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8. The learned Public Prosecutor as well as the learned counsel for the 2nd respondent-Complainant - Sri D.Ramalinga Swamy - strongly disputed the aforesaid contentions.

9. The 2nd respondent-Complainant, A.1 and the petitioner herein constituted a partnership firm - Siri Marketings - to carryon the business in purchase and sales of lubricating oils, building materials etc. They have also executed a partnership deed on 12-8-1994. According to which, each of the partners have to contribute a sum of Rs. 94,000/- and shall get 1/3rd share each in the profit and loss of the firm. The partnership deed specifically states that A.1 shall be the Managing Partner. It also states that A.1 and the complainant will be working partners, who will be entitled to a salary of Rs. 500/- to Rs. 2,000/- per month. These facts were also admitted in the complaint filed by the complaint and the charge sheet laid by the Police, which are referred to hereinabove. Thus, admittedly, the petitioner has nothing to do with the day-to-day business of the firm or operation of the bank account of the firm, which was jointly operated by A.1 and the complainant. The petitioner is not even a working partner and she is not entitled to draw any salary. It is, therefore, clear that she is only a sleeping partner.

10. The question, therefore, arises for consideration is:

11. Whether a sleeping partner of a firm is criminally liable for the acts of the Partnership Firm?

12. This question was considered by the Supreme Court in SHAM SUNDER V. STATE OF HARYANA, . That was a case where the sleeping partners of the Partnership Firm - M/s. Panna Lal Prem Nath Rice Mills at Shahpur - were prosecuted and convicted by the trial Court for the offences said to have been committed by the firm in contravention of the Haryana Rice Procurement (Levy) Order, 1979 and punishable under Section 7 of the Essential Commodities Act. The High Court of Punjab & Haryana confirmed that conviction. The appellants then approached the Hon'ble Supreme Court by of an Appeal. Considering the scope of Section 10 of the E.C. Act, which made every Director of a Company or a Partner of a Partnership Firm, who is responsible to the Company or the Partnership Firm for the conduct of the business of the Company/Firm, at the relevant time, also liable for the offences under that Act, the Supreme Court held thus:

8. But we are concerned with a criminal liability under penal provision and not a civil liability. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does not make all the partners liable for the offence whether they do business or not.

9. It is, therefore, necessary to add an emphatic note of caution in this regard. 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. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State".

14. That decision applies on all fours to the facts of the case on hand.

15. As already noted, the petitioner herein is a mere sleeping partner. Even according to the complaint and the charge sheet, it is the defacto-complainant (2nd respondent herein) and A.1, who were managing the affairs of the firm as working partners and also receiving salary. At no point of time the petitioner herein was entrusted with the management of the firm. LW.2, who is no other than the father of the defacto-complainant, categorically stated that the petitioner-A.2 was a sleeping partner of the firm - Siri Marketings. Likewise, LW.3, who worked in the said firm, also categorically stated that the petitioner-A.2 was a sleeping partner. LW.5, who was a friend of the defacto-complainant, also stated that the day-to-day business of the partnership firm was looked after by A.1. As already noted, even the complainant himself stated in the complaint that it is A.1, who was incharge of the business of the firm and operating the Bank account. The petitioner remained as a sleeping partner even in the reconstituted firm after the retirement of the defacto-complainant. This is evident from the partnership deed that was executed on 1-4-1995. Thus, there is no whisper either in the complaint or in the 161 Cr.P.C. statements recorded during the course of investigation or in the charge sheet about the involvement of the petitioner (A.2) in day-to-day business of the firm. Therefore, the petitioner cannot be prosecuted for the alleged offences committed by the Firm under Sections 406, 420 and 477-A IPC.