IMPORTANT POINT
For prosecution of a partner of firm for offence of dishonour of cheque issued by firm, there must be specific allegations and averments regarding role played by partner in such capacity and a said allegation that he took active part in day to day business affairs of firm.

R. Regupathi, J.—Petitioner herein is the first accused in C.C. No. 777 of 2005 on the file of Judicial Magistrate-I. Erode, for the offence punishable under Section 138 of the Negotiable Instruments Act (in short ‘Act’). Second accused is the husband of the petitioner/first accused.

2. At the foremost, learned counsel for the petitioner submits that in the notice issued to the petitioner subsequent to dishonour of the cheque dated 15.12.2004, she has been wrongly described as the Proprietor of the Firm Techno Associates, consequently, a reply has been sent, clarifying the fact that the petitioner is a sleeping partner and that only her husband viz., second accused, is the Managing Partner of the Firm, however, in spite of such clarification by way of reply to the notice, it has been stated in para No. 2 of the complaint that the petitioner is the Managing Partner of the Firm. It is stated that the petitioner being the wife of the 2nd accused, never actively participated in the business of the firm; that being so, only on imaginary basis and speculation, she has been stated as the Managing Partner of the firm by the complainant. By pointing out that the cheque issued bears the signature of the second accused over the rubber stamp with the description ‘Authorised Signatory’ of Techno Associates; he argues that without even impleading the firm as one of the accused in the case, simply acting on the figment that the petitioner is the Managing Partner of the Firm, proceedings have been initiated for no reason but to harass her. Learned counsel, ascribing the allegation in the complaint viz.

“2. ….. Both are taking active part of day today business affairs and all the personal involvements or Techno Associates. The 1st accused authorised the 2nd accused to operate bank accounts also. …..”,

as bald one, would submit that no other specific allegation has been made in the complaint to attract the ingredients of Sections-138 of the Act so as to proceed against the petitioner. Referring to Section 141 of the Act, he states that unless there are specific allegations regarding commission of the offence with the consent and connivance of a particular person available, mechanically, he/she cannot be added an accused. For claiming the petitioner as the Managing Partner of the firm and to show that in such capacity she authorised the second accused to operate the bank account, no positive material has been furnished in the complaint; hence, the learned counsel pleads that the entire proceedings as against the petitioner may be quashed. To substantiate the points agitated, he relies on a decision of the Supreme Court reported in Katta Sujatha v. Fertilizers and Chemical Travancore Ltd.1 wherein, it has been held as follows:

“4. ….. However, one thing is clear that the appellant was in no way involved in any of the transactions referred to in the complaint and it was not stated that she was in charge of the business and was responsible for the conduct of the business of the firm in terms of section 141 of the Act nor was there any other allegations made against the appellant that she had connived with any other partner in the matter of issue of cheque. …………… This Court explained the meaning by observing that the term “person in charge” must mean that the person should be in overall control of the day-to-day business of the company or firm. The person should (sic may) be a party to the policy being followed by a company and yet not be in charge of the business of the company or may be in charge of but not in overall charge or may be in charge of only some part of the business.

5. In short the partner of a firm is liable to convicted for an offence committed by the firm if he was in charge of and was responsible to the firm for the conduct of the business of the firm or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of the partner concerned.”

3. Per contra, le