Vicarious liability under Section 141 of the Negotiable Instruments Act requires specific accusations against each accused, demonstrating their role in managing and conducting the firm's business at the time of the alleged offense.

M. S. A. Siddiqui, J.

( 1 ) THE petitioners Smt. A. Saraswathy Amma and Smt. Sarojini Amma have filed two separate petitions under Section 482 Cr. P. C. for quashing the order dated 15. 11. 1997 passed by the M. M. New Delhi. I propose to dispose of both the petitions by this common order.

( 2 ) M/s. Malabar Cashewnuts and Allied Products is a registered partnership firm of which the present petitioners were partners. The respondent filed a complaint under Section 138 of the Negotiable Instruments Act (for short the Act) against M/s. Malabar Cashewnuts and Allied Products and four others including the petitioners who are shown as partners of the accused firm. The complaint contained the allegations that four cheques were issued on behalf of the accused firm for the debts due to the respondent company and said cheques were dishonoured by the drawee bank on the ground of insufficiency of funds in the account. On 12. 8. 1996, the respondent company issued notices to the accused firm as well as to the petitioners demanding payment of the amounts covered by the cheques but despite service of the notices no amount was paid. Hence the complaint alleged that all the accused persons have committed the offence under Section 138 of the Act. On the complaint being filed, learned M. M. issued process against the accused persons.

( 3 ) AFTER entering appearance, the petitioners filed an application before the learned Magistrate asking him to recall the process. Having failed in their attempt, the petitioners have come up before this Court under Section 482 Cr. P. C.

( 4 ) IT is undisputed that A. Suresh Kumar, who is arraigned as fifth accused in the complaint, is the son of the petitioner Smt. Saraswathy Amma and brother of the accused A. Sasiskant; that the petitioners Smt. Saraswathy Amma and Smt. Sarojaini Amma are sisters. It is also undisputed that the petitioners are partners of the accused firm and they had executed a general power of attorney in favour of the accused No. 5. Learned counsel for the petitioners contended that the complaint against the petitioners is not maintainable as they were not responsible to the accused firm for the conduct of its business. A bare reading of Section 141 of the Act would show that three categories of persons have been brought within the purview of the penal liability through the legal fiction envisaged therein. They are: (1) the company or the firm which committed the offence, (2) every one who was in charge of and was responsible for the business of the company or the firm, (3) any other person who is a direction or a manger or a Secretary or officer of the company, with whose connivance the company or the firm has committed the offence. In the instant case, the petitioners have been arraigned as accused on the allegations that they were in charge and were responsible for the business of the accused firm. It has to be borne in mind that the person in charge and responsible to a partnership for the conduct of its business need not be partner of such firm. He can be a managing partner or a manager or an employee of a partnership firm. What is required by the provisions of Section 141 of the Act is that he should be authorised to be incharge for the conduct of the business of the firm. In other words, what is required for holding a person vicariously liable for the offence committed by a company or a firm is the actual role played by such person in the management and conduct of the business of the company or the firm, as the case may be. Simply because a person is a director of the company or a partner of a firm, it does not necessarily mean that he fulfils both the above requirements so as to make him vicariously liable. There must be specific accusation against each of the persons arraigned as accused that such person was incharge of and responsible for the conduct of the business of the company or the firm at the relevant time when the alleged offence was committed by the company or the firm. T

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