Independent directors cannot be held criminally liable under Section 138 of the NI Act without specific allegations demonstrating their responsibility for the company's conduct, as mere designation is insufficient.

JUDGMENT

Swarana Kanta Sharma, J. By way of the present petition filed under Section 482 of the Criminal Procedure Code, 1973, the petitioner seeks quashing of the summoning order dated 28.11.2018 passed by then Metropolitan Magistrate-04, Patiala House Courts, Delhi and the Criminal Complaint no. 16201/2017 titled as "M/s PEC Ltd. v. M/s KS Oil Ltd. & Ors." and all its consequent proceeding pending in the court of MM-04 (NI Act), or any successor court at Patiala House Courts,New Delhi.

2. Briefly stated, facts of the case, leading to the fling of present petition, are as under:

a. That seven agreements (High Seas Sales contracts) were executed between the complainant and the accused no.1 company i.e., K.S. Oils Ltd. for importing crude oil through complainant company, on the respective dates: (i) Two agreements on 24.08.2012, (ii) Two agreements on 28.08.2012, (iii) One agreement on 03.09.2012, (iv) One agreement on 04.12.2012, and (v) One agreement on 08.01.2013.

b. The total amount of all the consignments arising from the contracts was a sum of Rs.1,06,77,37,316.50/- (Rupees One hundred and Six Crore, Seventy Seven Lacs, Thirty Seven Thousand, Three hundred sixteen and Fifty Paise only).

c. On 11.11.2016, 16 cheques were issued in favour of the drawer company against the aforesaid seven agreements. On 07.02.2017, the cheques were drawn on account of Central Bank of India, Morena, MP maintained by the drawer company, and the same were returned dishonored with remarks showing `Funds Insufficient'.

d. Thereafter, on 07.03.2017, statutory demand notice and another addendum notice dated 09.03.2017 were sent to the accused demanding payment of the said amount. However, upon not receiving any response from the side of the accused, a complaint was filed under Section 138/141 of Negotiable Instruments Act, 1881 ("NI Act") bearing complaint no. 16201/2017 before CMM at Patiala House Courts, New Delhi on 27.04.2017. The complaint was filed against the company and 12 persons, who were directors between 2012 and 2017 (including past, non-executive and nominee directors).

e. Thereafter, by virtue of impugned order dated 28.11.2018, the petitioner as well as all other accused persons were summoned to appear by the learned Trial Court.

3. Learned counsel for the petitioner submits that grave miscarriage of justice has been caused by summoning the present petitioner in the complaint case filed by respondent no. 2. It is the case of the petitioner that she was an Independent/Non-Executive Director in the accused company at the time of commission of offence, the fact which is authenticated by the records of Registrar of Companies, and had no role in the transactions or business of the company or in any day to day affairs of the company. Further, petitioner is neither a signatory to any of cheque in dispute, nor were the cheques issued under her knowledge. It is argued by the learned counsel on behalf of the petitioner that the allegations against the petitioner are general and vague and that respondent no. 2 in its complaint has not made any specific allegations against the petitioner to show as to how the petitioner had knowledge or was involved in the transaction alleged in the complaint. Mere statement that the petitioner being a director was incharge and responsible for the day to day affairs of the company cannot make her liable to face the trial. Reliance in this regard is placed on the following judgments: (i) Har Sarup Bhasin v. M/s Origo Commodities India Pvt Ltd., 2020 SCC OnLine Del 11; (ii) Anoop Jhalani v. The State & Anr., 2007 SCC OnLine Del 1293; (iii) MC