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TMI Blog1997 (8) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... hat A-1 is a partnership firm with its office at Vuyyuru, Krishna District. A-2 is the Managing partner and A-2 to A-5 are the partners of the said firm. It is further stated that A-2 to A-5 as partners of the A-1 firm, are incharge and responsible and playing active role in the management and in day to day conduct of business of A-1 firm. It is further alleged that A-1 borrowed ₹ 30,000/-, ₹ 21,000/- and ₹ 30,000/- on 28-11-1988, 7-12-1989 and 28-9-1994 respectively and executed promissory notes promising to pay interest at 30% per annum and issued cheque dt. 25-5-1992 for ₹ 1,50,000/- in favour of the complainant drawn on Indian Bank, Vuyyuru and the same was presented for collection at Andhra Bank, Vijayawada but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments Act to appreciate the rival contentions of both parties and reads as follows : ......... (1) If the person committing and offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge or that he had exercised due diligence to prevent the commission of such offence. (2) Notwithstanding anything c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and shall be proceeded against them. The respondent-complainant specifically alleged that the petitioners 3 to 5 are partners of the firm and are incharge and responsible for day today conduct of the business and playing active role in the management and affairs of the firm. The contention of the petitioner is that the petitioners 3 to 5 are sleeping partners and the 5th petitioner is a woman and it is absurd to contend that she was also looking after the business of the firm, but when there is specific denial with regard to the said allegations of the complaint and it is question of fact whether petitioners 3 to 5 are sleeping partners or responsible for day today conduct of business and can be decided only during the trial of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139 of the N.I. Act that the holder of the cheque received the said cheque of the nature referred to under section 138 of the N.I. Act for the discharge. It is settled principle of law that questions of fact cannot be decided in a proceedings under Section 482, Cr.P.C. 10. The learned counsel for the petitioners further submitted that no notice was issued to the petitioners 3 to 5 as provided under Section 138(b) of the Act and in that view of the matter also the complaint is not maintainable. 11. But the learned counsel for the respondent submitted that the cheque was issued on behalf of the first petitioner firm by the second petitioner and the cheque was dishonoured and notice as contemplated under Section 138(b) of the Act was is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e firm or the company with regard to the issuance and dishonour of the cheque and also demanding the payment of the said amount payable under the cheque and necessarily follows that they are fully aware and must have knowledge of the said aspects and hence, deemed to be guilty of the said offence and liable to be proceeded against and punished accordingly. Therefore, in the aforesaid circumstances, the Legislature in its wisdom has not prescribed the issuance of individual notice to all the partners or the persons who are incharge of the day today conduct of the business of the firm or company, as the case may be, before filing the complaint as provided under section 138 of the Negotiable Instruments Act relating to issue of notice to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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