In criminal law, mere partnership does not establish vicarious liability; active involvement in day-to-day management must be proven for liability under the Delhi Development Act.

JUDGMENT :

MANOJ KUMAR OHRI, J.

1. The present appeal has been filed against the order/judgement dated 31.03.2006 passed by MM, New Delhi, in Case No. 57/98 registered under Section 14 r/w Section 29(2) of the Delhi Development Act (hereinafter "DD Act"), whereby the Trial Court acquitted Respondent No. 2 and 3 for the said offences. This Court observes that during the pendency of the present appeal, the Respondent No. 3 namely Sangeeta Sethi has passed away on 03.05.2024. In this regard, an affidavit along with a death certificate have been placed on record. Accordingly, the proceedings against the said respondent stand abated.

2. The facts, pithily put, are that on 05.06.1997, the accused persons were found using the premises in question i.e. 138 Raja Garden, Delhi for running a trade store for cosmetics under the name “K.P. Trading Co.” contrary to the permitted purpose i.e., residential thereby leading to initiation of prosecution resulting in filing of complaint/challan under Section 14 r/w Section 29(2) of DD Act.

3. The prosecution examined a total of 2 witnesses to prove its case. CW-2 was a formal witness who proved the constitution of the accused firm namely „K.P. Trading Co.‟. CW-1, on the other hand, was the joint engineer/inspector of DDA who had inspected the firm‟s premises. The respondents in their statement under Section 313 CrPC pleaded not guilty and claimed false implication.

4. Learned counsel for the appellant states that the constitution of the firm clearly indicate that Respondents Nos. 2 and 3 were the partners in the said firm, thereby making them equally liable with the main accused for having committed the offence.

5. Learned counsel for the respondent while opposing defended the impugned judgment and emphasized that the respondents were rightly acquitted in light of the material that came on record. It is argued that the concerned agency i.e. DDA failed to bring on record any substantive material that would lead to an inference of Respondent Nos. 2 and 3 being in charge and responsible for day to day affairs of the firm. Further, the mere mention of their names in the constitution of the firm is not sufficient to bring them within the rigours of section 14 r/w section 29(2) of the DD Act.

6. I have heard the learned counsels for the parties as well as perused the material placed on record.

7. The Trial Court, while referring to the testimony of CW1, recorded that the witness deposed that on the day of the inspection i.e., on 05.06.1997, he met four persons at the spot, however failed to name any of them. The witness further deposed as to meeting Akash Sethi, the main accused at the site. In his cross-examination, the witness admitted that Respondent Nos 2 and 3 were not found at the time of the inspection. Notably, in trial relating to subsequent prosecution initiated against the accused persons, the same witness deposed as CW1. Pertinently, he deposed that except his inspection visit on 15.06.2009, he had not visited the subject premises any time earlier or later. This aspect of the testimony is directly in teeth of his earlier testimony tendered in the prosecution of the 1^st case where he had stated to have visited the subject premises on 05.07.2007.

8. With respect to the question as to whether the Respondent Nos 2 and 3 could be deemed to have played an active role in managing the day to day affairs of the partnership firm, this Court deems it apposite to refer to the decision of the Delhi High Court in DDA v. M/s Umang Motors in CRL. L.P. No. 209/2006 dated 22.07.2008 wherein the Court has observed that:-

“To hold a partner of a firm vicariously liable u/S-32, the prosecution has to prove that at the time of commission of offence the part