Specific averments and evidence are necessary to hold an individual vicariously responsible for an offence committed by a company under Section 138 of the NI Act.

JUDGMENT

Amit Mahajan, J.

1. The present petition is filed seeking quashing of the order dated 31.03.2021, passed by the learned MM (NI Act, Patiala House Courts, New Delhi), in Criminal Complaint bearing number 10567/2020, titled as M/s Interarch Building Products Pvt. Ltd. v. Swift Construction Expert & Ors., taking cognizance for an offence under Section 138 of the Negotiable Instrument Act (hereinafter referred as "NI Act").

2. The petitioner also seeks quashing of the complaint number 10567/2020.

3. The complaint was filed by the respondent alleging that M/s Swift Construction Expert (hereinafter referred as "accused firm"), a partnership firm had approached Respondent No. 1, in January, 2019, for design, engineering, fabrication, supply, and erection of pre- engineered steel building for its showroom and workshop project in Hardoi, Uttar Pradesh.

4. Pursuant to the acceptance of the proposal, the revised purchase order dated 10.05.2019 was issued and accepted after which further bills and invoices were also raised by the complainant on 18.05.2019 for a total sum of Rs.1,24,19,840/-. It is alleged that after sending numerous reminders to the accused company, on 23.05.2019, the authorised representatives of the accused company had visited the factory of the complainant in-order to check the material as prepared by the complainant and were satisfied with the work done by the complainant and the same was also mentioned in the minutes of meeting which were shared with the accused company. After numerous reminders and follow ups with the accused company, the accused no. 2 (partner), on 07.06.2019 agreed for releasing part payment for their debt and released an amount of Rs. 50,00,000/-through RTGS and towards the balance payment of Rs. 74,19,840/-the complainant was asked to present two out of the three post-dated cheques given earlier, amounting to a sum of Rs 25,00,000/-(Rupees Twenty Five Lakhs Only) bearing cheque no. 025212 and Rs. 36,00,000/-(Rupees Thirty Six Lakhs Only) bearing cheque no. 025213, amounting to a total of Rs. 61,00,000/-(Sixty One Lakhs Only) as part payment towards their outstanding liability. Both cheques were dated 02.09.2020 were retuned by return memo dated 04.09.2020. On dishonour of the said cheques, the impugned complaint was filed before the learned Magistrate. In the complaint, it was averred that the accused firm is working through Mr. Gunjan Jain and Ms. Ridhima Jain (petitioner herein), who were shown as Accused No. 2 and 3 respectively.

5. In relation to the role of the petitioner (Accused No. 3), it is stated as under:

"24. That the Accused no. 1, Accused no.2 and Accused no.3 failed to complete its part of the promise and honour its commitments of payment of its legal and legitimate dues towards Complainant. That the Accused have issued cheques without having the intention to pay and fully knowing that it will not be honoured have devoid the Complainant of its rightful money.

25. That the Accused no. 1, Accused No. 2 and Accused no.3 were very well aware that the above mentioned cheques will not be honoured and with malafide intention and ulterior motives to defraud and cheat the Complainant issued the cheques favour of the Complainant. That the Complainant trusted all the Accused that the they will come with their promise of making payment of all its legally arising dues towards the Complainant, however, the Accused no. 1. Accused no.2 and Accused no.3 asked the Complainant to deposit the said cheques fully knowing that the said cheques would not be honoured by the bank upon presentation thereby misleading the Complainant.

26. That even after repeated reminders all the Accused herein did not pay the amount legally due to the Complainant and tactfully delayed the payment of the amount over and over again. That the Accused no. 1, Accused no.2 and Accused no.3 herein have failed to honour their commitments of payment of their legal and legitimate dues towards the Complainant.

27. That there