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TMI Blog2020 (9) TMI 1314X X X X Extracts X X X X X X X X Extracts X X X X ..... the disputed cheque. Merely because the applicant was the partner in the partnership-firm is not sufficient to make him liable for offence u/s 141 of the N.I. Act, particularly when no specific role is attributed to the applicant in the complaint. The purpose of Section 141 of the NI Act appears to be that a person who merely appears to be a director of a company or partner of a partnership firm, cannot be fastened with criminal liability for an offence under section 138 of the NI Act unless it is shown that he was involved in day-today affairs of the company/partnership firm and was responsible to the company/partnership firm. So far as the issuance of process order is concerned, it is not a well reasoned order and no prima facie case is made out by the complainant against the present applicant and therefore it needs to be quashed and set aside. There are no specific and sufficient allegations against the applicant that he was looking after and responsible for day-to-day affairs of the firm. The allegations made in the complaint even if are taken at their face value and accepted in their entirety do not prima facie constitute any offence against the present applicant i.e. accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o also the partnership-deed executed between the applicant and other accused shows that the accused was merely a sleeping partner and it no way shows that he was a working partner. Furthermore, the said partnership-deed was in respect of the business in manufacturing of oil, oil-cake etc. and also treating of oil, oil-cakes, oil seeds, grains and allied commodities whereas the present transaction as reflected in the complaint, indicates that the transaction was in respect of accepting the deposit made by the complainant and providing interest over the said amount by accused no. 5 as the cheque was signed by accused no. 5. She further invited my attention to various clauses in the partnership-deed showing that the applicant was not a working partner and the present applicant was not responsible for the day-to day affairs of the firm. She submitted that no role of the applicant has been averred in the complaint and in the absence of specific averment as to what role is attributed and played by the applicant/accused, particularly when he has not signed the cheque, the complaint itself is not maintainable as it does not attract section 138 r/ws.141 of the NI Act. It is contended that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation 3 to Section 40(b) on the Income-tax Act,1961. Further the total remuneration shall in no case exceed the book profits. …." 7. It is the case of the complainant that he had deposited an amount of R. 2 lakhs vide cheque bearing No. 0007 through a broker from Akola. On receipt of the said amount, the accused acknowledged the receipt by executing a deposit-chit in favour of the complainant on 28th July 2016. The said document reveals that the accused no. 5 agreed to repay the said amount as and when demanded along with interest @Rs. 1.25 paise per cent per annum. Thus, the receipt does not appear to be duly stamped and it does not reveal that it is in respect of the business of the firm, as reflected in clause (3) of the partnership-deed. Clause (3) of the Deed provides as under : "3. BUSINESS OF THE FIRM: The business of the partnership shall be manufacturer of oil, oil-cake etc. and also trading in oil, oil-cake, oil seeds grains and their products and allied commodities and same be extended to any other trade or industry as mutually agreed among the parties." 8. The aforesaid clause does not indicate the business of accepting the amount and return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n transaction between the complainant and the partnership firm. 11. Significantly, there is no document, such as, any mutual agreement between the partners to raise such a loan. Thus, clauses (5) and (7) are of no assistance to the case put up by the complainant/respondent no. 1. So far as clause (11) of the partnership deed is concerned, it shows that all partners shall be entitled to manage the business of partnership firm. However, in the instant case, there is no prima facie evidence on record to show that the cheque was issued in respect of the business of the firm; so also it is not the case of the complainant. 12. Mrs. Ritu Jog, learned counsel for the applicant placed reliance on the judgment in the case of Monaben Ketanbhai Shah v. State of Gujarat [2004] 7 SCC 15 to contend that in that case also, there were no specific averments in the complaint with regard to the specific role of the accused. The Hon'ble Apex Court observed in paragraph 6, as under : "6. From the above, it is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm. Learned counsel for the respondent complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of business of the company at the material time when the offence was committed alone shall be deemed to be guilty of the offence. Further it was observed that the requirement of law is that "there must be clear, unambiguous and specific allegations against the persons who are impleaded as accused that they were in charge of and responsible to the company in the conduct of its business in the material time when the offence was committed." The same High Court in V. Sudheer Reddy v. State of Andhra Pradesh and others ((2000 (99) CCV (AP) 107)) held that "the purpose of Section 141 of the Negotiable Instruments Act would appear to be that a person who appears to be merely a director of the company cannot be fastened with criminal liability for an offence under section 138 of the Negotiable Instruments Act unless it is shown that he was involved in the day-to-day affairs of the company and was responsible to the company" ………………… 15. In the same judgment, the Hon'ble Apex Court in paragraph 20 held that it is necessary to specifically aver in a complaint under section 141 that at the time the offence was committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsible for the day-to-day affairs of the firm, to attract Section 141 of the NI Act. The purpose of Section 141 of the NI Act appears to be that a person who merely appears to be a director of a company or partner of a partnership firm, cannot be fastened with criminal liability for an offence under section 138 of the NI Act unless it is shown that he was involved in day-today affairs of the company/partnership firm and was responsible to the company/partnership firm. So far as the issuance of process order is concerned, it is not a well reasoned order and no prima facie case is made out by the complainant against the present applicant and therefore it needs to be quashed and set aside. 19. Considering the facts and circumstances of the case and law laid down by the Hon'ble Supreme Court, I am of the opinion that there are no specific and sufficient allegations against the applicant that he was looking after and responsible for day-to-day affairs of the firm. The allegations made in the complaint even if are taken at their face value and accepted in their entirety do not prima facie constitute any offence against the present applicant i.e. accused no. 2. In that view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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