Specific averments regarding a director's role and responsibility are essential for vicarious liability under Section 141 of the N.I. Act; mere designation is insufficient.

JUDGMENT :

(Rakesh Kainthla, J.)

The petitioner has filed the present petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for quashing complaint No.237 of 2023, dated 01.08.2023, for the commission of an offence punishable under Section 138 of Negotiable Instruments Act (for short N.I. Act) pending before the learned Additional Chief Judicial Magistrate, Theog, District Shimla, H.P. (learned Trial Court). (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 read with Sections 141 and 142 of the N.I. Act against the accused. It was asserted that the accused No.1 M/s Pride NATC Co-operative Society Limited is registered under the H.P. Co-operative Societies Act. It opened one Branch office at Theog, District Shimla, H.P by hiring the premises of the complainant in the year 2017 for carrying out commercial activities. It remained the tenant of the complainant till 31.01.2023. Accused No.2 being the President of accused No.1 and accused No.6 being the Secretary of accused No.1 visited the office on 20.01.2023 and expressed their desire to vacate the premises on 31.01.2023. The complainant demanded an amount of Rs.2,40,000/- being the arrears of rent from June 2022 to 31.01.2023. They issued a post-dated cheque of Rs.2,40,000/-, which was signed by accused No.2 and accused No.6 on behalf of accused No.1. The complainant presented the cheque but it was dishonoured with an endorsement of “funds insufficient”. The complainant issued a notice demanding the amount but no amount was paid. Accused No. 2 to 8 are office bearers of the Managing Committee of accused No.1. Hence, the complaint was filed against the accused for taking action against them as per law.

3. Learned Trial Court found sufficient reasons to summon the accused vide order dated 02.08.2023.

4. Being aggrieved from the filing of the complaint and issuance of summons, the petitioners Nitish Sharma and Rohit Sharma arrayed as accused No. 7 and 4 have approached this Court asserting that the learned Trial Court erred in summoning them. The order does not show an application of mind. The complaint does not contain any allegations against the petitioners. The petitioners were arrayed as accused being the Members of the Managing Committee of accused No.1. Petitioners have not signed the cheque. As per averments made in the complaint, the cheque was signed by accused No. 2 and 6 on behalf of accused No.1, therefore, only they can be held liable for the commission of an offence punishable under Section 138 of N.I.Act. The proceedings against the petitioners amount to an abuse of the process of law. Therefore, it was prayed that the present petition be allowed and the complaint pending before the learned Trial Court be quashed.

5. I have heard Mr Jeet Singh and Mr Karan Veer Dhawan, learned counsel for the petitioners, and Mr Vinay Thakur, learned Counsel for the respondent/complainant.

6. Mr. Jeet Singh, learned counsel for the petitioners submitted that the petitioners are not responsible for the acts of accused No. 2 and 6. The complaint does not mention that the petitioners are in charge of accused No.1 and responsible for its affairs. The petitioners cannot be summoned in the absence of any such averments; therefore, he prayed that the present petition be allowed and proceedings pending before the learned Trial Court qua the petitioners be quashed. He relied upon the judgment of the Hon’ble Supreme Court in Siby Thomas vs. M/s Somany Ceramics Ltd. 2023 INSC 890 in support of his submission.

7. Mr. Vinay Thakur, learned counsel for the respondent/complainant submitted that the petition raises a disputed question of fact which cannot be adjudicated by this Court while deciding a