Crl. Misc. No. M 17120 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Misc. No. M 17120 of 2008 Date of decision: 30.10.2013 [ENTITY] and another Petitioners Versus M/s [ENTITY] Respondent Coram: Hon'ble Mrs. Justice [ENTITY] -.- Present: Mr. [ENTITY], Advocate for the petitioner Mr. [ENTITY], Advocate for the respondent -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? [ENTITY], J.
The petitioners pray for quashing of criminal complaint dated 03.01.2001 titled 'M/s [ENTITY] v. Shri Subhash Sehgal and others' (Annexure P1), filed under [SECTION] of the [ACT] (in short, 'the 1881 Act'), pending in the Court of Judicial Magistrate Ist Class, Chandigarh and summoning order dated 09.04.2001 (Annexure P2).
Counsel for the petitioners contends that in the complaint, there are no allegations that the petitioners, being the partners of M/s Kurukshetra Traders, are responsible to the accused firm for the conduct of its business to make them vicariously liable for dishonour of cheque in question issued by [ENTITY] on behalf of the partnership firm. It is further submitted that as per the partnership deed (Annexure P3), [ENTITY] is responsible for conducting the affairs of the firm as agreed in view clause xiii of the partnership deed.
The complainant (respondent herein) was represented by Mr. [ENTITY], Advocate, who later did not appear, but apprised the Court that as per his information M/s [ENTITY], is no more in existence. However, the respondent did not file any reply to controvert the allegations raised by the petitioners.
I have heard counsel for the petitioner and perused the records. A perusal of averments in the complaint would reveal that it does not contain any allegation that the present petitioners were incharge of and responsible to the firm for the conduct of its business to make them vicariously liable for the commission of offence under [SECTION] of the 1881 Act keeping in view the provisions of [SECTION] of the 1881 Act.
In '[PRECEDENT], a similar question in regard to liability of a partner of a firm for offence under [SECTION] of the 1881 Act, was considered and it was held as under:-
"6 The criminal liability has been fastened on those who, at the time of the commission of the offence, were in charge of and were responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint."
In the instant case, there is no such averment in the complaint that the present petitioners are looking after the day-to-day affairs of the accused firm much less were incharge of and responsible to the firm for the conduct of its business. The only allegation against the partners is that [ENTITY] accused furnished a duly notarized copy of the partnership deed of M/s Kurukshetra Traders, of which all the accused have been shown as partners as well as inter se related to each other. When these averments contained in the complaint are examined in the light of the judgments passed by Hon'ble the Supreme Court of India in '[PRECEDENT] as well as [PRECEDENT]'s case (supra), I am of the considered opinion that the petitioners cannot be held vicariously liable for dishonour of cheque in dispute, issued by [ENTITY] on behalf of M/s Kurukshetra Traders, a partnership firm.
In the result, the petition is allowed and complaint dated 03.01.2001 titled 'M/s [ENTITY] v. Shri Subhash Sehgal and others' (Annexure P1) filed under [SECTION] of the 1881 Act, pending in the Court of Judicial Magistrate Ist Class, Chandigarh and summoning order dated 09.04.2001 (Annexure P2) qua the petitioners are ordered to be quashed.
([ENTITY]) Judge 30.10.2013 mohan