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3. The learned counsel for the petitioners submitted that to fasten vicarious liability on the director of a company for an offence under Section 138 of the Act, there have to be specific averments/ allegations in the complaint evidencing that the accused named therein was in-charge and responsible for the day-to-day affairs of the accused company. It is submitted that, in the present case, there are mere bald allegations, that the petitioners were directors of the company, however, it has not been averred that the petitioners were in-charge and responsible for the day-to-day affairs of the accused company and also no role has been attributed to them in the alleged transaction between the complainant/ respondent company and the accused company. Reliance has been placed on S.M.S Pharmaceuticals Ltd. V. Neeta bhalla & Anr AIR 2005 SC 3512, Sabitha Ramamurthy v. R.B.S. Channabasavaradhya (2006) 10 SCC 581, Saroj Kumar Poddar v. State (NCT of Delhi) (2007) 3 SCC 693, N.K. Wahi v. Shekhar Singh & Ors (2007) 9 SCC 481 in support of the contentions. It is further submitted that Sh. Himanshu Aggarwal, Director, was duly authorized by the accused company vide board resolution dated 16.07.2009 to deal with the complainant/ respondent company. The complaint itself discloses the fact that all correspondence and communication, on behalf of the accused company, with the complainant/ respondent company was done by Sh. Himanshu Aggarwal, who is currently facing trial. Relying upon SMS Pharmaceuticals v. Neeta Bhalla, (2007) 4 SCC 70, it is submitted that mere signing of a board resolution by a director does not infer vicarious criminal liability under the Act. It is further submitted that the petitioners herein were not signatories to the dishonored cheques.

5. I have heard learned counsels for the parties and perused the documents available on record and the cases cited by the parties.

6. The facts of every case have to be analyzed on the touchstone of the various judgments of the Hon'ble Supreme Court on the law on vicarious liability under Section 141 of the Act. The Hon'ble Supreme Court in S.M.S Pharmaceuticals Ltd. (Supra) held that, "15. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a Company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section141 of the Act contains the requirements for making a person liable under the said provision. That respondent fails within parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141 he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial.

(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 accused therein vicariously liable for offence committed by company along with averments in the petition containing that 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.

12.The sum and substance of the above is that the vicarious liability cannot be inferred, it has to be proved. Bald and cursory allegations in the complaint cannot be allowed to fasten vicarious criminal liability on a person. Merely being the director of the accused company is not sufficient to confer vicarious criminal liability on the director under Section 141 of the Act. As observed in a catena of Supreme Court Judgments, the provisions conferring vicarious liability on a person have to be construed and interpreted strictly.