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TMI Blog2020 (11) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... d. In this context, it is to be noted that it is not the case of the petitioners that the notice so issued is not properly or correctly addressed - the grounds taken by the petitioner has got no legs to stand. The notice is deemed to have been served upon the petitioner. Another ground taken by the petitioners is that the petitioner No.3 is a sleeping partner and has got nothing to do with the day to day affairs of the business and merely putting the words in the complaint that she was incharge of the day to day activity is not sufficient to take cognizance. Section 141 of the Negotiable Instruments Act does not make all the persons and directors liable for the offence. Criminal liability has been fastened on those, who at the time of commission of offence, were in charge of, and were responsible to the firm for the conduct of the business of the firm. There may be cases where the partners are sleeping partners or directors, who are not required to take part in the business, they may be ladies and those, who know nothing about the business. The accused No.2 and 3 are directors of the company, who are responsible for and looking after day to day affairs of the business - the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint cases were instituted. All the cases arise out of proceeding under Section 138 of the Negotiable Instruments Act. Since several cheques were issued by the petitioner company to the opposite party No.2, and as those cheques got dishonoured, several cases under Section 138 of the Negotiable Instruments Act were filed by the opposite party No.2 against the petitioners. Dishonour of each cheque gave rise to a separate proceeding under Section 138 of the Negotiable Instruments Act. The petitioners herein have challenged the order taking cognizance and issuing summons, passed in all those cases separately, which are before this Court. The details of orders challenged in these criminal miscellaneous petitions are as under: - Order Under challenge Cr. M.P. No. Date Complaint Case 2025 of 2020 16.08.2018 2276 of 2018 2026 of 2020 29.08.2018 2274 of 2018 2046 of 2020 13.09.2018 2272 of 2018 2047 of 2020 22.09.2018 2275 of 2018 2048 of 2020 07.09.2018 2270 of 2018 2058 of 2020 16.08.2018 2271 of 2018 2059 of 2020 16.08.2018 2279 of 2018 2029 of 2020 16.08.2018 2289 of 2018 2051 of 2020 06.09.2018 2277 of 2018 2. The grounds taken by the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Company" is not sufficient. As per him, petitioner No.3 is a sleeping partner, being the wife of petitioner No.2, and has got no role in the Company, whose affair is being looked after by the petitioner No.2. In support of his submission, learned senior counsel for the petitioners relied upon the decision of the Hon'ble Supreme Court reported in the case of Monaben Ketanbhai Shah & Another versus State of Gujarat & Others reported in (2004) 7 SCC 15. As per the petitioners, in view of the aforesaid facts, cognizance could not have been taken and summons should not have been issued against the petitioners. In support of his contention, he relies upon the decisions of the Hon'ble Supreme Court in the case of GHCL Employees Stock Option Trust versus India Infoline Limited reported in (2013) 4 SCC 505. He further submits that there is no specific allegation against the petitioners No.2 and 3 to issue summons against them. He submits that the ingredients of Section 190 and 204 of the Code of Criminal Procedure have not been followed in proper manner by the Court below while taking cognizance and issuing summons. These are the only points raised during argument. 4. To cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the dishonourned cheques are not on record. 7. The main contention raised by the petitioner is that the complainant in his complaint petition, has not stated as to when notices under Section 138 of the Negotiable Instruments Act was served upon the petitioners. As per him, since the date of receipt of notice has not been mentioned the Court could not have presumed that the notices have been served, thus, rendering the order taking cognizance as bad. When I go through the entire pleadings of these cases, I find that there is no pleading to the effect that the petitioners have not received the notices. In absence of such pleadings, it has to be seen as to whether notice can be deemed to have been served or not and whether the deeming provision can be applied in this case. 8. In this connection, Section 27 of the General Clauses Act is of great relevance. Section 27 of the General Clauses Act reads as follows: - "27. Meaning of service by post - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court, I find that the grounds taken by the petitioner has got no legs to stand. The notice is deemed to have been served upon the petitioner. 11. Another ground taken by the petitioners is that the petitioner No.3 is a sleeping partner and has got nothing to do with the day to day affairs of the business and merely putting the words in the complaint that she was incharge of the day to day activity is not sufficient to take cognizance. Section 141 of the Negotiable Instruments Act does not make all the persons and directors liable for the offence. Criminal liability has been fastened on those, who at the time of commission of offence, were in charge of, and were responsible to the firm for the conduct of the business of the firm. There may be cases where the partners are sleeping partners or directors, who are not required to take part in the business, they may be ladies and those, who know nothing about the business. In these circumstances, the Hon'ble Supreme Court in the case of Monaben Ketanbhai Shah & Another versus State of Gujarat & Others reported in (2004) 7 SCC 15 (at para 6) has held that primary responsibility is on the complainant to make necessary avermen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint petitions, I find that in paragraph 3, it has been stated that the accused No.2 and 3 are directors of the company, who are responsible for and looking after day to day affairs of the business. By asserting the aforesaid fact, I am of the opinion that the complainant has discharged their onus in terms of Section 141 of the Negotiable Instruments Act. Now it is the accused, who have to rebut the same by cogent evidence. Before this Court, at this stage, save and except only the oral submission, no impeachable material has been brought on record by the petitioners to suggest that the petitioner No.3 is not responsible and also is not looking after the day to day affairs of the company. In absence of any materials, at this stage, to give a finding in favour of the accused is not proper. The accused needs to prove her contention by cogent evidence before the Court below. Thus, at the stage of cognizance, this fact cannot be looked into. The accused can rebut the same at an appropriate stage. Thus, prima facie, the accused No.3, in view of the statement made in paragraph 3 of the complaint petition, is responsible for and can be said to be looking after day to day affairs ..... 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