SUNIL MISHRA AND ORSversusSTATE OF MAHARASHTRA

                                                                  WP.245.2025.doc

Ajay

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL WRIT PETITION NO. 245 OF 2025

       Sunil Mishra and Ors.                              .. Petitioners
            Versus
       The State of Maharshtra and Anr.                   .. Respondents

                               ....................
        Mr. Pritish Sabharwal i/b Ms. Keral Mehta, Advocates for
         Petitioners.
        Mr. Sachin Thorat a/w Mr. Dhananjay Bhosale, for Respondent No.
         2.
        Ms. Sangeeta E. Phal, APP for State.
                                    ......…...........

                                   CORAM : MILIND N. JADHAV, J.
                                   DATE         : AUGUST 18, 2026.

       P.C.:

       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

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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


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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



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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



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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



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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



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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



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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

2023.


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



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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

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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



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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    1992 AIR 604
2    (1999) 8 SCC 686
3    (2021) 1 SCC 142
4    (2020) 14 SCC 552

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cannot be countenanced as a ground to sustain the FIR in view of

conduct of the private Complainant company.


7.        In the first instance if the FIR is seen, it is crystal clear that

both parties enjoyed a very healthy business relationship from 2021

onwards. Both parties indulged into crores of rupees of transactions for

shipment and transportation of goods imported by the Complainant

company. It is seen that the delay occurring due to non receipt of

TELEX    BoL   regarding    the    3   contentious    invoices   and     the

goods/containers being detained at the port of shipment is the real

dispute in the present case. Who is responsible for the same is the

question to be answered? According to Complainant company since it

was effecting lumpsum payment to RKCL and had a healthy business

relationship, it ought to have paid the charges for the shipment and

should not have caused the delay and detention charges; whereas

according to RKCL, the Complainant was already in debt and regarding

the 3 contentious invoices the delay occurred due to non-receipt of

TELEX BoL which was the responsibility of the Complainant company

to procure.


8.        Once that is the position, it is required to be adjudicated on

evidence. Therefore, private Complainant company filed Commercial

Suit in the Delhi High Court in Jan 2023. It initiated 12A pre-

institutional mediation proceedings. Those proceedings failed and the



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Commercial Suit is pending. The entire material rather documentary

evidence was available at the time of filing of the said Suit. In the Suit

plaint there is not a single allegation/ averment of any fraud, forgery

or fabrication of the invoices.


9.        The issue and lis of fraud is raised primarily on the basis of

payments effected in advance and whether delay has occurred and

who is responsible for the delay? Therefore, filing of the FIR in the

aforesaid background in December 2023 is nothing but a sheer abuse

of the due process of law and a clear pressure tactic adopted by raising

a bogey of forged and fabricated contentious invoices by the

Complainant. The complaint is filed u.\s 420 and 406 only. Reading of

the FIR appended at page no. 97 prima facie shows that the lis is

between two companies namely Private Complainant company and

RKCL Private Limited which is clearly named therein. While arguing

Mr. Thorat has also roped in a sister concern company of the

Complainant and attempted to argue that the liabilities of both of them

are interpolated as RKCL was effectively giving service to both

companies. However, in the FIR there is no such case made out or

pleaded whatsoever.


10.       The entire FIR proceeds is on basis of payments made and

received between the parties qua several invoices since 2021 and the

amounts exchanged between them. The FIR is specific to the 12



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containers detained under the 3 invoices which are in dispute due to

the delay and detention charges. Prima facie there is no element of

fraud and fabrication, which is not even alleged in the FIR. Therefore,

the Petition deserves to succeed. I am inclined to accept the

submissions made by Mr. Sabharwal and reject each and every

submission made by Mr. Thorat. Mr Thorat’s submissions rather do not

inspire any confidence of the Court.


11.       Mr. Thorat has placed reliance on the letter dated

11.11.2024 appended at Page No. 824, which is an opinion given by a

police officer as a strong circumstance to allege fraud. This opinion

relied upon by Complainant cannot be countenanced at all. I am of the

opinion that FIR is based on alleged violation of the agreed contractual

arrangement between the parties arising out of the invoices raised and

payments made and exchanged between them. All ledger accounts and

material is placed on record. Prima facie FIR does not even make out

any case of cheating or criminal breach of trust. It is filed 11 months

after the filing of the Commercial Suit and failure of Mediation

proceedings only as an after thought to pressurise the Petitioners’

company RKCL by giving a criminal color to a purely civil dispute.


12.        In view of my aforesaid observations and findings, Petition

stands allowed in terms of prayer clause (b) which reads thus:

         “(b) This Hon’ble Court be pleased to issue a writ of
         mandamus of certiorari or any other appropriate,

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                        writ/direction/order in the nature of writ of mandamus or
                        certiorari under Article 226 of the Constitution of India,
                        1950 and also u/S. 528 of the Bhartiya Nagarik Suraksha
                        Sanhita, 2023, thereby quash and set aside the F.I.R.,
                        chargesheet and proceedings bearing R.C.C. No. 2587 of
                        2025 pending before 8th Joint Civil Judge J.O. and JMFC,
                        Pune arising out of FIR bearing C.R. No. 367 of 2023 dated
                        05.12.2023 u/s. 406, 409, 420, 120-B r/w 34 of Indian
                        Penal Code, 1860 registered at Dattawadi Police Station,
                        Pune.”



       13.                Petition is allowed and disposed.




                                                            [ MILIND N. JADHAV, J. ]

Ajay             Digitally signed
                 by RAVINDRA
       RAVINDRA MOHAN
       MOHAN    AMBERKAR
       AMBERKAR Date:
                 2026.08.18
                 11:30:17 +0530




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