Ajay v. The State of Maharshtra & Anr.

Judgment

1. Heard Mr. Sabharwal, learned Advocate for Petitioners, Mr. Thorat, learned Advocate for Respondent No.2 and Ms. Phad, learned APP for State.

2. Criminal Writ Petition No. 245 of 2025 is filed under Article 226 of the Constitution of India read with Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 for quashing and setting aside FIR Cr. No. 367 of 2023 under Section 406, 409, 420, 120B r/w 34 of Indian Penal Code, 1860 registered at Dattawadi Police Station, Pune. The complaint has been filed on behalf of Tunwal e-Motors Private Limited by its Manager. The company has its registered office in Pune and is in the business of manufacturing, assembling and selling of electronic 1 of 15

two-wheeler vehicles. Brief facts relevant for adjudication of present Writ Petition are as follows.

3. Petitioners are Directors in the company called R.K. Container Line Private Limited ( for short “RKCL”). RKCL provides containers and transportation service for goods/shipments from the port of lading. RKCL and Tunwal e-Motors Private Limited admittedly have a business relationship since July 2021. RKCL used to pay rent and other local charges for the goods/shipments of Tunwal e-Motors Private Limited and same regular invoices and through the Custom House Clearing Agent would collect the shipment arriving at Navha- Sheva port in Mumbai in its containers and deliver it to its destinations.

3.1. The fact that from July 2021 until filing of the present complaint in Dattawadi Police Station, Pune on 05.12.2023, the relationship between the above parties subsisted is not denied and stands admitted from the overwhelming documentary evidence placed on record. The relationship is such that substantial amounts are paid by the Complainant company collectively to RKCL which are adjusted and applied towards liquidating the invoices raised for the purpose of claiming and transportation of goods belonging to Complainant.

3.2. Dispute arose when there was a delay in delivery of 12 containers containing goods as alleged during the above period. On 2 of 15

17.01.2022, goods of Complainant company arrived at Navha-Sheva port. They were covered by 3 invoices and disbursed in 12 containers. According to Complainant it had paid Rs.47,09,474/- towards transport charges, shipping line charges and CFS charges through its bank accounts to RKCL but still there was delay in delivering the containers notwithstanding the business relationship between the 2 companies which led to detention of the goods. Dispute has arisen due to Complainant company having paid the custom duty of 8 containers to RKCL, but RKCL on having paid it thereafter to secure release of the goods demanded more amount for release/delivery of the containers since it had exhausted its resources.

3.3. Hence, case of Complainant company is that it suffered huge financial loss due to non-delivery of containers despite RKCL receiving payment being the cause of action. Complainant company has filed complaint on 05.12.2023 through its Manager which is numbered as Cr. No. 367 of 2023.

4. Mr. Sabharwal, Learned Advocate appearing for Petitioners who are 3 directors of RKCL would make the following submissions for seeking quashing of the complaint report registered as Cr. No. 367 of 2023 on 05.12.2023. He would submit that no cause of action rather any delay is attributed to RKCL or for that matter to its Directors in the present case. He would submit that RKCL’s obligation is to raise the 3 of 15 invoice on intimation then receive the shipment and effect deliveries from the designated port. He would submit that once the shipment arrives at the designated port the carrier company namely RKCL is duty bound to receive the TELEX Bill of Lading (for short “BoL”) from the supplier (foreign company) for effecting release of the goods on behalf of the importer (in this case the Complainant company).

4.1. He would submit that purpose of issuing the TELEX BoL is to acknowledge and secure payment due to the supplier from the buyer. He would submit that though RKCL issued 3 invoices on the

03.12.2021 and 17.01.2022 in the case of imports by Complainant after arrival of the shipments at the Indian port, they were kept on hold as it had not received TELEX BoL from the supplier company to give the No Objection Certificate for effecting release of the goods. He would submit that documentary evidence prima facie shows that the 3 shipments were kept on hold at the port for nearly 71 day, 99 days and 50 days respectively after its arrival at the port due to the above reason which is not attributable to RKCL.

4.2. Hence, he would argue that failure of the private Complainant company to discharge its duty towards the supplier company for issuing TELEX BoL for release of its shipment cannot be attributed to RKCL. He would submit that there were as many as 8 invoices which were overdue from the private Complainant company 4 of 15 to the tune of Rs.1,34,00,000/- from time to time and these are placed on record. He would submit that on 01.02.2022 the private Complainant company cleared lumpsum dues of Rs.1,30,00,000/- of RKCL which was adjusted and applied to invoices cleared. He would submit that view of this, the figure mentioned in the FIR for outstanding debts was never Rs.1,06,00,000/- as it is contrary to the invoices issued as per RKCL’s ledger account maintained in its books qua the Complainant company.

4.3. He would submit that because of healthy business relations with the Complainant company, RKCL on its own volition made advanced payment of fresh charges to the shipping agency of Rs.71,54,000/-. He would submit that even thereafter, when the goods under the 3 invoices arrived, in view of non production of TELEX BoL the goods remained in the port in storage leading to escalation of detention charges. He would submit that on giving repeated reminders, Complainant company then effected further lumpsum payment of Rs.1,44,00,000/- to RKCL towards its outstanding liability qua many other invoices. It is in this context that the shipment received on

29.01.2022 remained detained for want of TELEX BoL from

26.11.2021 to 06.02.2022.

4.4. He would submit that these charges accumulated to Rs.43,36,000/- which is attributable to the Complainant company and 5 of 15 it was therefore adjusted from the payments made by the Complainant company. He would submit that even after such adjustment the Complainant company was still in debt and was required to pay an amount of Rs.96,37,000/- towards outstanding invoices.

4.5. Hence, he would submit that consequentially due to delay of 71 days ,99 days and 59 days in receiving the TELEX BoL dated

17.02.2022 (1 bill) and 17.03.2022 (2 bills), the detention charges of the shipment detained rose to Rs.1,87,00,000/-. He would submit that Complainant company was in financial distress which is prima facie evident from the correspondence placed on the record. He would submit that record shows that 30% waiver of detention charges was agreed by the vessel company at the request made by RKCL on behalf of the Complainant company.

4.6. In the aforesaid background, he would vehemently argue and submit that Complainant company filed Commercial Civil Suit in the Delhi High Court seeking damages for losses of approximately Rs.8,54,00,000/- and issued per-instituational mediation notice dated

15.02.2023 to RKCL. Copy of that notice is appended at page No. 149. He would submit that pre-litigation mediation failed. He would submit that by this very action of filing the Commercial Suit, the private Complainant company accepted that the lis between the parties was a commercial dispute and not a criminal offence. Copy of the suit plaint 6 of 15 is appended to the Petition. He would draw my attention to the mediation application filed by the private Complainant company, wherein it has described the dispute between parties as a commercial dispute and has quantified its claim at Rs.8,24,00,000/-. He would submit that the lis between the parties is on the basis of assertions made by the Plaintiff i.e. private Complainant company and denial of the same by the defendant RKCL.

4.7. On the basis of above submissions Mr. Sabharwal has emphatically argued that if the entire documentary evidence appended to the Petition is seen, the dispute is that of a purely civil and commercial nature on the basis of the ledger and books of accounts maintained by RKCL. He would submit that the issue of unpaid detention charges due to delayed receipt of TELEX BOL cannot be therefore attributed to RKCL. Therefore he would submit that, there is no question of any dishonest intention whatsoever in the present case.

4.8. Hence, he would submit that this is a fit case for quashing of the FIR which is nothing but a pressure tactic adopted by the private Complainant company and if the FIR is seen it doesn’t constitute any offence of cheating and for that matter offence of breach of trust qua Petitioners who are Directors of RKCL u/s 406, 409, 420 of the Indian Penal Code, 1860. He would therefore urge the court to allow the Petition in terms of prayer clause (b) and quash and set aside the FIR 7 of 15 and RCC No. 2578 of 2025 as prayed for.

5. PER CONTRA, Mr. Thorat, learned Advocate appearing for Respondent No.2 - the private Complainant company would vehemently respond by arguing that notwithstanding substantial advanced payment of over Rs.2,33,58,000/- having been made to RKCL, there still was detention and delay in delivery of the goods under the 3 invoices leading to substantial financial loss. He would submit that it is true that commercial suit was filed by the private Complainant company in the Delhi High Court bearing Suit No. 1 of 2023 for the same cause of action, but in view of the said company later realizing that there was forgery and fabrication of the 3 invoices due to which fraud was played, it filed FIR after 11 months in Dec

5.1. He would vehemently submit that after filing of FIR statement of the CEO of RKCL was recorded in April 2024. Copy of this statement is appended at page No. 573 and according to him this statement showed that some mischief was played by RKCL in raising the 3 contentious invoices of payment for outstanding dues. Next, he would draw my attention to page No. 809 of the Petition where the statement of Ms. Poonam Sagar, the Manager of RKCL is recorded and placed wherein she states that she had prepared the 3 contentious invoices at the behest and on the instructions given by the applicants 8 of 15 and that she was merely an employee of the company RKCL.

5.2. Finally he would draw my attention to page No. 824 of the Petition wherein letter dated 11.11.2024 addressed by the police inspector investigating offence the is placed and it states that upon investigation the police was of the opinion that the contentious 3 invoices were forged and fabricated which were issued by RKCL.

5.3. On the basis of the above submissions and circumstances and the opinion expressed by the Police Officer he would contend that if the FIR appended at page No. 830 is read it would be evident that the amount of Rs.23,00,000/- was adjusted despite which the detention of goods occurred and the subsequent delay led to severe financial loss for the Complainant.

5.4. Mr. Thorat would submit that the test for quashing is well settled inasmuch as the powers for quashing has to be exercised sparingly and with circumspection. He would submit that Court is not required to conduct meticulous examination of the evidence to determine whether the prosecution case will ultimately result in conviction.

5.5. He would submit that present case is not merely a civil dispute but is in the nature of criminal offence in the course of commercial transaction between the parties and therefore merely commercial character of the transaction cannot be a ground for 9 of 15 quashing. He would vehemently submit that FIR / Complaint is required to be considered as a whole which prima facie discloses ingredients of criminal findings. He would submit that there is substantial correspondence between the parties to show that private Complainant had delivered humongous amounts to Petitioner - RKCL which is evident from various communication and correspondence despite which there is failure on the part of RKCL to issue the delivery orders. He would submit that all such material regarding withholding of the delivery orders cannot be disregarded.

5.6. He would submit that the unauthorized adjustment of funds on the part of Petitioner RKCL therefore requires adjudication at trial. He would vehemently submit that at this stage, the Court cannot conclusively determine the adjustment made by Petitioner which was authorized or contractually permissible in law whether bonafide or dishonest. He would submit that these questions necessarily depend upon the contractual terms, invoices, payment transactions, ledger accounts, communication between the parties, written statement and surrounding circumstances as also all elements and ingredients of critical breach of trust are therefore matter of evidence.

5.7. He would conclude by stating that the allegations of cheating cannot be dismissed merely because the transaction is commercial in nature and Petitioner cannot indirectly seek acquittal through Section 10 of 15 482 by quashing the complaint on the ground that transactions between the paries were commercial in nature. He would submit that none of the ingredients of quashing as contemplated by the Supreme Court in the case of State of Haryana and Ors. Vs. Ch. Bhajan Lal and Ors.1 principle established in the present case and the interest of justice therefore requires the trial to proceed in the criminal Court.

5.8. Lastly, he would submit that even if civil remedy exists, it is not exclusively and existence of civil remedy is entirely irrelevant where factual allegations prima facie discloses the criminal offence as is in the present case. He would therefore submit that Petition deserves to be dismissed. In support of this submissions he has referred to and relied upon the following decisions:- i) Trisuns Chemical Industry v. Rajesh Agarwal & Anr.2; ii) Priti Saraf & Anr. v. State (NCT of Delhi) & Anr.3; iii) K. Jagdish v. Udaya Kumar G.S4.

6. I have heard the submissions made by both the learned Advocates at length and perused the entire record of the case/Petition which runs into 1193 pages with their able assistance. At the outset, I am not inclined to accept the submissions made by Mr. Thorat for the simple reason that his entire argument of fraud, forgery and fabrication is based upon three incidents of investigation carried out after lodging the FIR over the period of 1 year thereafter and that 1 2 3 4