TMI Blog2020 (11) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the petitioner No.3 is a sleeping partner and has got nothing to do with the day to day affairs of the business and merely putting the words in the complaint that she was incharge of the day to day activity is not sufficient to take cognizance. Section 141 of the Negotiable Instruments Act does not make all the persons and directors liable for the offence. Criminal liability has been fastened on those, who at the time of commission of offence, were in charge of, and were responsible to the firm for the conduct of the business of the firm. There may be cases where the partners are sleeping partners or directors, who are not required to take part in the business, they may be ladies and those, who know nothing about the business. The accused No.2 and 3 are directors of the company, who are responsible for and looking after day to day affairs of the business - the complainant has discharged their onus in terms of Section 141 of the Negotiable Instruments Act. Now it is the accused, who have to rebut the same by cogent evidence. Before this Court, at this stage, save and except only the oral submission, no impeachable material has been brought on record by the petitioners to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were instituted. All the cases arise out of proceeding under Section 138 of the Negotiable Instruments Act. Since several cheques were issued by the petitioner company to the opposite party No.2, and as those cheques got dishonoured, several cases under Section 138 of the Negotiable Instruments Act were filed by the opposite party No.2 against the petitioners. Dishonour of each cheque gave rise to a separate proceeding under Section 138 of the Negotiable Instruments Act. The petitioners herein have challenged the order taking cognizance and issuing summons, passed in all those cases separately, which are before this Court. The details of orders challenged in these criminal miscellaneous petitions are as under: - Order Under challenge Cr. M.P. No. Date Complaint Case 2025 of 2020 16.08.2018 2276 of 2018 2026 of 2020 29.08.2018 2274 of 2018 2046 of 2020 13.09.2018 2272 of 2018 2047 of 2020 22.09.2018 2275 of 2018 2048 of 2020 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. He refers to Annexure 2, which is a show cause-cum-demand notice issued by the revenue authorities, saddling penalty upon the petitioner. He further submits that the Court below, while taking cognizance, has not whispered as to what are the role played by these petitioners for summoning them. He submits that only mentioning that the petitioners No.2 and 3 were responsible for and looking after day to day affairs and business of the Company is not sufficient. As per him, petitioner No.3 is a sleeping partner, being the wife of petitioner No.2, and has got no role in the Company, whose affair is being looked after by the petitioner No.2. In support of his submission, learned senior counsel for the petitioners relied upon the decision of the Hon'ble Supreme Court reported in the case of Monaben Ketanbhai Shah Another versus State of Gujarat Others reported in (2004) 7 SCC 15. As per the petitioners, in view of the aforesaid facts, cognizance could not have been taken and summons should not have been issued against the petitioners. In support of his contention, he relies upon the decisions of the Hon'ble Supreme Court in the case of GHCL Employees Stock Option Trust ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and have gone through the records. 6. A specific question was put by this Court to the counsel for both the sides, as to who are / is the signatory to the dishonoured cheques. Both the parties, after taking instruction from their client and after going through the records, which they had with them, stated that cheques in question were signed by the petitioner No.2 and not by the petitioner No.3. This question was put to the parties as the dishonourned cheques are not on record. 7. The main contention raised by the petitioner is that the complainant in his complaint petition, has not stated as to when notices under Section 138 of the Negotiable Instruments Act was served upon the petitioners. As per him, since the date of receipt of notice has not been mentioned the Court could not have presumed that the notices have been served, thus, rendering the order taking cognizance as bad. When I go through the entire pleadings of these cases, I find that there is no pleading to the effect that the petitioners have not received the notices. In absence of such pleadings, it has to be seen as to whether notice can be deemed to have been served or not and whether the deeming provision can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that the deeming fiction in respect of service of notice is applicable in respect of notice under Section 138 of the Negotiable Instruments Act also if the notice is properly and correctly addressed. In this context, it is to be noted that it is not the case of the petitioners that the notice so issued is not properly or correctly addressed. Considering the judgment of the Hon'ble Supreme Court, I find that the grounds taken by the petitioner has got no legs to stand. The notice is deemed to have been served upon the petitioner. 11. Another ground taken by the petitioners is that the petitioner No.3 is a sleeping partner and has got nothing to do with the day to day affairs of the business and merely putting the words in the complaint that she was incharge of the day to day activity is not sufficient to take cognizance. Section 141 of the Negotiable Instruments Act does not make all the persons and directors liable for the offence. Criminal liability has been fastened on those, who at the time of commission of offence, were in charge of, and were responsible to the firm for the conduct of the business of the firm. There may be cases where the partners are sleeping partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, the Hon'ble Supreme Court in the case of Standard Chartered Bank versus State of Maharashtra Others reported in (2016) 6 SCC 62 has reiterated that it is necessary to specifically aver in the complaint that at the time of offence, accused was in charge of, and responsible for the conduct of the business of the company. 13. Considering the aforesaid judgments, when I go through the complaint petitions, I find that in paragraph 3, it has been stated that the accused No.2 and 3 are directors of the company, who are responsible for and looking after day to day affairs of the business. By asserting the aforesaid fact, I am of the opinion that the complainant has discharged their onus in terms of Section 141 of the Negotiable Instruments Act. Now it is the accused, who have to rebut the same by cogent evidence. Before this Court, at this stage, save and except only the oral submission, no impeachable material has been brought on record by the petitioners to suggest that the petitioner No.3 is not responsible and also is not looking after the day to day affairs of the company. In absence of any materials, at this stage, to give a finding in favour of the accused is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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