subhash Chander Bhatia 24 Court held that, supervisory
jurisdiction conferred on High Court under Article 227 is confined only to see whether an
inferior court or tribunal has proceeded within the parameters of its jurisdiction.
23
Rena Drego v Lalchand Soni ,(1998) 3 SCC 341
24
Raj Kumar Bhatia v Subhash Chander Bhatia, (2018) 2 SCC 87
15
Therefore, from the above cited case it is clear that by invoking the power under Article 227 the
High Court cannot adjudicate the two cases pending in the learned District Court, whereas the
appeal is separate from this which cannot be clubbed for adjudication.
[4.2] Under Article 227 High Court Cannot Substitute Findings of District Court
In a reported case in between S. J. Ebenezer v Velayudhan25 their Lordships in Para 11 held that,
“…..a reading of the order of High Court will show that it was substituted its view in the place of
the view taken by the statutory authority which is not within the jurisdiction of High Court while
exercising power under Article 227 of the Constitution of India…”
Relying upon the above noted decision it is clear that the High Court has no jurisdiction to make
a view or substitute a view by replacing the view taken by a statutory authority means District
Court in the name of Article 227.
[4.3] No Jurisdiction Unless There is Grave Error or Injustice Caused to a Party Under
Article 227
In a case in between Koyilerian Janaki v Rent Controller (Munsiff), Cannanore26 their Lordship
in Para 4 held that, “…the power under Article 227 is exercisable where it is found by the High
Court that due to certain grave error and injustice has been caused to a party…”
Applying the above cited ruling, in our instant case nowhere any facts brought before the court
that some grave error and injustice has been caused to any party. Therefore, the adjudication of
the case pending in the District Court cannot be taken up by the Mandas High Court.
[4.4] Where There is a Provision For Remedy of Revision Article 227 is Not Applicable
In the case between Nimai Kar v Bishnupada Saha27 the Hon’ble Gauhati High Court in Para 28
of the judgement held that, “…from the aforesaid findings of the Apex Court, it can be easily
said that the power under Section 115 of the Code of Civil Procedure and the power under
Article 227 is quite distinct and different and not interchangeable. Therefore, when there is a
25
S. J. Ebenezer v Velayudhan, (1998) 1 SCC 633
26
Koyilerian Janaki v Rent Controller (Munsiff), Cannanore, (2009) 9 SCC 406
27
Nimai Kar v Bishnupada Saha, (2011) 0 AIR (Gau)1
16
remedy available under Section 115 Code of Civil Procedure, then the court should not exercise
its power under Article 227 of the Constitution unless it is an exceptional case where it is so
necessary to interfere with the order of the court subordinate to it to prevent from miscarriage of
justice. In Koyilerian Janaki v Rent Controller (Munsiff), Cannanore and Ors (2000) 9 SCC 406,
the Apex Court in Para 4 of the said report held that…the power under Article 227 is…..Even if
it is considered that the Court below failed to exercise the jurisdiction vested on it in not
returning the plaint, then the remedy to a party like the petitioner is a revision under Section 116
of the Code of Civil Procedure, not under Article 227 of the Constitution…”
In view of the above facts and circumstances it is clear that in our instant case the Hon’ble
Mandas High Court has taken up the two cases of the District Court for adjudication under
Article 227. So, had there been any order in the learned District Court then that would have been
under jurisdiction of revision under Section 115 of the Code of Civil Procedure, 1908.
[4.5] Where there is a Specific Provision of Appeal no Revision Lies
In the case between Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v Tuticorin
Educational Society28 their Lordships in Para 14 held that, “…therefore wherever the
proceedings are under the Code of Civil Procedure and the forum is the civil court the
availability of a remedy under the CPC will deter the High Court, not merely as a measure of
self-imposed restriction, but as a matter of discipline and prudence, from exercising the power of
superintendence under the Constitution. Hence, the High Court ought not have entertained the
revision under Article 227 especially in a case where a specific remedy of appeal is provided
under the Code of Civil Procedure itself…”
In applying the above cited case law in our instant case it is crystal clear that the call for records
from the District Court for adjudication by invoking the power of Article 227 is against the
provision where the appeal has taken up by the High Court, because where specific remedy of
appeal is there Article 227 does not lie.
[4.6] Jurisdiction Under Article 227 Could not be Exercised “as the clock of an appeal in
disguise”
28
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v Tuticorin Educational Society, (2019) 9 SCC 538
17
In the case between Celina Coelho Pereira v Ulhas Mahabaleshwar Kholkar 29 their Lordship in
Para 33 held that, “…it is settled law that the jurisdiction under Article 227 could not be
exercised “as the clock of an appeal in disguise””
Relying upon the decision of the above cited case law, it clearly indicates that the call for of
pending record of the District Court for adjudication under clock of an appeal is not permissible.
The Court cited the order in the case of Achal Misra vs Rama Shanker30 where it was held that
even if a party does not challenge the vacancy order by way of writ petition, it can still challenge
the same order along with the final order passed under Section 16 in the revision under Section
18. Therefore, the District Judge was justified in interfering with the order passed by the Rent
Controller and Eviction Office.
The Court also observed that it is a well settled principle of law, that while exercising
jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself
into a court of appeal. The supervisory jurisdiction extends to keeping the subordinate
tribunals within the limits of their authority and seeing that they obey the law. Even
though the powers under Article 227 are wide, they must be exercised sparingly and only to
keep subordinate courts and Tribunals within the bounds of their authority and not to
correct mere errors.
In the case between State, through Special Cell, New Delhi v Navjot Sandhu @ Afshan Guru31 in
Para 28 their Lordship[s held that, “…(i) the jurisdiction under Article 227 cannot be limited or
fettered by any Act of the state Legislature;
(ii) The supervisory jurisdiction is wide and can be used to meet the ends of justice, also
to interfere even with interlocutory order;
(iii) The power must be exercised sparingly, only to move subordinate courts and
Tribunals within the bounds of their authority to see that they obey the law. The power is not
29
Celina Coelho Pereira v Ulhas Mahabaleshwar Kholkar ,(2010) 1 SCC 217
30
Achal Misra vs Rama Shanker, (2005) 5 SCC 531
31
New delhi v Navjot Sandhu @ Afshan Guru, JT 2003 (4) SC 605
18
available to be exercised to correct mere errors (whether on the facts or laws) and also cannot be
exercised “as the cloak of an appeal in disguise”…”
In view of the submission of the above case laws, the respondent humbly submitted that the High
Court does not have the power to take up any case from a subordinate court under Article 227 of
the Constitution of Indigo.
PRAYER
Wherefore, in light of the Issues raised, Authorities cited and Arguments Advanced, it is most
humbly and respectfully prayed that the Hon’ble High Court of Mandas be pleased to:-
I. Dismiss the appeal with costs along with compensatory cost under Section 35 A of the
Code of Civil Procedure, 1908 against the appellant/Petitioner for false and vexatious
claim of appellant;
II. Dismiss the appeal on the ground that John Kumble is not liable for accessing the
company’s database;
III. Pass an order declaring that the actions of Mr. Pink Panther in making a remark in the
public media is not a defamatory act and the same is not conclusive proof of defamation
against John Kumble;
IV. Declare that the Article 227 of the Constitution of Indigo does not empower the Hon’ble
High Court to call for record from its subordinate court.
AND/OR
19
THE RESPONDENTS ALSO PRAYED THAT YOUR LORDSHIPS MAY DISMISS THE
APPEAL WITH COSTS AND ALSO PASS ORDER IMPOSING COMPENSATORY COST
IN RESPECT OF FALSE AND VEXATIOUS CLAIM OF THE APPELLANT UNDER THE
PROVISION OF SECTION 35 A OF THE CODE OF CIVIL PROCEDURE, 1908 AND PASS
SUCH OTHER ORDER/ORDERS AS YOUR LORDSHIP MAY DEEM FIT AND PROPER
IN THE BEST INTEREST OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE
AND FOR THIS ACT OF KINDNESS THE RESPONDENTS AS IN DUTY BOUND SHALL
EVER PRAY.
OBLIGED
DATE:_________________,2020 S/d
PLACE: MANDAS HIGH COURT Counsels for Respondents
20

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THE LEGAL INSIDER IN COLLABORATION WITH I.E.C.

THE LEGAL INSIDER IN COLLABORATION WITH I.E.C. UNIVERSITY, SOL

WINCROP EARTH MOVERS Ltd. V MR. PINK PANTHER

UPON SUBMISSION TO THE HON’BLE JUDGES OF THE HIGH COURT OF MANDAS

[MEMORIAL ON BEHALF OF THE RESPONDENTS]

INDEX OF AUTHORITIES …………………………..………………………………………...iv

TABLE OF CASES …………………………………………………………………………...v-vi

SUMMARY OF FACTS …………………………………………………………………...viii-ix

STATEMENT OF ISSUES ………………………………………………………………….......x

ARGUMENTS ADVANCED ……………………………………………………………............1

[1.1] Mere Presumption by the Company cannot be an Evidence………………………...…1

[1.2.1] Suspicions However Strong is Not Evidence………………………………….2

[1.3] Double Presumption of Innocence…………………………………………………. 2-3

[1.4] No Entrustment Not Liable………………………………………………………….3-5

[2.] JOHN KUMBLE IS NOT LIABLE FOR ACCESSING THE COMPANIES

[2.1] Suspicion However Strong cannot takes Place as Evidence………………………5-6

[2.2] There is No Motive of Mala Fide Intention………………………………………6-7

[2.3] Absence of Motive of Ill Will……………………………………………………..7-8

[2.5] Innocent Person Should be Punished……………………………………………….8-9

[3.1] No Revision Lies Without Any Order of District Court…………………………10-11

[3.2] Extra Judicial Confession………………………………………………………….12

[3.3] Circumstantial Evidence is Not Conclusive Proof………………………………….13

[3.4] Admission is Not a Conclusive Proof………………………………………………13

[4.5] Where there is a Specific Provision of Appeal no Revision Lies …………………..18

1. Asar mohammad v state of uttar Pradesh (2019) 12 scc 253 ………………………… 8

CIVIL APPEAL NO.----------------------OF 2020

[1]. WHETHER MR. PINK PANTHER IS LIABLE FOR LEAKING CONFIDENTIAL

[2]. IS JOHN LIABLE FOR ACCESSING THE COMPANY’S DATABASE OR NOT?

[3]. WHETHER THE ACTIONS OF MR. PANTHER ARE CONCLUSIVE TO STATE

[1.1] MERE PRESUMPTION BY THE COMPANY CANNOT BE AN EVIDENCE

[1.2] SUSPICION NO MATTER HOWEVER STRONG THAT CANNOT TAKE PLACE

[1.2.1] Suspicions However Strong is Not Evidence

[1.3] Double Presumption of Innocence

[2.] JOHN KUMBLE IS NOT LIABLE FOR ACCESSING THE COMPANIES

[2.1] Suspicion However Strong Cannot take Place as Evidence

[2.2] There is No Motive of Mala Fide Intention

[2.3]Absence of Motive of Ill Will

[2.4] Extra Judicial Confession

[2.5] Innocent Person Should be Punished

THAT IS WAS A DEFAMATORY ACT

[3.1] No Revision Lies Without Any Order of District Court

[3.2] Extra Judicial Confession

[3.3] Circumstantial Evidence is Not Conclusive Proof

In view of the above case, Mr. Panther is not liable.

[3.4] Admission is Not a Conclusive Proof

[4.5] Where there is a Specific Provision of Appeal no Revision Lies

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