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TMI Blog2008 (2) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... 61 and 679 of 2004 moves these respective petitions seeking quashment of the said criminal proceedings. 2. The first respondent is the complainant in C.C.Nos.504, 461 and 679 of 2004. It is alleged that the first accused is a registered Partnership Firm consisting of accused 2 to 4 as its partners. It carried on business in fertilizers, chemicals, etc. Accused 2 to 4 are in charge of and responsible for the conduct of the day to day affairs of the first accused firm. For the outstanding liability, the subject cheques bearing Nos.595350 dated 1.12.2003 for a sum of ₹ 9,05,020/=, 599788 dated 26.12.2003 for a sum of ₹ 2,25,991/= and 599789 dated 31.12.2003 for a sum of ₹ 15,47,102/= were issued by the first accused partne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no specific allegation attributed to the petitioner in the complaint. Never was she in charge of and responsible for the conduct of the business of the Partnership Firm. Therefore, the petitioner submits that the criminal proceedings under section 138 read with 142 of the Negotiable Instruments Act initiated as against her will have to be quashed. 4. The complainant/first respondent has taken a stand that the complainant was not aware of the retirement of the petitioner from the Partnership Firm. No publication in the Newspapers or in the gazette was made as mandated under section 72 of the Partnership Act. The complainant seriously disputes the claim of the petitioner that she had already retired from the Partnership Firm. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip Act. He would further submit that sufficient averments have been made in the complaint to show that the petitioner was also at the helms of the Partnership Firm. Therefore, the disputed points will have to be raised only during the course of trial of the case, he further submits. 7. The petitioner has produced the deed of reconstitution of the Partnership Firm dated 1.4.2001. It is found that the said deed of reconstitution was not a registered one. Therefore, such a document cannot be given much credence while exercising the power under section 482 of the Code of Criminal Procedure. Only the Trial Court will have to go into the question whether there was such an unregistered deed of reconstitution of the firm executed by and between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e partners would continue to be liable to the third parties who had not been put on public notice about the dissolution of the firm and retirement of the partner from the Partnership Firm so far as the activity of one of the partners in the Partnership Firm is concerned. 9. Section 72 of the said Act reads as follows:- Mode of giving public notice-- A public notice under this Act is given -- (a) Where it relates to the retirement or expulsion of a partner from a registered firm, or to the dissolution of a registered firm, or to the election to become or not to become a partner in a registered firm by a person attaining majority who was admitted as a minor to the benefits of partnership, by notice to the Registrar of Firms under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who allegedly retired from the Partnership Firm on the basis of the unregistered deed of reconstitution, has not chosen to give any public notice as mandated under section 72 of the Partnership Act, 1932 to shirk her liability as contemplated under section 45 of the said Act. Therefore, even assuming for the sake of argument that the fourth accused had already left the Partnership Firm, she is liable for the acts of the reconstituted Partnership Firm as her retirement was not published in terms of section 72(b) of the said Act. 12. Now, the court will have to see whether there is sufficient averment as against the petitioner herein to prosecute her under section 138 of the Negotiable Instruments Act. It has been averred in the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are incharge and responsible for the conduct of the business of the Company. The description should be clear. It is true that precise words from the provisions of the Act need not be reproduced and the Court can always come to a conclusion in facts of each case. But still in the absence of any averment or specific evidence the net result would be that complaint would not be entertainable. In the aforesaid judgment, the Honourable Supreme Court has ruled that the simple averment that the accused Directors were responsible for carrying on the business of the Company and the liability of the accused persons jointly and severally is not sufficient to hold that they are vicariously liable for the liability of the Company. 15. The question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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