TaxTMI 
TaxTMI 
2020 (9) TMI 1314
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....favour of complainant on 28th July 2016 and thus agreed to repay the said amount as and when demanded, along with interest @Rs.1.25 per cent per annum. The learned Judicial Magistrate, First Class, Akola on 3rd October 2017 passed an order of issuance of process against the applicant, along with other accused/partners. The applicant then filed an application for dismissing the complaint on the ground that the respondent no. 1 has made certain bald and vague allegations in the complaint and has not filed the partnership deed. The applicant has now approached this Court for quashing the complaint filed by the complainant on 1st September, 2017. 4. Ms. Ritu Jog, learned Advocate for the applicant vehemently argued that on a plain reading of the complaint, it is noticed that no prima facie case is made out against the applicant and even if the contents in the complaint are accepted as it is, no offence whatsoever is made out as such, against the present applicant and thus continuing the case before the learned JMFC would certainly be an abuse of the process of the Court. She further submitted that the present applicant (accused no. 2) has not at all signed the cheque; so also the part....
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....ismissed. 6. After hearing both sides and on a perusal of the contents of the partnership-deed and the relevant documents filed, it is noticed that the complaint does not reveal specific averment against the present applicant as to how he was responsible and what particular act he has committed. Admittedly, the partnership-deed is not registered under the provisions of section 69(2) of the Partnership Act. Clause (9) of the partnership-deed makes it crystal clear that the applicant is not a working partner. Clause (9) of the Deed stipulates as under :- "9. SALARY OF THE PARTNER : That ALL parties except Shri Ajay Rampal Sarda, Akola have agreed to work in the partnership firm as the working partner It is hereby agreed that for considering of working in the partnership they shall be entitled to remuneration inclusive of salary bonus and commission of Rs. 75,000/- per month, which shall be payable at the end of the year. The above partners shall not be entitled to draw any remuneration inclusive of salary, bonus and commission in the accounting period in which the partnership firm has suffered loss on the basis of the book profits to computated under explanation 3 to Section 4....
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....t deposited with or due from Bank(s) under any of the accounts shall not be freezed but the remaining partners and legal heirs of the deceased partner shall be entitled to operate the bank account (s) or to withdraw full business." 10. No doubt, clause (5) of the partnership-deed shows that any of the partners can be authorized to act on behalf of the partners to sign or to execute the required papers, documents and undertaking, however the said partnership deed does not in any manner depict that the business of the firm was to accept the deposit and with interest to return the said amount to the person who deposited the said amount. It is mentioned in clause (5) of the Deed that the partners may by mutual agreement, be entitled to raise the loans on such terms and conditions including those by mortgaging or hypothetecating or creating a charge over any of the assets/properties of the firm in the interest of the firm. However, in the present case, the complaint does not reveal that any property belonging to the firm was mortgaged or hypothetecated to the complainant. Even the complaint does not reveal that there was any loan transaction between the complainant and the partnership....
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....he complaint and establishes that fact." 13. In the instant case also, there are no specific averments in the complaint with regard to the fact that the applicant was a working partner. On the contrary, clause (9) of the Deed categorically indicates that the applicant was not a working partner. 14. Learned Advocate for the applicant further placed reliance in the case of SMS Pharmaceuticals Ltd. v. Neeta Bhalla [2005] 63 SCL 93, more specifically on paragraph no. 15 which reads as under :- '15. The question of what should be averments in a criminal complaint has come up for consideration before various High Courts in the country as also before this Court. Secunderabad Health Care Ltd. and others Secunderabad Hospitals Pvt. Ltd. And others (1999 (96) CC (AP) 106) was a case under the Negotiable Instruments Act specifically dealing with sections 138 and 141 thereof. The Andhra Pradesh High Court held that every Director of a company is not automatically vicariously liable for the offence committed by the company. Only such Directors or Director who were in charge of or responsible to the company for the conduct of business of the company at the material time when the offence ....
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....ragraph 34.3 observed thus:- "34.3 In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of the more particulars about the role of the Director in the complaint. It may do so having come across some unimpeachable, incontrovertible evidence which is beyond suspicion or about or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of process of Court."......... 18. In summary, in my considered view, allowing the proceedings against the present applicant would certainly be the abuse of the process of the court as there is no basic averment in the complaint, as discussed above. It is further clear from the catena of judgments relied upon by the learned Advocate for the applicant that mere averments are not enough but prima facie it has to be shown by the complainant that the accused is responsible for the day-to-day affairs of the firm, to attract Section 141 of the NI Act. The purpose of Section 141 of the NI Act appears to be tha....