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2019 (2) TMI 544 - HC - Indian LawsDishonor of Cheque - section 138 read with section 141 of the Act - vicarious liability on director/partner - Held that:- It is well settled, and reference to the catena of decisions enunciating the position of law is not really necessary, that a director or a partner can not be fastened with vicarious liability unless he was in charge of, and was responsible to the firm for the conduct of the business of the firm. A director or a partner can not be deemed to be liable, and that the director and partners is vicariously liable for the offence committed by the company or firm must be pleaded and proved like any other fact. In the absence of the necessary averment in the complaint, which averments may not necessarily confirm to or mechanically reproduce the language of section 141 of the Act, it would impermissible for the Court to take cognizance of the complaint. The very sine qua non for issuance of process is that the complaint, holistically read and understood, must aver that the directors or partners who are arrayed as accused were responsible to the company or firm for the conduct of the business. It is obvious that the purchase orders would be placed by either the company or firm or on its behalf by a director or officer or other employee. The fact that the invoices placed on record do not refer to the applicantsaccused does not take the case of the applicantsaccused any further. The challenge to the order of issuance of process must fail - the personal presence of the applicants – accused is exempted unless the trial Court, for reasons to be recorded, finds that the personal presence of the applicants – accused is absolutely necessary - Application rejected.
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