A complaint under Section 138 must contain specific averments to establish vicarious liability; mere title or position is insufficient for liability. Absence of allegations against an accused leads to quashing of the summons.

JUDGMENT

Mukta Gupta, J. (Oral)--By this petition, the petitioner seeks setting aside of the order dated 10th May 2019 passed by the learned Metropolitan Magistrate-03, N.I.Act, Tis Hazari Courts summoning the petitioner for an offence punishable under Section 138 of the Negotiable Instruments Act (in short, the N.I.Act).

2. Learned counsel for the petitioner states that the cheque which got dishonoured was issued by the accused No. 1 company namely KRF Ltd. of which the accused Nos. 2 and 3 were the Director and Managing Director respectively. Without any averment in the complaint against the petitioner who was employed as the `Finance Head' of the company, the petitioner was impleaded as accused No. 4 and summoned by the impugned order by the learned Metropolitan Magistrate.

3. Learned counsel for the petitioner states that besides there being no averment in the complaint qua the petitioner, no legal notice was issued to the petitioner and notice of dishonour of cheque was issued only to the company. Thus, no cause of action for instituting the complaint under Section 138 of the N.I.Act arises against the petitioner. Further, the petitioner being neither In-charge nor responsible for the conduct of the affairs of the company nor signatory to the cheque, the impugned order be quashed. Reliance is placed on the decisions of Hon'ble Supreme Court reported as (2010) 3 SCC 330 National Small Industries Corporation Limited Vs. Harmeet Singh Paintal and Another; (1971) 3 SCC 189 Girdhari Lal Gupta Vs. D.H. Mehta and Another and (2005) 8 SCC 89 S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another.

4. Refuting the contentions of learned counsel for the petitioner, learned counsel for the respondent No. 2 submits that the present petition is liable to be dismissed on the ground of delay and laches. The impugned order was passed on 10th May 2019 and the present petition has been instituted in July 2021. He further states that the respondent No. 2 had impleaded five accused, the fifth accused being Rohan Sharma, the `Business Head' of the company who has since been discharged, however, since the petitioner was impleaded as accused No. 4 being the `Finance Head' of the company and was in control of the day to day affairs and functioning of the company, he cannot be absolved of his liability towards the respondent No. 2. He states that the decision of the Hon'ble Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. (supra) has no application to the facts of this case as the Hon'ble Supreme Court in the said matter was dealing with the responsibilities of the Directors and held that the Directors who are responsible for the day to day functioning of the accused company would be responsible for the dishonour of the cheque. Petitioner being the Finance Head of the company would be deemed to be responsible for all the financial irregularities of the company including dishonour of the cheque. Reliance is placed on the decision of this Court reported as III (2012) CCR 45 (Del) P.P. Marina and Ors. Vs. State and Ors. as also on the decision in S.M.S. Pharmaceuticals Ltd. (supra).

5. Contention of learned counsel for the respondent No.2 that petition is liable to be dismissed on the ground of delay and laches deserves to be rejected for the reason, no period of limitation is prescribed for filing a petition under Section 482 Cr.P.C. which inherent power of the Court is required to be exercised to meet the ends of justice and to prevent abuse of the process of law. Further, even though, no period of limitation has been prescribed for filin