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2014 (10) TMI 1056 - HC - Indian LawsDishonor of Cheque - existence of debt and liability or not - prosecution under Section 138 of Negotiable Instruments Act - liability for act of the partners of the firm - vicarious liability or not - HELD THAT:- The settled position of law is that the act of the partners of the firm can well be construed as an act on behalf of all the partners if the circumstances warrants such a conclusion. Also, that the Firm is not presumed, conversely, to be an agent of the individual partner, in the considered opinion of this Court. Every partner is in contemplation of the law the general and accredited agent of the partnership, or as it is some times expressed each partner is praepositus Negotiis Societaties, and may resultantly bind all the other partners by his acts in all matters which are within the ambit and objects of the partnership. As per Section 25 of the Indian Partnership Act, 1932 every partner is liable, jointly with all other partners and also severally for all acts of the Firm done while is a partner. Admittedly, a Firm is not a legal entity. It is only a collective or compendious name for all the partners, as opined by this Court. To put it differently, a Firm does not have any existence away from its partners. Each partner shall be liable as if the 'Debt" of the firm has been incurred on its personal liability - The obligation of the Respondent / Accused that at the time of the offence was committed he was not incharge and was not responsible to the Firm for the conduct of the business of the Firm wold arise only when firstly the Appellant / Complainant make proper and necessary averments in the complaint and establishes that fact. As a matter of fact, the mere writing or filing of an acknowledge of the debt by one partner does not necessarily of itself bind its co-partner unless he had Authority, express or imply to do so. Furthermore, the proof of authority from other partner is quite essential and necessary and cannot be presumed. Also that after dissolution, however, express authority must be proved. A partner will have no imply authority to bind the firm unless it can be shown that giving of guarantees is necessary for carrying on the business of the firm in ordinary fashion. When an Negotiable Instrument is regularly drawn by a partner in a trading Firm in a transaction ancillary to form business another partner is not less liable because his name does not appear on the face of the instrument. Without filing a complaint against the partnership firm, filing a complaint against the Respondent / Accused in his individual capacity is per se not maintainable in the eye of Law - Ordinarily, a complaint based on bald / vague averments can only be construed to be a case of utilising the process of Court in an otiose fashion. Also that, in the instant case, though Ex.P1 Cheque appears in the name of the Respondent / Accused as partner for 'Sri Karpaga Vinayagar Jewellery' yet the principal offender viz., Jewellery partnership firm was not arrayed as the principal Accused along with other Partners / Accused, if any. Only when the 'Sri Karpaga Vinayagar Jewellery' (Partnership Firm) was shown to have committed an offence under Section 138 of Negotiable Instruments Act, 1881, the Respondent / Accused can be roped in as an Accused in the capacity as partner of the said Jewellery Firm and then only he along with other partners, if any, can be liable for the dishonour of Ex.P1 Cheque in issue. The Criminal Appeal is dismissed
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