High Court of Delhi

Javahar Lal vs. OVT India Pvt. Limited & Anr.

MANU/DE/2804/2022

08.08.2022

Criminal

Without specific allegations in the complaint reflecting the role of the accused, the persons named cannot be summoned in case under Section 138 of NI Act

The Respondents had filed the complaints under Section 138 read with Section 141 of the Negotiable Instrument Act, 1985 (N.I. Act) against Pantel Technologies Pvt. Limited and its directors, the present petitioners Javahar Lal and Vivek Prakash. The learned Trial Court after considering the material on the record, took cognizance of the complaint and issued summons. The present petitions have been filed praying that the proceedings pending before the learned MM be quashed qua the Petitioner arrayed as accused No.2 in the complaints.

It is trite that without specific allegations in the complaint reflecting the role of the accused, the persons named cannot be summoned in case under Section 138 read with 141 of N.I. Act. As has been held in Ramrajsingh vs. State of Madhya Pradesh, it is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed the person accused was in charge of and was responsible for the conduct of the business. This averment is an essential requirement of Section 141 and has to be made in the complaint without which the requirements of Section 141 cannot be held to be satisfied.

Since Section 141 of the N.I. Act raises a legal fiction creating vicarious liability, strict compliance with statutory requirements was called for. A joint liability to pay a debt will not be sufficient to make a person vicariously liable under Section 148 of N.I. Act as observed in Alka Khandu Avhad vs. Amar Syamprasad Mishra & Anr. A civil liability cannot be confused with the criminal liability under Section 138 read with Section 141 of N.I. Act.

The document relied upon by the Respondents does not reflect the fact that, the Petitioner while being a Director of the accused company was participating in the conduct of the business by entering into trade agreements on behalf of the company. The averments do not find support from the very documents relied upon by the complainant/respondent.

Thus, the Petitioner is not responsible for and in-charge of the business of the accused company. It is not pleaded in the complaints that the dishonoured cheques had been signed by the Petitioner. Nor has it been so urged before this Court. Thus, the averments made in the complaints even if be fully accepted, the documents annexed thereto ex facie show that the Petitioner though a Director of the accused company was not in-charge of or responsible for the conduct of its business. Thus, an essential ingredient of Section 141 of N.I. Act based on which vicarious liability could be attached to the Petitioner is missing. The complaint cases qua the petitioner are required to be and are quashed. Petitions allowed.

Tags : Complaint Proceedings Quashing of

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