SAI GIRDHAR RAJ KUMAR Vs. ARUN KAPOOR

JUDGEMENT

(1.) The present proceedings impugn order dated 21.01.2014 whereby the petitioner was summoned in complaint case bearing CC No. 465731/2016 instituted under Section 138 read with Sections 141/142 of the NI Act. The petitioner has also impugned the order dated 21.01.2014 by which the petitioner's application seeking recall of the summoning order was dismissed being not maintainable.

(2.) Learned counsel for the petitioner has raised two-fold contention. He submitted that the petitioner was appointed as a Director of the accused company on 20.09.2011 and had resigned on 30.11.2013. He contended that the petitioner being a non-executive Director was never in-charge of the business of the accused company or responsible to the company for the conduct of its business. He further contended that in the complaint, no specific allegation or averment has been made against the present petitioner and in the absence of any specific averment, the petitioner cannot be made vicariously responsible for the offence under Section 138 of N.I. Act. In support of his submissions, he has placed reliance on the decisions in National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another, 2010 3 SCC 330, Mannalal Chamaria and Another v. State of West Bengal and Another, 2014 13 SCC 571, J.N. Bhatia & Others v. State & Another, 2007 139 DLT 361 and Shashi Adlakha v. Housing Development Finance Corporation Ltd.,2019 SCCOnLineDel 7160.

(3.) Per contra, learned counsel for the respondents contended that the present petition is filed after a lapse of four years from the passing of the summoning order and as such is only a delaying tactic. While referring to the Form 32 filed on record by the petitioner, he submitted that the petitioner was rather an 'Executive Director' in the category of 'Promoter'. He submitted that no specific averment is required to be made against an Executive Director. In support of his submission, learned counsel for the respondent referred to the decision of the Supreme Court in A.R. Radha Krishna v. Dasari Deepthi & Ors., 2019 15 SCC 550.