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2017 (10) TMI 142 - HC - Indian LawsCommission of offence punishable under Section 138 read with Section 141 of NI Act - Whether criminal liability under Section 141 of the N.I.Act cannot be fastened against the Partner or a Director, who at the time of commission of offence was a sleeping Partner or ladies as well as others, who may not be knowing anything about the business of the Firm? - Held that:- It is well settled that there needs to be averment in the complaint that Partner of Firm or Director of the Company was in-charge of and was responsible to the Firm or the Company, as the case may be for conduct of the business of the Firm/Company, as the case may be. The basic requirement under Section 141 of the N.I.Act is to make specific averment in the complaint that accused Partner or Director who was neither signatory to the cheque nor the Managing Director or Managing Partner, as the case may be, at the time of commission of offence was incharge of and responsible to the Firm or Company for conduct of business. It is categorically averred by respondent No.2/original complainant in paragraph Nos.2 and 5 of the compliant that petitioner/accused No.4 was incharge of and was responsible for the affairs of the Partnership Firm in its day to day conduct of business. It is further averred that even cheques were issued with the knowledge and consent of all accused persons, who had taken active part in the transaction. These averments are certainly sufficient to put the writ petitioner/accused for trial. He may, on his part, establish that the offence was committed without his knowledge or that he had exercised due diligence to prevent the commission of offence, but that will be the subject matter of the defence in the trial and such defence may be established by cross-examining the complainant or by adducing defence evidence. He may point out at the trial that he is just a sleeping partner of the firm. At this stage, what is required to be considered is whether there is sufficient ground for prosecuting the writ petitioner/accused No.4 and that ground is established by averments made in the complaint. Mere averments in the petition that the writ petitioner/accused No.4 was a sleeping partner having no knowledge of the transaction in question is not sufficient to quash process issued against him. This defence will have to be established during the trial. Writ petitions are devoid of merit and the same are dismissed
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