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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 ..... 138 by a company, the company as well as every person who, at the time when the offence was committed, was in charge of and was responsible to the company for the conduct of the business shall be deemed to be guilty of the offence - In the instant case specific 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. The Hon ble Supreme Court in the matter of S. P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan [ 2022 (9) TMI 846 - SUPREME COURT ] 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 requirement of Section 141 of the NI Act. The high court in that case held that merely by reciting the words used under Section 141 of the NI Act in the complaint, no vicarious liability can be fastened on the partners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OnLine SC 579. 3. I have heard the learned counsel appearing on behalf of the petitioners and perused the record. 4. The petitioners are arrayed as respondents in the compliant as accused Nos.15 and 16, respectively. A perusal of complaint indicates that the complainant in paragraph No.2, thereof, had stated that the accused No.1 is a partnership firm and accused Nos.2 to 16 are its partners. The averments made in the complaint further goes on to state that the accused approached the complainant inter alia representing that they are partners and carrying out business of sale of IMFL, under the name and style of M/s Trimurti 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. Paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he NI Act on the ground of non-fulfillment of the requirement of Section 141 of the NI Act. The high court in that case held that merely by reciting the words used under Section 141 of the NI Act in the complaint, no vicarious liability can be fastened on the partners of the firm. 8. The Hon ble Supreme Court in paragraph No.47 summarized its conclusion which reads as under:- 47. Our final conclusions may be summarised as under: a.) The primary responsibility of the complainant is to make specific averments in the 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 partner of the firm was aware about each and every transaction. On the other hand, the first proviso to subsection (1) of Section 141 of the Act clearly lays down that if the accused is able to prove to the satisfaction of the Court that the offence was committed without his/her knowledge or he/she had exercised due diligence to prevent the commission of such offence, he/she will not be liable of punishment. b.) The complainant is supposed to know only generally as to who were in charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing him/her stand the trial would be an abuse of process of Court. Finally, the Hon ble Supreme Court came to the conclusion that the primary responsibility of the complainant is only to make specific averments in the 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 attracted only on those, who at the time of commission of the offence, were in charge or responsible for the conduct of the business of the firm. But vicarious criminal liability can be incurred against the partners of a firm when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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