The short question to be dealt with is, as to whether the award of fine made in a proceedings under Section 138 of the Negotiable Instruments Act, 1881 [for brevity “N.I.Act”] is liable to be recovered from the petitioner, personally. 2. Admittedly the petitioner was the partner of a firm, viz., M/s.Lean Exports. The 4th respondent herein initiated a proceeding under Section 138 of the N.I.Act for dishonour of a cheque of Rs.75,000/-. The proceedings ended in the conviction of the firm, represented by the petitioner herein and the award of fine was directed to be recovered from the assets of the firm and not from the personal assets of the partner. A revision filed, by the 4th respondent, from the said order was rejected by Exhibit P1, confirming the action of the learned Magistrate. Hence, as things stands now, the realization of the amount imposed as fine as per Exhibit P1 could only be from the assets of the firm and not from the personal assets of the petitioner. The petitioner is aggrieved by the proceedings initiated against his personal property, as per Exhibit P2.
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3. In fact the challenge made in revision was specifically against the recovery being confined against the assets of the firm alone and not permitting recovery from the personal assets of the petitioner. This Court is not called upon the decide upon the legality of the findings entered in Exhibit P1, since the 4th respondent is not seen to have challenged it. The petitioner only contends that as per the judgment in C.C.No.240 of 2003 on the file of the Judicial First Class Magistrate Court-V (Special Court for Mark List Cases), Thiruvananthapuram, which was confirmed in Crl.R.P.No.77 of 2007 by the Sessions Court, Thiruvananthapuram, the fine could be recovered only from the assets of the firm. There is no challenge against Exhibit P1 by the 4th respondent. Hence, subject to any challenge as against Exhibit P1, the revenue recovery proceedings, Exhibit P2, initiated against the petitioner is set aside. It is also made clear that the revenue recovery has been set aside only with respect to the personal assets of the petitioner and can be proceeded with as against the firm.
Writ petition is allowed. No costs.
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Sd/- K.Vinod Chandran Judge.
( true copy )