9911796707
TMI Blog2011 (4) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... ed cheques and all partners are looking after day to day affairs of the accused firm and thus the liability as raised by them is joint and several - Held that:- there is no legal requirement for the complainant to show that the accused partner of the firm was aware about each and every transaction. On the other hand, proviso to section 141 of the Act clearly lays down that if the accused is able to prove to the satisfaction of the Court that the offence was committed without his knowledge or he had exercised due diligence to prevent the commission of such offence, he will not be liable of punishment. - But vicarious criminal liability can be inferred against the partners of a firm when it is specifically averred in the complaint about the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chief Judicial Magistrate, Gautam Budh Nagar, Noida (U.P.) on 23-7-2004, under sections 138 and 141 of the Act. It was alleged in the said complaint that cheques bearing Nos. 382874 and 382875 dated 31-3-2004 for ₹ 15,00,000 each drawn on Union Bank of India, Vijaywada Main Branch were issued by the accused persons. The said cheques, when presented to their banker, were returned as unpaid vide Cheques Return Advices dated 29-5-2004, with the remarks, 'Payment stopped by Drawer'. In the said complaint, the following specific plea is raised by the Appellant: "That the Accused No. 1 is a partnership firm and Accused Nos. 2 to 7 are partners thereof and Accused No. 3 is signatory of the impugned cheques and all partners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lakshmi agencies much prior to the execution of the Memorandum of Understanding dated 31-3-2004 and also the issuance of the dishonoured cheques on 31-3-2004." The learned Single Judge of the High Court after perusal of the record and hearing the parties found it fit and proper to discharge the Respondents. Hence this Appeal. 7. We have, accordingly, heard learned counsel, Mr. Ajay Dahiya for Appellant and Mr. G.V.R. Choudary, for Respondents at length and perused the record. 8. At the outset, learned counsel appearing for Appellant contended that in the light of the aforesaid averments having been made categorically in the original complaints, no case was made out for discharge of the Respondents. It was also contended that Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla [2005] 63 SCL 93, is contained in them in the form mentioned in Para 4 hereinabove. 11. Thus, in the light of the aforesaid averments as found by us in the Criminal Complaint, we are of the considered opinion that sufficient averments have been made against the Respondents that they were the partners of the firm, at the relevant point of time and were looking after day to day affairs of the partnership firm. This averment has been specifically mentioned by the Appellant in the complaint even though denied by the Respondents but the burden of proof that at the relevant point of time they were not the partners, lies specifically on them. This onus is required to be discharged b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of commission of the offence, were in charge of and were responsible for the conduct of the business of the firm. But vicarious criminal liability can be inferred against the partners of a firm when it is specifically averred in the complaint about the status of the partners 'qua' the firm. This would make them liable to face the prosecution but it does not lead to automatic conviction. Hence, they are not adversely prejudiced - if they are eventually found to be not guilty, as a necessary consequence thereof would be acquitted. 13. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, in cases like the present, where there are allegations and counter-allegations between the parties regarding the very composition of the firm, the above rule of 'specific averment' must be broadly construed. Indeed, it would be nothing short of a travesty of justice if the Directors of a Company of Partners of a Firm, who, having duped a third-party by producing false documents (like a fake partnership deed) or making false statements (that some others were in charge of the Company/Firm), at a subsequent stage, seek protection from prosecution on the ground that they were not directly indicted in the complaint - such a proposition strikes against one of the very basic tenets of the law of natural justice, which is, that non ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
