Liability of directors under Section 141 of the Negotiable Instruments Act requires specific averments in the complaint to establish their responsibility for the company's conduct at the time of the offense.

1. On the criminal complaint (no.87/08/2012) of the second respondent, the Metropolitan Magistrate, after holding preliminary inquiry issued process, inter alia, against the petitioner, by order dated 27.08.2015, calling him upon to face the prosecution on the accusations of offence under Section 138 of the Negotiable Instruments Act, 1881. The case concerns non-payment, pursuant to notice of demand issued after dishonor of cheque no.922503 dated 01.04.2008 for Rs.10,31,36,411/- drawn on account held with CITI Bank N.A., New Delhi of a company described as M/s. Carissa Investment Pvt. Ltd. The cheque was concededly issued under the signatures of Muralidhar Vyas, who is also one of the persons summoned as accused, they including the said company. The petitioner shown in the array was described as director of the said company. His liability sought to be attributed with reference to Section 141 of the Negotiable Instruments Act, 1881 on the averments (as appearing in 5th para of the complaint) that he was “incharge of and responsible for the day-to-day business of the company”. Further in para 10 of the complaint, it was alleged that inspite of service of the demand notice, the petitioner, besides others, had failed or neglected to make the payment.

2. The petitioner herein relies on rulings of the Supreme Court in SMS Pharmaceuticals Pvt. Ltd. vs. Neeta Bhalla, (2005) 8 SCC 89, Gunmala Sales (P) Ltd. vs. Anu Mehta, (2015) 1 SCC 103 and Standard Chartered Bank vs. State of Maharashtra, (2016) 6 SCC 62, to contend that the basic requirement of requisite specific averments is missing and, therefore, no case for the petitioner to be held accountable or liable is made out. The prayer by the petition under Section 482 of the Code of the Criminal Procedure, 1973 (Cr. PC) is that this court quash the summoning order and the proceedings arising therefrom against the petitioner, the same being in the nature of abuse of the process of law.

3. The counsel for the complainant while resisting the prayer, argued inter alia, argued that the complaint has been wrongly presented in the court of the Magistrate at Delhi, it being intended to seek its transfer to the criminal court at Mumbai for the reason the bank of the complainant is situate there. This submission, as pointed out by the counsel for the complainant cannot be accepted for two reasons. In the complaint, it has been clearly alleged that the cheque in question was drawn against a bank account held in Delhi and further the cheque was presented by the complainant to its banker at Delhi. Also, no formal request for transfer has been made till date.

4. Taking note of the penal clause contained in Section 138 of the Negotiable Instruments Act, 1881, this court in a decision reported as Jwala Devi Enterprises P. Ltd. Vs. Fadi El Jaouni, 2018 SCC Online Del 10030 had observed thus :-

“6. It is clear from the plain reading of the above quoted provision and is now also well settled that the offence under Section 138 of the Negotiable Instruments Act does not stand constituted merely upon dishonor of a cheque. The dishonor of a cheque which had been issued by the person (who is sought to be prosecuted) in favour of the complainant must be followed by a notice of demand within the stipulated period. It is the non-payment of the amount of the cheque within the statutory period after service of the notice of demand which constitutes the offence that is punishable under the aforementioned provision of law.”

5. On the issue of liability of persons connected with a company with reference to the provision contained in Section 141 of the Negotiable Instruments Act, 1881, this court examined the rulings of the Supreme Court in cases of SMS Pharmaceuticals Pvt. Ltd. (supra), Gunmala Sales (P) Ltd. (supra) and Standard Chartered Bank (supra) and culled out the guidelines in the ruling in Jwala Devi Enterprises P. Ltd. (supra) as under :

“14. The guiding principles with reference to Section 141 of the Neg