JUDGMENT :

MANOJ KUMAR OHRI, J.

1. The present proceedings impugn order dated 21.01.2014 whereby the petitioner was summoned in complaint case bearing CC No. 465731/2016 instituted under Section 138 read with Sections 141/142 of the NI Act. The petitioner has also impugned the order dated 21.01.2014 by which the petitioner’s application seeking recall of the summoning order was dismissed being not maintainable.

2. Learned counsel for the petitioner has raised two-fold contention. He submitted that the petitioner was appointed as a Director of the accused company on 20.09.2011 and had resigned on 30.11.2013. He contended that the petitioner being a non-executive Director was never in-charge of the business of the accused company or responsible to the company for the conduct of its business. He further contended that in the complaint, no specific allegation or averment has been made against the present petitioner and in the absence of any specific averment, the petitioner cannot be made vicariously responsible for the offence under Section 138 of N.I. Act. In support of his submissions, he has placed reliance on the decisions in National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another reported as (2010) 3 SCC 330, Mannalal Chamaria and Another v. State of West Bengal and Another reported as (2014) 13 SCC 571, J.N. Bhatia & Others v. State & Another reported as (2007) 139 DLT 361 and Shashi Adlakha v. Housing Development Finance Corporation Ltd. reported as 2019 SCC OnLine Del 7160.

3. Per contra, learned counsel for the respondents contended that the present petition is filed after a lapse of four years from the passing of the summoning order and as such is only a delaying tactic. While referring to the Form 32 filed on record by the petitioner, he submitted that the petitioner was rather an ‘Executive Director’ in the category of ‘Promoter’. He submitted that no specific averment is required to be made against an Executive Director. In support of his submission, learned counsel for the respondent referred to the decision of the Supreme Court in A.R. Radha Krishna v. Dasari Deepthi & Ors. reported as (2019) 15 SCC 550.

4. I have heard learned counsels for the parties and have also gone through the case records.

5. The cheques in question were issued on 10.10.2013 and 10.11.2013 for Rs.9 lacs each and were returned dishonoured vide return memos dated 16.11.2013 and 14.11.2013 respectively for the reason “insufficient funds”.

6. A perusal of the Petitioner’s Form 32 placed on record shows that contrary to both the pleadings as well as the submission of the learned counsel for the petitioner, the petitioner was appointed as an ‘Executive Director’ in the category of ‘Promoter’ on 20.09.2011. It is the case of the petitioner that he resigned from the company on 30.11.2013.

7. Section 2(k) of the Companies (Specification of Definitions Details) Rules, 2014 published in the Gazette of India dated 31.03.2014, defines ‘Executive Director’ as follows: -

“Executive Director” means a whole time Director as defined in Clause (94) of Section 2 of the Act.”

8. Section 2(69) of the Companies Act, 2013 defines ‘Promoter’ as follows: -

“Promoter” means a person-

(a) who has been named as such in a prospectus or is identified by the company in the annual return referred to in section 92; or

(b) who has control over the affairs of the company, directly or indirectly whether as a shareholder, director or otherwise; or

(c) in accordance with whose advice, directions or instructions the Board of Directors of the company is accustomed to act:

Provided that nothing in sub-clause (c) shall apply to a person who is acting merely in a professional capacity”

9. Section 2(94) of the Companies Act, 2013 defines a Whole-time Director as follows: -

“Whole-time Director” includes a Director in the whole-time employment of the company.”

10. Further, Section 5 of the Companies Act, 1956 defines the meaning of “Officer who is in default”. It provides as