Vicarious liability under Section 141 of the Negotiable Instruments Act must be explicitly established through allegations of active involvement in corporate affairs, not merely inferred.

JUDGMENT :

NEENA BANSAL KRISHNA, J.

1. Aforesaid Petitions have been filed under Section 528 Bhartiya Nagarik Suraksha Sanhita ( BNSS ) seeking quashing of Order dated 31.05.2024 vide which the Ld. M.M has summoned the Petitioner in C.C. No. 4668-4671/2024 for offence under S.138 Negotiable Instruments Act (NI Act).

2. Briefly stated, Accused No.1/M/s Ninaniya Estates Limited represented to the Complainant that they have absolute ownership of parcel of land bearing Killa No. 4/18/2/1, 18/2/2, 19, 21/2, 22, 26, 8/2, 48/8/3, 12, 13/1 admeasuring 20,876.97 sq. yds in Revenue estate of Gwal Pahari, Gurgaon. It was further represented to the Complainant that they have all the necessary regulatory approvals for the construction of a Five Star Hotel and that they are in the process of constructing one called “Prism Hotel & Suites.”

3. On this representation, the Complainant applied for allotment of commercial spaces in the „Prism Suites‟ on ownership basis and was allotted Prism Suite No. PES-410 situated in Tower C of the Prism Executive Suites, after payment of the agreed consideration in terms of the Builder Buyer‟s Agreement dated 23.05.2016.

4. Due to deficient services of Accused No. 1, the Complainant entered into an Agreement via a consent letter dated 30.11.2023 surrendering the PES-410 to Accused No. 1 for Rs. 64,35,000/-.Accused No.1 acknowledged, agreed and processed the request of Complainant thereby agreeing to refund a sum of Rs. 64,35,000/-.

5. Accused No. 1 signed and delivered to the Complainant six cheques in discharge of its liability towards the Complainant bearing numbers as detailed below:

6. The Cheques at Serial No.2,3&4 were dishonoured on presentation and were returned with remarks “Account closed” vide Return memo dated 03.04.2024.The Complainant informed Accused No. 1 about the same but the dues remained unpaid. Consequently, demand Notice dated 19.04.2023 was served upon the Accused through Speed Post on 23.04.2023, despite which no payment was made within 15 days by the Accused.

7. Thus, the Complaint under S.138 NI Act was filed. Summons were issued against M/s Ninaniya Estates Limited and the Petitioner/Vijay Singh Rao vide Order dated 31.05.2024.

8. Aggrieved by the same, the present Petition is preferred seeking quashing of the Summoning Order on the ground that the impugned Order is passed in a totally mechanical manner and the same is against the well- settled principles of law i.e. while taking cognizance/summoning the Ld. MM has to examine carefully whether the ingredients of an offence have been made out or not against „each‟ proposed Accused.

9. It is submitted that the Petitioner has not signed any document or cheque regarding the transactions with the Complainant/Respondent no. 2. The Ld. MM has summoned the Petitioner merely because he is one of the Directors in the AccusedNo.1/Company. As is the settled law, vicarious liability under S.141NI Act has to be specifically made out in the Complaint.

10. The Ld. MM has failed to examine the facts properly and wrongly summoned the petitioner merely on bald averments. It is submitted that the offence of Section138 of N.I. Act is said to occur when the cheque is returned unpaid for various reasons and legal notices send to the accused person who are involved in it. Perusal of Paragraph no. 7, 8, 9 of the Complaint reveals that there is not even a bald allegation that the present Petitioner was involve