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TMI Blog2021 (12) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 12.04.2016 passed in CC No. 1109/2016 and the order dated 02.02.2016 passed in CC No. 4429/2015 by the learned Metropolitan Magistrate-03 (NI Act), South-East District, Saket, Delhi. 2. The above-noted petitions arise out of different complaints filed under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act) and involve the same parties. Accordingly, the petitions are taken up for hearing together and shall be disposed of by a common order. 3. Learned counsel for the petitioner submits that vide the impugned orders, the petitioner has been summoned by the learned Magistrate in the aforesaid complaint cases without due application of mind. It is contended that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laints filed by the complainant company, wherein it is stated that the petitioner was a Director of the accused company and had executed a guarantee deed, thereby undertaking personal liability. It is also submitted that the proceedings before the Trial Court are at the nascent stage and may not be quashed at the outset. 7. I have heard learned counsels for the parties and have also gone through the material placed on record. 8. A perusal of the records would show that on dishonour of the aforesaid cheques, demand notices dated 13.06.2014, 29.04.2014, 17.02.2016 and 21.04.2015 respectively were issued, subsequent to which the accused company failed to pay the outstanding amounts and the aforesaid criminal complaints came to be filed on 01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NI Act, when he had tendered his resignation to the accused company prior to issuance thereof. 11. It is no longer res integra that to attract vicarious liability under Section 141 NI Act against any person, the accused person should have been in-charge and responsible for the conduct of the business of the accused company at the time of commission of offence. A person who was not a Director, and/or not in-charge of the affairs of the accused company or for the conduct of the business thereof, at the time when the offence was committed, cannot be held vicariously liable. 12. To make a Director of a company vicariously liable under Section 141 NI Act, specific allegations have to be made out against him in the complaint. In National Small ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Another reported as (2014) 16 SCC 1 where, in a similar fact situation, it was opined that execution of guarantee deed/letter of guarantee by an erstwhile Director, who ceased to hold office prior to the issuance of the cheques in question, may attract civil liability but not one under Section 138 NI Act. 14. From a perusal of the said decision and considering that Section 141 NI Act is a deeming provision, whereby liability is attributed to Directors who were in-charge and responsible for the affairs of the accused company "at the time when the offence was committed", it is discernible that regardless of a guarantee deed being executed as part of the impugned transaction, no criminal liability would be attributable to a Director of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed by this Court, in exercise of powers under Section 482 Cr.P.C., were enunciated as follows:- "23. In the light of the ratio in S.M.S. Pharmaceuticals Ltd. (supra) and later judgments of which a reference has been made what is to be looked into is whether in the complaint, in addition to asserting that the appellants are the Directors of the Company and they are incharge of and responsible to the Company for the conduct of the business of the Company and if statutory compliance of Section 141 of the NI Act has been made, it may not open for the High Court to interfere under Section 482 CrPC unless it comes across some unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent made in the complaints, alone undertook that the same would be duly honoured upon presentation. Such an undertaking/assurance was not attributed to the present petitioner. In this backdrop, the execution of guarantee deeds by the petitioner at an earlier point in time would not attract vicarious liability under Sections 138/141 NI Act. Besides, there is nothing on record to indicate that the petitioner was in-charge of and responsible for the conduct of the affairs of the accused company at the time of the commission of the offence under Sections 138/141 NI Act. In addition to the aforesaid, note is taken of the fact that apart from the cheques in question, other documents including the Supplemental Agreements for the Factoring of Rece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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