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2022 (11) TMI 216 - HC - Indian LawsDishonor of Cheque - vicarious liability of an independent director - active role played in the transactions or business of the company or in any day to day affairs of the company - specific allegations against the petitioner to show as to how the petitioner had knowledge or was involved in the transaction alleged in the complaint, present or not - HELD THAT:- Coming to the facts of the present case, a perusal of Form No. DIR-12, dated 16.01.2017, of the accused company K.S. Oils Limited shows that the petitioner was an independent director at the time of commission of the offence. In view of Section 141 of Negotiable Instruments Act, 1881 and Section 149 of Companies Act, 2013 petitioner could have been held vicariously liable only if it was shown that she was incharge of and was responsible for the conduct of the business of the company at the time of commission of offence, and not otherwise. The general allegations have been made against all the directors of the accused company. Such mere allegation or bald assertion may be sufficient to implicate the Managing directors as well as those who are signatories to cheque, but not the other directors or persons, especially independent or non-executive directors, as held in catena of judgments. In fact, it has come to the knowledge of this Court that in reference to the same complaint case and summoning order, two other directors of the accused company namely Sanjay Aggarwal, arrayed as accused no. 5 in complaint, and Sourabh Garg, arrayed as accused no. 6 and 11 in complaint, had also filed petitions i.e., Crl. M.C. 5852/2019 and Crl. M.C. 5799/2019 before this Court seeking quashing of summoning order qua them. In these petitions, a Coordinate bench of this Court vide order dated 16.08.2022 has quashed the summoning order with regard to the petitioners therein, on the ground that they were not even the directors in the accused company at the relevant point of time and had resigned even before the agreements were entered into between the accused company and complainant - In absence of any specific averments or allegations carving out a specific role attributable to petitioner in relation to conduct of business of accused company, merely making bald statements that all the accused persons/directors were incharge and responsible for the day to day affairs of the company, does not suffice to make the petitioner herein vicariously liable for dishonouring of the cheques not signed by her and there being material on record to show that she was an independent director in the company. In S.M.S. Pharmaceuticals Ltd. [2005 (9) TMI 304 - SUPREME COURT], and affirmed recently in Sunita Palita [2022 (8) TMI 55 - SUPREME COURT] by the Apex Court, liability depends on the role one plays in the affairs of a company and not on designation or status alone. As also held by the Apex Court inM/S. PEPSI FOODS LTD. & ANR VERSUS SPECIAL JUDICIAL MAGISTRATE & ORS [1997 (11) TMI 518 - SUPREME COURT], summoning an accused person cannot be resorted to as a matter of course and the order must show application of mind. The impugned order is quashed to the extent of issuing of summons to the present petitioner for alleged commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - petition allowed.
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