Kerala High Court
K.S.Sushama Devi vs State Of Kerala on 12 October, 2020
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942
Crl.MC.No.2955 OF 2017
AGAINST THE ORDER/JUDGMENT IN CC 1528/2013 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -II, CHERTHALA
CRIME NO.147/2009 OF Arthungal Police Station , Alappuzha
PETITIONERS/4TH ACCUSED:
K.S.SUSHAMA DEVI
AGED 65 YEARS, W/O. DR. N. MOHAN,
PARTNER, M/S. THE KONCHERRY COIR FACTORIES, MAYITHARA
MARKET PO, PIN-688 539
CHERTHALA TALUK, ALAPPUZHA DISTRICT, RESIDING AT
MULAMOOTTIL HOUSE, CHARAMANGALAM, KANJIKUZHI PO,
CHERTHALA, PIN CODE -688 523
BY ADVS.
SRI.K.C.ELDHO
SRI.ANEESH JAMES
SRI.JIJO THOMAS
SRI.MALLENATHAN.M.
SRI.M.REVIKRISHNAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 682 011
2 EMPLOYEES PROVIDENT FUND ENFORCEMENT OFFICER, O/O,
THE EMPLOYEES PROVIDENT FUND ENFORCEMENT, DISTRICT
OFFICE, ALAPPUZHA
3 THE SUB INSPECTOR OF POLICE, ARTHINGAL POLICE
STATION, ARTHINGAL PO, PIN - 688 530, CHERTHALA
TALUK, ALAPPUZHA DISTRICT.
R1 & R3 BY ADV.SRI. E. C. BINEESH, PUBLIC PROSECUTOR
R2 BY SRI.S.PRASANTH, SC, EMPLOYEES PROVIDENT FUND
ORGANISATION
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
12.10.2020, ALONG WITH Crl.MC.2683/2017, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942
Crl.MC.No.2683 OF 2017
AGAINST THE ORDER/JUDGMENT IN CC 1528/2013 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -II, CHERTHALA
CRIME NO.147/2009 OF Arthungal Police Station , Alappuzha
PETITIONER/6TH ACCUSED:
SHYNI K.S @ SHYNI SABU
AGED 51, W/O.SABU SAUMYAN, PARTNER,
M/S.THE KONCHERRY COIR FACTORIES,
MAYITHARA MARKET P.O., PIN-688539, CHERTHALA TALUK,
ALAPPUZHA DISTRICT, RESIDING AT 'SOULEKHA',
TC.NO.13/1519, BERMA ROAD, KUMARAPURAM,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.K.C.ELDHO
SRI.ANEESH JAMES
SRI.JIJO THOMAS
SRI.MALLENATHAN.M.
SRI.M.REVIKRISHNAN
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-682031.
2 EMPLOYEES PROVIDENT FUND ENFORCEMENT OFFICER
O/O.THE EMPLOYEES PROVIDENT FUND ENFORCEMENT,
DISTRICT OFFICE, ALAPPUZHA.
3 THE SUB INSPECTOR OF POLICE
ARTHINGAL POLICE STATION, ARTHINGAL P.O., PIN-688530,
CHERTHALA TALUK, ALAPPUZHA DISTRICT.
R1 & R3 BY ADV.SRI. E. C. BINEESH, PUBLIC PROSECUTOR
R2 BY SRI.S.PRASANTH, SC, EMPLOYEES PROVIDENT FUND
ORGANISATION
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
12.10.2020, ALONG WITH Crl.MC.2955/2017, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.MC.No.2955 OF 2017 &
Crl.M.C.No.2683 of 2017
3
ORDER
The accused No. 4 and 6 came up against Ext.A3 final report alleging offence under Section 406 IPC and the further proceedings in C.C.No.1528/2013 of Judicial Magistrate of First Class II, Cherthala (Annexure A3). They claims that they are the sleeping partners and as such, not responsible for the non-payment of provident fund contribution from May, 2007 to October, 2008. Relying on the decision in Gopalakrishna Pillai v. State of Kerala (2016 (2) KHC 338), they advanced a case that the sleeping partner would not come under the purview of 'employer' and as such, there cannot be any liability to pay provident fund.
2. Partnership is a joint business of several persons. As such, there cannot be any exclusion of liability among the partners. The business carried on under the partnership should Crl.MC.No.2955 OF 2017 & Crl.M.C.No.2683 of 2017 4 be treated as the personal business of each and every partner. Hence the liability is extended to all partners. The rationale applied in the above said decision is at the stage of revision by analysing the evidence and dispute involved in the case. The question whether accused No.4 and 6 are only sleeping partners and they are not entitled to share any profit out of the joint business yet to be decided based on the evidence to be adduced. A mere incorporation of the word 'sleeping partner' would not relieve a partner who is entitled to share of profit of business from the liability arising out of the joint business. A defence available to the accused either before the trial court or before the first appellate court or in revision may not be sufficient to invoke the inherent power under Section 482 Cr.P.C. It is not permissible to usurp the powers of the trial court, appellate court or revisional court under Section 482 Cr.P.C. and that is not the real intent and Crl.MC.No.2955 OF 2017 & Crl.M.C.No.2683 of 2017 5 purport of Section 482 Cr.P.C. It is submitted that the entire amount due already remitted and a discharge petition - C.M.P.No.2955/2017 submitted before the trial court.
Without prejudice to the right to proceed with the said petition, both the Crl.M.Cs. are dismissed.
Sd/-
P.SOMARAJAN JUDGE SPV Crl.MC.No.2955 OF 2017 & Crl.M.C.No.2683 of 2017 6 APPENDIX OF Crl.MC 2955/2017 PETITIONER'S EXHIBITS:
ANNEXURE A1 A TRUE COPY OF THE PARTNERSHIP DEED OF THE FIRM M/S.THE KONCHERRY COIR FACTORIES.
ANNEXURE A2 A TRUE COPY OF THE AWARD DATED 10/11/2015 PASSED BY THE ARBITRATOR JUSTICE A.K.BASHEER (RETIRED).
ANNEXURE A3 THE TRUE COPY OF THE FINAL REPORT IN CRIME NO.174/2009 OF THE ARTHINGAL POLICE STATION ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHERTHALA AS C.C.NO.1528/2013.
RESPONDENTS' EXHIBITS: NIL //TRUE COPY// PA TO JUDGE Crl.MC.No.2955 OF 2017 & Crl.M.C.No.2683 of 2017 7 APPENDIX OF Crl.MC 2683/2017 PETITIONER'S EXHIBITS:
ANNEXURE A1 A TRUE COPY OF THE PARTNERSHIP DEED OF THE FIRM M/S.THE KONCHERRY COIR FACTORIES.
ANNEXURE A2 A TRUE COPY OF THE AWARD DATED 10/11/2015 PASSED BY THE ARBITRATOR JUSTICE A.K.BASHEER (RETIRED).
ANNEXURE A3 THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.174/2009 OF THE ARTHINGAL POLICE STATION ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHERTHALA AS C.C.NO.1528/2013.
ANNEXURE A4 A TRUE COPY OF THE DEMAND NOTICE FOR RS.8,35,454/- ISSUED BY THE SECOND RESPONDENT ANNEXURE A5 A TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE SECOND RESPONDENT DATED 05.07.2016 ANNEXURE A6 A TRUE COPY OF THE PAY ORDER FOR A SUM OF RS.17,36,813/- DATED 26.11.2019 ANNEXURE A7 A TRUE COPY OF THE COVERING LETTER ENCLOSING ANNEXURE A6 ANNEXURE A8 A TRUE COPY OF THE STATEMENT FILED BY THE SECOND RESPONDENT IN WPC NO.28278/2011 IN THE MATTER OF PAYMENT EFFECTED BY THE PARTNERSHIP FIRM REFERRED TO IN ANNEXURE A3 ANNEXURE A9 A TRUE COPY OF THE JUDGMENT IN CRL.R.P.NO.1154/2013
RESPONDENTS' EXHIBITS: NIL //TRUE COPY// PA TO JUDGE