9911796707
TMI Blog2022 (4) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... e Instruments Act alleging that on 20.01.2015, the first accused, which is a partnership firm, borrowed a sum of Rs. 10,00,000/- as loan. Totally five persons are partners in the first accused firm and in order to repay the said loan, they issued cheques on behalf of the firm. Two cheques were presented for collection and both were returned dishonoured with an endorsement 'present in proper zone'. After causing statutory notice, the respondent initiated proceedings under Section 138 of the Negotiable Instruments Act. 3.There are totally six accused, in which the petitioners are arraigned as Accused Nos. 5 and 6. 4.The learned counsel appearing for the petitioners would submit that the petitioners were already quitted from the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an accused) is in charge of and responsible to the Company for the conduct of business of the Company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner the accused was in charge of or was responsible to the Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes especially where such statutes create vicarious liability. 10. To fasten vicarious liability under Section 141 of the Act on a person, the law is well settled by this Court in a catena of cases that the complainant should specifically show as to how and in what manner the accused was responsible. Simply because a person is a Director of defaulter Company, do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings in exercise of its jurisdiction under Section 482 of Cr.P.C." 6.The learned counsel appearing for the respondent would submit that all the partners are family members. The first accused is a firm and A.2 to A.6 are partners of the first accused firm which is a registered partnership firm in the name and style of 'Sun Coir Mat'. The second accused is the Managing partner with a mandate and authority of other accused herein to deal with the every day management and financial committee. A3 is the mother of A.2, A.4 is the wife of A.2, A.5 is the mother of A.4 as well as mother-in-law of A.2 and A.6 is the brother of A.4 and brother-in-law of A.2. All the accused persons are directly engaged in the day to day activities of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the company, but if the concerned Director is incharge of and is responsible to the company for its conduct of business, he can be held to be guilty of the offence under Section 138 of the Act. 8.He also relied upon the Judgment of the Honourable Supreme Court of India in S.M.S.Phamaceuticals Limited Vs. Netta Bhallen reported in (2005) 8 SCC 89, wherein the Honourable Supreme Court of India has held as follows:- "18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay the same, they issued two cheques dated 15.07.2017 and 01.08.2017. Both the cheques were presented for collection and both were returned dishonoured for the reason that 'present in proper zone'. 11.The specific stand taken by the petitioners is that they were not the partners of the firm even at the time of borrowal of loan and at the time of issuance of cheques. Therefore, they are not liable to be punished for the offence under Section 138 of the Negotiable Instruments Act, since no evidence is made out against them. 12.On a perusal of the document produced by the petitioners namely Form A issued by the Register of Firms with regard to first accused partnership firm by name 'Sun Coir Mat' consisting of five partners, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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