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The petitioner is the original accused. He seeks quashing of criminal case no. 1182/2009(here-in-after referred to as the said complaint ) pending before the learned JMFC, Sanand.

Briefly stated facts are as follows :

2.1 Petitioner is the original accused no.1 in said complaint lodged by respondent no.2 herein. Briefly stated allegations in the complaint are that respondent no.2 is a manufacturer of cotton products. It sells goods mostly through exports. One of the customers of the complainant is one America based company called Mervyns L.L.C.(here-in-after referred to as the purchaser company ). The purchaser company places purchase order with the complainant company. As per the purchase order complainant company entrusts transport of such export consignment to APL Logistics (India) Pvt. Ltd. at Mumbai. It may be noted that the petitioner is Managing Director of said APL Logistics (India) Pvt. Ltd. Such consignment is transported to its destination in USA by APL Logistics (India) Pvt. Ltd. through the vessels of Orient Oversees Container Line (India) Pvt. Ltd. ( OOCL for short) of which original accused no.2 is stated to be the Managing Director. It is stated in the complaint that for such transport work, the complainant pays the charges to the accused. Accused was responsible for safe transport of the goods. Accused had to carry out instructions of the complainant company till the goods could be handed over to the purchaser company. In June-July 2008, purchaser company placed large purchase order with the complaint company details of which are given in the complaint. Complainant company handed over the consignment to the accused which loaded in the ship for transport. At that point of time the complainant company came to know that purchaser company has gone bankrupt. They had also filed for bankruptcy according to American law. Complainant company thereupon instructed the accused not to deliver the goods to the purchaser company. Such instructions were duly received by the accused. In fact they were informed that if such instructions are ignored they would be directly liable for such actions. The accused ignored such instructions though they were duty bound to carry out instructions of the complainant company. Even when the goods were on high sea, such instructions were given despite which goods which were entrusted to the accused, were handed over to the purchaser company. It is thus the allegation of the complainant that accused committed offence punishable under Section 407 read with Sections 34 and 114 of the IPC for the goods which are valued at approximately Rs.94,63,424/-.

Appearing for the petitioner, learned senior counsel Shri Mihir Thakore with Shri Manav Mehta contended that :

1) The date on which the instructions were given by the complainant company, goods were not in custody of APL Logistics (India) Pvt.

Ltd. but were handed over to OOCL.

2) Complaint is filed against the present petitioner no.1 Samarnath who is employee of APL Logistics (India) Pvt. Ltd.. In any case he is not liable for any criminal acts.

3) APL Logistics (India) Pvt. Ltd. was acting as agent of the purchaser. By the complainant company therefore, there was no entrustment of goods to APL Logistics (India) Pvt. Ltd. Offence punishable under Section 407 of IPC is therefore, not made out.

In view of this, present petitioner cannot be held liable for any offence under Section 407 of IPC. Counsel for the complainant feebly contended that petitioner is shown to be the Managing Director of APL Logistics (India) Pvt. Ltd. and was responsible for its day to day functioning. However, in absence of any allegations against the petitioner of his own acts or omission amounting to criminal offence and in absence of any statutory provision creating any vicarious liability, he cannot be hauled up for alleged offence. His position of Managing Director and being responsible for day to day functioning of the company may be relevant for offence such as one punishable under Section 138 of the Negotiable Instruments Act where statutorily vicarious liability is caste on certain persons responsible for functioning of the company. In the present case, question of such vicarious liability does not arise.

Section 47 and 50 of the Sale of Goods Act only give certain civil rights to the APL Logistics (India) Pvt. Ltd. under certain circumstances.

The same however, cannot be ground for creating criminal liability of the APL Logistics (India) Pvt. Ltd. or its employee for offence of breach of trust.

In view of the above discussion, I do not find that even otherwise any offence against the petitioner is disclosed. Section 407 of IPC provides for punishment for offence of criminal breach of trust by a carrier. Term Criminal breach of trust has been defined in section 405 of IPC in following manner :