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TMI Blog2022 (11) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the settled legal position, inasmuch as, the court below has failed to consider that no specific averments have been made with respect to the present petitioners as to how they are responsible for the day-to-day functioning of the partnership firm. While placing reliance on various pleadings and documents, it has been submitted that the present petitioners are not responsible for the day-to-day functioning of the accused firm and, therefore, the order of summoning suffers from legal infirmity. According to her, the cheque in question had been drawn and issued by partners, namely, Basant Bhandari and Rajeev Pratap and was not issued by the petitioners. The ingredients of Section 138 of the Negotiable Instruments Act, 1881 (in short, 't ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urti Associates & Ors. It is also stated that the accused, further represented that the Excise Department, Government of Uttrakhand had issued license in favour of accused No.10, 11, 12, 14, 15 and 16 to deal in the sale of IMFL products in the State of Uttrakhand. It is thus seen that with respect to the present petitioners, specific averments have been made in the complaint not only with respect to the fact that they are partners of the accused firm but with respect to holding of license that was issued by the State of Uttarakhand in their name. Paragraph No.11 of the complaint reiterates the same allegation and it states that the accused are jointly and severely dealing with the complainant from time to time and amongst the accused, two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c averments have been made with respect to the present petitioners which have been considered by the concerned Metropolitan Magistrate. So far as the arguments advanced by the learned counsel appearing on behalf of the petitioners are concerned, the same would not require to be considered at the stage of summoning the petitioners. 7. The Hon'ble Supreme Court in the matter of S. P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan 2022 SCC OnLine SC 1238 in criminal Appeal No.1586/2022 dated 16.09.2022 has dealt with the issue extensively, where, the High Court of Madras in exercise of its power under Section 482 of Cr.P.C allowed the petition and quashed the complaint under Section 138 of the NI Act on the ground of non-fulfillment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectors of the company or the partners of the firm, as the case may be, who have the special knowledge about the role they had played in the company or the partners in a firm to show before the court that at the relevant point of time they were not in charge of the affairs of the company. Advertence to Sections 138 and Section 141 respectively of the NI Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company/partners of a firm to show that they were not liable to be convicted. The existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint so as to make the accused vicariously liable. For fastening the criminal liability there is no legal requirement for the complainant to show that the accused partners of the firm were aware about each and every transaction. The complainant is supposed to know only generally as to who were in charge of the affairs of the company or the firm as the case may be. It has also been stated that on the other elements of an offence under Section 138 of the NI Act, being satisfied, the burden is on the board of directors or on the officers in charge of affairs of the company/partners of the firm to show that they were not liable to be convicted. The final judgment and order would depend on the evidence adduced. Criminal liabilities are at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners is concerned, primarily the same does not relate to the scope of exercise of power under Section 482 of the Cr.P.C. and, therefore, does not have any application at the present stage. Similarly, another decision in the case of Monaben Ketanbhai Shah (supra) is concerned, a perusal of paragraph No.7 thereof would clearly indicates that in the complaint there were no averments against the accused in that case. In the instant case, this court has noted that there are specific allegations not only with respect to the fact that petitioners are the partners of the firm but it is also stated that they were holding the license in their name on behalf of the firm. 11. In view of the aforesaid, this court does not find any substance in Crl. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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