1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 781 OF 2009 Vinoskumar Ramchandran Valluvar ..Petitioner versus The State of Maharashtra & Ors. ..Respondents Mr. Abhay Ostwal with Mr. Ashish Gaikwad for Petitioner. Mrs. R. V. Newton – APP for State. Mr. Mahesh Jethmalani – Sr. Advocate with Mr. Pranav Badheka and Mr. Rishi Bhuta for Respondent No. 2. CORAM : S. A. BOBDE, J. DATED : 1ST OCTOBER, 2009. P.C. : 1. The petitioner is the Managing Director of the respondent No.3 - Flindtholt Shipping Lines (India) Pvt. Ltd. Though initially the petitioner challenged the FIR he has subsequently amended the petition to challenge the charge sheet and the process issued thereon. 2. The petitioner is an accused No.2 in a complaint filed by the respondent No. 2 Essar Logistics Ltd., against him and the other respondents. The respondent No.2 has filed the complaint under Section 2 406, 420 read with 34 of the Indian Penal Code against the accused in respect of an amount allegedly illegally retained by the respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd. and thereafter illegally transferred to the personal account of the petitioner i.e. Vinoskumar Ramchandran Valluvar. The transaction gives rise to the complaint as follows:- 3. Respondent No. 2 Essar Logistics Ltd., placed an order for steel from China. Accordingly they engaged the respondent No. 6 – Tianjin Soar International for shipping steel to India. The respondent No. 6 Tianjin Soar International apparently gave a sub contract to the respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd. for shipping the steel to India. The respondent No.3 - Flindtholt Shipping Lines (India) Pvt. Ltd. is said to have engaged one K World Line Co. Ltd. for the actual shipping. However, when the goods arrived in India on 20th October 2008 according to the complainant an amount of USD 784000, admittedly received by the respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd. on 17th October, 2008. As shipping charges were retained by them and not paid to the shipping company i.e. K. World Line Co. Ltd. As a result according to the complainant – respondent No. 2 Essar Logistics Ltd. had to pay the amount twice over to get the goods i.e. Steel released from K World Line Co. Ltd. The respondent No.2 - Essar Logistics Ltd. has therefore filed 3 complaint against the respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd. and others including the petitioner for breach of trust and cheating. It is also an admitted fact that the amount has been transferred to the personal account of the petitioner, who is the Managing Director of the respondent No.3 from the account of the respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd. The learned counsel for the petitioner submitted that no offence is made out in the complaint and now in the charge sheet. The complaint does not reveal the existence of any intention on the part of the respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd. or the petitioner to cheat the complainant. Moreover, according to the learned counsel for the petitioner the respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd. had an independent contract with respondent No. 6 - Tianjin Soar International for transporting the goods. The learned counsel for the petitioner further submitted that there is no offence made out against the respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd. since that company does not have any privity of contract with respondent No. 2 - Essar Logistics Ltd. The complainant did has a privity of contract only with Tianjin Soar International. 4. Having considered the matter there appears to be no merit in the contention on behalf of the petitioner since admittedly the amount has been received by the respondent No.3 - Flindtholt Shipping Lines (India) Pvt. 4 Ltd. from Tianjin Soar International only for the purpose of transporting steel ordered by respondent No. 2 – Essar Logistics Ltd. from China. There is no other reason why the respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd. can be said to have received this amount of USD 784000. The defence of the petitioner appears to be that the respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd. did not transmit the amount to K World Line Co. Ltd. but retained the amount with itself because it received the amount late from Tianjin Soar International and therefore they had no intention to misappropriate or cheat. This defence is a matter of trial. 5. The amount is not only admittedly received by the respondent No. 3 without being forwarded to K World Line Co. Ltd. for the purposes for which it was received. It has also been found apparently in the personal account of the Managing Director i.e. the petitioner for the reasons best known to those concerned. It is also difficult to accept the contention on behalf of the petitioner that the petitioner cannot be guilty of any offence because they had no privity of contract with the respondent No. 2 – Essar Logistics Ltd. Admittedly, steel was transported at the instance of respondent No. 2 – Essar Logistics Ltd. who engaged respondent No. 6 - Tianjin Soar International, who in turn engaged the respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd.. There is no dispute that the 5 respondent No. 3 - Flindtholt Shipping Lines (India) Pvt. Ltd. agreed with Tianjin Soar International for transporting the steel required by the respondent No. 2 Essar Logistics Ltd., the only reason why the amount was received by the respondent No.3 In these circumstances, the question of privity of contract has no significance, at any rate, for quashing the prosecution itself at this stage. 6. Having considered the matter, I am of view that the contentions raised by the petitioner in the present writ petition are by way of a defence and need to be examined at the trial of the case. There is thus no merit in the petition, which is hereby dismissed. (S. A. BOBDE, J.)