Court sets aside Section 138 summons against petitioner for lack of vicarious liability.

The court set aside the order summoning the petitioner for an offence under Section 138 of the Negotiable Instruments Act. The petitioner, not being the signatory or Managing Director of the company, and lacking specific averments in the complaint regarding his responsibility for the company's affairs, was not held vicariously liable. The court found no cause of action against the petitioner and disposed of the petition, ruling in favor of the petitioner and setting aside the impugned order.

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Issues Involved:
1. Setting aside the order summoning the petitioner for an offence under Section 138 of the Negotiable Instruments Act (N.I. Act).
2. Lack of specific averments in the complaint against the petitioner.
3. Non-issuance of legal notice to the petitioner.
4. Delay and laches in filing the petition.

Detailed Analysis:

1. Setting Aside the Order Summoning the Petitioner:
The petitioner sought to set aside the order dated 10th May 2019 by the learned Metropolitan Magistrate summoning him for an offence under Section 138 of the N.I. Act. The petitioner argued that he was wrongfully summoned as accused No. 4 without any specific averment against him in the complaint. The cheque in question was issued by the accused company, KRF Ltd., and signed by its Director and Managing Director, not by the petitioner who was the Finance Head.

2. Lack of Specific Averments in the Complaint:
The petitioner contended that the complaint lacked specific averments against him, which is essential for fastening vicarious liability. The complaint only stated that "remaining accused persons are directly responsible for day to day affairs of the Accused No. 1 Company," without detailing the petitioner's role. The court referred to the Supreme Court's principles in *National Small Industries Corporation Ltd. vs. Harmeet Singh Paintal* and *S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla*, emphasizing that specific averments are necessary to hold an individual vicariously liable under Section 138 of the N.I. Act.

3. Non-Issuance of Legal Notice to the Petitioner:
The petitioner also argued that no legal notice was issued to him, and the notice of dishonour was only sent to the company. This, according to the petitioner, meant no cause of action arose against him under Section 138 of the N.I. Act. The court noted that the complaint did not attribute any conduct, act, or omission on the part of the petitioner that would make him liable.

4. Delay and Laches in Filing the Petition:
The respondent argued that the petition should be dismissed due to delay and laches, as it was filed in July 2021 against an order passed in May 2019. However, the court rejected this contention, noting that no period of limitation is prescribed for filing a petition under Section 482 Cr.P.C., and the period of limitation was suspended by the Supreme Court's orders in *Suo Motu WP(C) No. 3/2020* due to the pandemic. Thus, the petition was filed within a reasonable period.

Conclusion:
The court concluded that the petitioner, being neither the signatory nor the Managing Director, and with no specific averments in the complaint regarding his responsibility for the company's day-to-day affairs, could not be held vicariously liable. Consequently, the impugned order summoning the petitioner was set aside, and the petition was disposed of. The application for stay was also disposed of as infructuous.

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