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"More often it is common that some of the partners of a firm may not even be knowing of what is going on day-to-day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to Sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in Sub-section (1) is established".

16. In the present case petitioners (accused 4 to 6 and 8) are the Directors of the company. There is no specific averment about the role of each of Directors except baldly stating in the complaint that these are the Directors of accused 1-company and hence they are to be held responsible for the day-to-day affairs of the firm or company. In my view, this would not be a sufficient averment. From the words used in the complaint, for example at para 7 that accused 4 to 6 are working partners of the firm and are held responsible for the day-to-day affairs indicate that the complainant wants to infer the fact that merely because such person is a director, he is deemed to be responsible for the commission of the offence. As observed by the Apex Court in the aforesaid decisions, there are number of different types of partners in a firm or a company. He may be working partner, sleeping partner or partners who are minors. Merely because he is a partner, it cannot be straightaway inferred that he is responsible for the day-to-day working or he is in charge of and responsible for the very operation of the company and more so towards the commission of the crime in question. No doubt the proviso to Section 34(1) leaves it open to such co-accused to prove beforethe Trial Court such offence was committed without his knowledge or in spite of his exercising due diligence in proving the commission of such offence but that is at the trial stage. As observed by the Apex Court in the case of Mis. Pepsi Foods Limited v Special Judicial Magistrate, if there is absence of such prima facie allegation or averment why the person should be asked to undergo the agony of a criminal trial and make him to prove the fact which was not even averred basically by the complainant in his complaint filed under Section 200 of the Criminal Procedure Code. Hence, in my view, that apart from saying that the co-accused is holding certain posts like Director, Manager or Secretary or any other officer of the company, the main accused, it must be clearly averred in the complaint itself as to whether he was in charge of the company or its affairs and how he was concerned with the commission of the offence itself. Taking into consideration the various pronouncements of the Apex Court in this regard in respect of similar provisions arising under the different special enactments creating various liabilities on the partners of a firm or Directors of a company, I hold that the complainant in his complaint should mention and aver the details as to how the particular vicariously liable person or accused is concerned with the commission of the crime itself and unless and until the same is done, merely because he is a Director or an officer cannot be held to be straightaway as an accused.