IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 512 of 2007()
1. IMMANUEL JUSTINE, KOCHAPPILLY HOUSE,
... Petitioner
Vs
1. SREEVIDYA K.P., W/O.C. ASHOK,
... Respondent
2. M/S.AUTOMATES, COCHIN-18.
3. K.P. GEORGE, PARTNER AUTOMATES
For Petitioner :SRI.A.T.ANILKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :13/03/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.512 of 2007
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Dated this the 13th day of March, 2007
ORDER
The petitioner is the managing partner of a firm which has
been found guilty, convicted and sentenced as the 1st accused in
a prosecution under Section 138 of the N.I Act. The petitioner
has not been made an accused personally. He only represented
the 1st accused as its Managing Partner. There was no allegation
or finding that the petitioner had any personal culpable liability
for the offence proved in the case. The signatory of the cheque,
a partner was arrayed as the 2nd accused. He has been found
guilty, convicted and sentenced also.
2. The petitioner has come to this Court with a short
grievance that the learned Magistrate, illegally, incorrectly and
improperly, is issuing non bailable warrant against the petitioner
to arrest him for the alleged liability of the 1st accused. This is
impermissible in law and the non bailable warrant issued against
him deserves to be quashed, it is urged.
3. Report of the learned Magistrate was called for. The
learned Magistrate submits that solely because of an error, non
Crl.M.C.No.512 of 2007 2
bailable warrant of arrest happened to be issued against the
petitioner, who only represents the firm. The learned Magistrate
virtually accepts that the sentence against the 1st accused – a fine
of Rs.50,000/- cannot be attempted to be recovered by any
default sentence against the petitioner. In these circumstances,
the prayer of the petitioner has only got to be accepted.
4. The report of the learned Magistrate seems to suggest
that the partnership has been dissolved. Even if it has been
dissolved, recovery must certainly be effected from the assets of
the partnership in the hands of the individual partners. That the
partnership has been conveniently dissolved subsequent to the
proceedings is certainly no justification for the learned
Magistrate to refrain from initiating steps for recovery of the fine
amount from the partnership. Partnership in law is only a
compendious expression to refer to the partners who transact
business in such name of the firm. The partners shall continue
to be liable for the fine amount which is liable to be recovered
from the partnership. Of course, there can be no attempt to
recover the fine amount from the partnership by imposing any
default sentence on the partners as there is no such default
sentence imposed against the 1st accused at all.
Crl.M.C.No.512 of 2007 3
5. In the result, this Crl.M.C is allowed. It is directed
that non bailable warrant cannot be issued against the petitioner
who only represents the 1st accused. However, the learned
Magistrate shall continue the attempt to recover the fine amount
by issue of warrants under Section 421 Cr.P.C against the
properties of the firm and from the assets of the partners if the
partnership has by now been dissolved.
(R.BASANT, JUDGE)
rtr/-
Crl.M.C.No.512 of 2007 4
R.BASANT, J
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Crl.M.C.No.512 of 2007
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Dated this the 27th day of February, 2007
ORDER
The petitioner is the Managing Partner of a partnership
firm. That partnership firm was the 1st accused in a prosecution
under Section 138 of the N.I Act. The petitioner had
represented the said partnership firm in the said prosecution as
its Managing partner. The petitioner was not an accused
himself. Another partner was arrayed as the 2nd accused. Trial
is complete. Both the accused have been found guilty, convicted
and sentenced. The 1st accused firm has been sentenced to pay a
Crl.M.C.No.512 of 2007 5
fine of Rs.50,000/-. The 2nd accused has been sentenced to pay
fine of Rs.50,000/- and in default of payment of fine to undergo
simple imprisonment for a period of one month.
2. The petitioner now submits that the learned
Magistrate has unjustifiably issued a non bailable warrant
against the petitioner. The petitioner is not an accused. He was
only representing the 1st accused firm. The fine is to be
recovered from the 1st accused firm as stipulated under Section
421 Cr.P.C. The petitioner submits that the learned Magistrate
has incorrectly issued a non bailable warrant against the
petitioner. The petitioner submits that there is absolutely no
justification in the course followed by the learned Magistrate of
issuing a non bailable warrant against the petitioner.
3. I have heard the learned counsel for the petitioner. I
have perused the judgment rendered by the learned Magistrate
in the prosecution. I am satisfied that a report must be called for
from the learned Magistrate about the circumstances under
which non bailable warrant has been issued against the
petitioner, who was only representing the 1st accused firm as its
Managing Partner in the prosecution launched against the
partnership firm and another partner.
Crl.M.C.No.512 of 2007 6
4. The report of the learned Magistrate must reach this
Court by 12.03.2007. Call on 13.03.2007.
Crl.M.Appl.No.866 of 2007
The non bailable warrant issued against the petitioner shall
not be executed till 13.03.2007.
(R.BASANT, JUDGE)
rtr/-
Crl.M.C.No.512 of 2007 7