The main legal point established in the judgment is the requirement of specific allegations in the complaint regarding the part played by the accused in the transaction in question and the need for clear and unambiguous allegations showing that the accused was in charge of and responsible for the conduct of the business of the firm.

JUDGMENT

Rohit B. Deo, J. - Heard Mrs. R.R Jog, the learned counsel for the applicant and Mr. R.R Goenka, counsel for respondent 1 and Mr. M.K. Pathan, the learned APP for respondent 2.

2. The applicant, who is arraigned as accused 5 in Summary Criminal Case 5363/2017, which is instituted by respondent 1 under section 138 of the Negotiable Instruments Act, 1881 ("Act" for short) approached the learned Sessions Judge under section 397 of the Code of Criminal Procedure, 1973 ("Code" for short) in Criminal Revision 99 of 2018, challenging the order dated 4.12.2018, rendered by the Judicial Magistrate First Class, (13th Court), Akola, of issuance of process.

3. The learned Additional Sessions Judge, dismissed the revision and the applicant, who shall be referred as the accused hereinafter, is invoking inherent power under section 482 of the Code and the extraordinary jurisdiction under section 227 of the Constitution of India.

4. The submission of the learned counsel Mrs. R.P. Jog rests on the premise that it is incontrovertible that the accused was not in charge of the affairs of the firm or responsible to the firm for the day to day conduct of the business, and therefore, the vicarious principle underlying the provisions of section 141 of the Act, do not come into play. The edifice of the submission that the accused was not in charge of the affairs of the firm is constructed on a document dated9.1.2013 which purports to be a partnership deed incorporating a recital that the accused shall only be a working partner. Before I advert to the factual matrix, it would be apposite to note the submission of the learned counsel Mr. R.E Goenka, who appears on behalf of the respondent 1, who shall be referred to as the complainant, hereinafter. Mr. R.E Goenka submits that the complaint specifically asserts that the accused was in charge of the affairs of the firm and indeed the averments in the complaint travel a step ahead, in the sense, that the averment further is that the accused is equally responsible for the offence committed by the firm since the offence is committed with his consent and /or connivance. Mr. R.E Goenka would emphasize the statutory scheme to submit, that even a person, who is not in charge of the affairs of the firm can be roped in as an accused, if the offence is committed by the firm with his consent or connivance.

5. While issuing notice vide order dated 5.4.2019, I noted the submission of the learned counsel Mr. A.C. Dharmadhikari that the partnership deed referred to supra excludes the applicability of the doctrine of vicarious liability. I issued notice for the limited purpose of ascertaining whether the partnership deed can be considered, in the factual matrix, as an incontrovertible material.

6. Adverting to the averments in the complaint, paragraphs 1, 2 and 7 read thus:

"1. The complainant is permanent resident of Akola. That the accused no. 1 is a partnership firm and accused no. 2 and 5 are its partners. That the accused no. 2 to 5 are looking after the day to day affairs of the business of the accused no. 1 firm. That the accused no. 2 to 5 were in charge of and were responsible to the accused no. 1 firm for he conduct of the business affairs of the firm as well as the firm, when the offence was committed. That the accused no. 2 to5 are having complete knowledge and information about all the business transactions of the accused no. 1 firm. That the accused no. 2 to 5 are jointly and severally responsible and liable for all the affairs and transactions of the accused no. 1 firm. That all the accused no. 2 to 5 were doing the business under the name of the accused no. 1 and they used to attend the customers. That all the accused used to look after the banking affairs of the accused no. 1 firm. That accused no. 2 to 5 were sitting at the business place of the accused no. 1 firm. The accused no. 2 to 5 were sitting at the business place of the accused no. 1 firm. The accused no. 2 to 5 were also going to bank to loo