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2022 (2) TMI 1161 - HC - Indian LawsDishonor of Cheque - person responsible for day to day affairs of the company - Signatory of the cheque - vicarious liability - petitioner states that besides there being no averment in the complaint qua the petitioner, no legal notice was issued to the petitioner and notice of dishonour of cheque was issued only to the company - HELD THAT:- The accused No. 1 is the company in whose name the cheque was issued and the accused Nos. 2 and 3 were the Director and Managing Director of the company and signatories to the cheque. However, the petitioner was arrayed as accused No. 4 being the Finance Head of the accused company against whom there is no specific allegation except stating in para 3 of the complaint that the remaining accused persons were directly responsible for day to day affairs of the accused No. 1 company. In SMS PHARMACEUTICALS LTD. VERSUS NEETA BHALLA [2005 (9) TMI 304 - SUPREME COURT], it was held that that in order to array an accused for an offence under Section 138 of the N.I.Act who is not signatory to the cheque, specific averments have to be made in the complaint as to the role attributable to the said accused and as to how he was responsible for the conduct and affairs of the company. In the facts of the present case, the only averment in the complaint is that the remaining accused persons are directly responsible for day to day affairs of the accused No.1 company. Considering the fact that the petitioner is neither the signatory nor the Managing Director of the company nor is there any averment in the complaint as to how the petitioner is responsible and Incharge of the day to day affairs and conduct of the company, nor does the complaint attribute any conduct, act or omission on the part of the petitioner which would be sufficient to hold him vicariously liable for the act of the company, the impugned order summoning the petitioner is liable to be set aside. The impugned order of the learned Metropolitan Magistrate is set aside - Petition allowed.
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