ORDER

% 31.01.2023 CRL.M.A. 2345/2023-EX. Allowed subject to all just exceptions. The application stands disposed of. CRL.M.C. 598/2023

1. This is a petition filed seeking setting aside of the summoning order dated 30.10.2021 passed by the learned MM (NI Act) Digital Court-2, Dwarka Courts, Delhi in CC NI Act/16760/2021, PS Vikaspuri under Section 138 of the NI Act titled „Smt. Sangita Kumari @ Sangita vs. M/s Delhi Infratech Limited & Ors.‟

2. Even though there is an order of the Appellate Court dated

21.01.2023, wherein the revision of the appellant was dismissed, the same has not been challenged. It is stated by Mr. Ajit Kumar, learned counsel for the petitioner that the issue raised goes to the root of the matter.

3. It is stated that a complaint was filed by the respondent against M/s Delhi Infratech Limited and its Directors and Mr. Ashok Khatri as well as the present petitioner.

4. Mr. Kumar, learned counsel for the petitioner has drawn my attention to the legal notice preceding the complaint dated 28.06.2021 which has only been issued to M/s Delhi Infratech Limited through authorised signatory. The signatory is not mentioned and no notice has been sent to the petitioner herein.

5. It is further stated by Mr. Kumar, learned counsel that the petitioner is not an authorised signatory of M/s Delhi Infratech Limited. Hence, he states that in the absence of a statutory notice, the complaint cannot be maintained against the petitioner. He has relied on the judgment titled “ C.C. Alavi Haji vs. Palapetty Muhammed and Another ” [(2007) 6 SCC 555]; Crl. Rev.P. 438/2017 titled “ R.L. Varma & Sons (HUF) vs. P.C. Sharma ” dated 01.07.2019 and “ National Small Industries Corporation Limited vs. Harmeet Singh Paintal and Another ”

[(2010) 3 SCC 330].

6. Issue notice to the respondent through all modes including electronic on the petitioner taking steps within 1 week from today.

7. The notice is returnable on 18.04.2023. CRL.M.A. 2346/2023- STAY

8. This is an application filed seeking stay of proceedings of the summoning order dated 30.10.2021 passed by the learned MM (NI Act) Digital Court-2, Dwarka Courts, Delhi in CC NI Act/16760/2021, PS Vikaspuri under Section 138 of the NI Act titled „Smt. Sangita Kumari @ Sangita vs. M/s Delhi Infratech Limited & Ors.‟

9. In the present case, no notice has been issued to the petitioner. The petitioner is not the authorised signatory of M/s Delhi Infratech Limited. Prima facie in the absence of the statutory notice, whether the complaint can be maintained against the petitioner seems to be doubtful.

10. The Hon‟ble Supreme Court in “ National Small Industries Corporation Limited vs. Harmeet Singh Paintal and Another ”

[(2010) 3 SCC 330] has stated:-

“ 39. From the above discussion, the following principles emerge:

(i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction.

(ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company.

(iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with.

(iv) Vicarious liability on the part of