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TMI Blog2006 (7) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... chalpur. 3. Non-applicant No. 1 (hereinafter referred to as the Complainant ) is a company duly registered under the Indian Companies Act, 1956, It is engaged in the business of construction. Its registered office is at Achalpur Camp, District -Amravati. 4. Applicant No. 1 is a partnership firm which is also engaged in the business of construction. It has its office at Nagpur. Applicant Nos. 2 to 4 are the partners of applicant No. 1. 5. The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the applicants alleging therein that the complaint provided plant and machinery on rental basis to the applicants. Towards the payment of rental amount, applicant No. 2 (Girish s/o Dharampal J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 28-2-2006 the Additional Sessions Judge, Achalpur dismissed revision application. The applicants have challenged the dismissal of the revision application and have prayed for dismissal of the complaint. 7. The applicants have challenged the proceedings mainly on the ground that the complainant has not stated about the role played by the applicants in the alleged transaction. In fact, no role has been attributed to any of the applicants in the said complaint. In the absence of such averment either in the complaint or in the verification, no offence under Section 138 of the Negotiable Instruments Act is made out and the proceedings initiated against the applicants are liable to be quashed and set aside. 8. I have heard M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant and in discharge of preexisting debt and liabilities . The learned Counsel for the applicants vehemently submitted that it is nowhere averred in the complaint that accused Nos. 2, 3 and 4 were in charge of and were responsible to the firm for the conduct of the business of the firm. In the absence of such an averment it cannot be said that they are guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. In support of his submissions, the learned Counsel for the applicants placed his reliance on the following cases: (i) In K.P.G. Nair v. Jindal Menthol India Ltd. (2001) 10 SCC 218 , it is held that: In view of Section 141 a person other than the company can be proceeded against under those pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the part of the partner concerned. (iii) In Monaben Ketanbhai Shah and Anr. v. State of Gujarat and Ors. 2004 CriLJ 4249 it is held that: Section 141 does not make all partners liable for the offence. Criminal liability has been fastened on those who, at the time of commission of offence, was in-charge of and was responsible to firm for conduct of business of firm. These may be sleeping partners. Primary responsibility is on complainant to make necessary averments in complaint so as to make accused vicariously liable. For fastening criminal liability, there is no presumption that every partner knows about the transaction. The obligation of appellants to prove that at the time the offence was committed they were not in-charge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000 (5) BomCR 345 (ii) S.V. Muzumdar and Ors. v. Gujarat State Fertilizer Co. Ltd. and Anr. 2005 CriLJ 2566 (SC). 11. I have carefully considered the rival submissions. I have also gone through the case law cited at the bar. It may be noted that in order to fasten vicarious liability against the partners of the firm, there must be clear, specific and unambiguous allegations made in the complaint. Every partner of the firm cannot automatically be roped in. The complainant can proceed only against such persons who at the time the offence was committed by the firm, were in-charge of and were responsible to the firm for the conduct of its business. Such persons must be in over all control of the day-to-day business of the firm. A complain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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