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TMI Blog2004 (8) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... f the partnership deed later is of no consequence for determining the point in issue. Section 141 does not make all partners liable for the offence. The criminal liability has been fastened on those who, at the time of the commission of the offence, was in-charge of and was responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The obligation of the appellants to prove that at the time the offence was committed they were not in-charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablish that they had no knowledge about the transaction or had exercised due diligence. The High Court, by the impugned judgment, has upheld the order of the Sessions Judge insofar as it concerns the appellants. The order of the Session Judge insofar as original accused No. 5 is concerned, has been reversed by the High Court and that of the Magistrate restored since the High Court came to the conclusion that accused No. 5 was a student up to 1998 studying at Ahmedabad, and thereafter she got married and went to USA and in these circumstances her case stood on different footing. The remaining two sisters are in appeal on grant of special leave. 3. Section 138 of the Act makes dishonour of the cheque an offence punishable with imprisonmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be exercised very sparingly and where, read as a whole, factual foundation for the offence has been laid in the complaint, it should not be quashed. All the same, it is also to be remembered that it is the duty of the Court to discharge the accused if taking everything stated in the complaint as correct and construing the allegations made therein liberally in favour of the complainant, the ingredients of the offence are altogether lacking. The present case falls in this category as would be evident from the facts noticed hereinafter. 5. The High Court in the impugned judgment has held that "on its perusal, it is clear that the respondent No. 2 original complainant has made specific allegations against the accused persons in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint reads thus : "Karta of Himanshu Jayantilal, HUF Himmanshu Jayantilal Thakkar........... .........Complainant. Versus Partners of Sona Fibres (1)Shah Madhumati Harshadraj (2)Harshadrai V. Shah (H.U.F.) (3)Monaben Ketanbhai Shah (4)Sonaben R. Shah (5)Rupaben Harshabhai Shah .........Accused" 6. From the above, it is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm. Learned counsel for the respondents/complainant contended that a copy of the partnership deed was also filed which would show that the appellants were active in the business. No such document was filed with the complaint or made part thereof. The filin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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