Kerala High Court
Vijayakumar vs Esi Corporation on 3 October, 2012
Author: P.S.Gopinathan
Bench: P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934`
Crl.Rev.Pet.No. 646 of 2003 ( )
-------------------------------
CRL.A.623/2001 of III ADDITIONAL SESSIONS COURT (ADHOC-I),
THRISSUR
CC.473/1996 of C.J.M.,THRISSUR
REVISION PETITIONER(S)/APPELLANT/ACCUSED :
------------------------------------------
1. VIJAYAKUMAR, AGED 40, S/O.VISWANATHAN,
BALARAM BUILDING, MUNDAKKAL, KOLLAM.
2. M/S. BALARAM TILE WORKS, ERAVIPURAM,
KOLLAM REPRESENTED BY VIJAYAKUMAR.
BY ADV. SRI.B.MOHANLAL
RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :
-----------------------------------------------
1. ESI CORPORATION, REPRESENTED BY THE
INSPECTOR, ESI CORPORATION, THRISSUR.
2. STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
RI BY ADV. SRI.P.SANKARANKUTTY NAIR
R2 BY PUBLIC PROSECUTOR SMT.MADHU BEN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 03-10-2012, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
DSV/-
P.S.GOPINATHAN, J.
----------------------------------------
Crl.R.P.NO. 646 OF 2003
----------------------------------------
Dated this the 3rd day of October, 2012
O R D E R
Revision petitioners are accused 1 and 5 in C.C.No.473/1996 on the file of the Chief Judicial Magistrate, Thrissur. They along with accused 2 to 4 were prosecuted by the first respondent accusing offences under Section 85 (a), (e) and (g) of the ESI Act, with pleadings that the 5th accused is a partnership firm of which the first accused is the managing partner and accused 2 to 4 are the partners and that the establishment is covered under the ESI Act. Code No. was also provided to the establishment. The accused were bound to submit the return for the period of 1/4/1995 to 30/9/995. But they failed to submit the return till 11/11/1995, the last date. They also failed to remit Crl.R.P.NO. 646 OF 2003 2 employers' contribution amounting to Rs.8,712/- for the said period.
2. In response to the process issued, the revision petitioners and other accused entered appearance before the trial court and pleaded not guilty when the particulars of the offences were read over and explained. Therefore, they were sent for trial. On the side of the first respondent, PWs 1 to 3 were examined. Exhibits P1 to P10 were marked. When questioned under Section 313 of the Code of Criminal Procedure, they denied the incriminating evidence and took a plea of total innocence. No oral evidence was adduced. Exhibits D1 to D5 were marked on the defence side. On appraisal of the evidence, the trial court arrived at a finding that the first accused would come within the definition of Crl.R.P.NO. 646 OF 2003 3 principal employer as defined under Section 2(17) of the ESI Act. But there is nothing on record to come to a conclusion that accused 2 to 4 are any way responsible for the conduct of the business so as to prosecute them. There was failure on the side of the accused 1 and 5 to submit the return and to remit the contribution as alleged. Consequently, accused 1 and 5 were found guilty for the above offences and they were convicted. The first accused was sentenced to imprisonment till the rising of the court and a fine of Rs.5,000/- and Rs.3,000/- respectively for offences under Section 85 (a) and 85 (e) of the ESI Act with a default sentence of simple imprisonment for 15 days. The 5th accused was also sentenced to a fine of Rs.5,000/- and Rs.3,000/- respectively. No separate sentence was awarded for Crl.R.P.NO. 646 OF 2003 4 offence under Section 85 (g). Rs.5,000/- was ordered to be paid to the first respondent as compensation under Section 357 of the Code of Criminal Procedure.
3. Aggrieved by the above conviction and sentence, revision petitioners preferred Crl.A.623/2001. The Third Additional Sessions Judge (Adhoc), Thrissur, by the impugned judgment, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition is preferred.
4. I have heard Adv. Smt. P.S.Preetha, the learned counsel appearing for the revision petitioners and the standing counsel appearing for the first respondent. Perused the judgment Crl.R.P.NO. 646 OF 2003 5 impugned.
5. The fact that the first respondent is an establishment covered by the ESI Act is not disputed. The learned counsel for the revision petitioner would argue that the first revision petitioner is not the managing partner. That contention was rightly rejected by the courts below in the light of Exhibit P5 partnership deed, wherein it is specifically stated that the first revision petitioner is the managing partner. The learned counsel for the revision petitioner fairly conceded that neither the other partners nor any person was nominated as manager or the persons responsible for the conduct of the business. So long as there is no nomination, managing partner can not escape. In the above circumstance, the court below Crl.R.P.NO. 646 OF 2003 6 had rightly relied upon Exhibit P5, the authenticity of which is not disputed, to come to a conclusion that the first revision petitioner is the managing partner of the firm which is the 2nd revision petitioner and as such he is responsible for the conduct of the business and affairs of the firm. Exhibit D1 complaint was relied upon to show that the brother of the first revision petitioner is the managing partner of the firm. Exhibit D1 is the copy of complaint in C.C.No.141/1997, a prosecution launched under Section 138 of the Negotiable Instruments Act, basing upon a cheque issued by the brother of the first revision petitioner in discharge of the ESI contribution. The prosecution in that case was launched as if the brother of the revision petitioner is a person who had issued the cheque. Crl.R.P.NO. 646 OF 2003 7 Therefore, Exhibit D1 is not at all sufficient enough to come to a conclusion that the brother of the revision petitioner is the principal employer as defined under Section 2(17) of the ESI Act or that he is responsible for the conduct of the business. The brother of the first revision petitioner, being one of the partner, has got the right to issue cheque to discharge the liability towards the ESI contribution. In the event, such a cheque was issued that would not be a reason to come to a conclusion that the brother of the first revision petitioner was either the managing partner of the firm or that he was responsible for the conduct of the business of the firm. Therefore, that argument is devoid of any merits.
6. The learned counsel further advanced a Crl.R.P.NO. 646 OF 2003 8 contention that during the relevant period, the firm was closed. Regarding that, absolutely there is no evidence. So that argument is also devoid of merits. The learned counsel further advanced a contention that ESI contribution was remitted and in proof of that Exhibits D2 and D3 were relied upon. It would show that by Exhibits D2 and D3 chalans dated 24/3/1997 and 12/6/2000, a similar amount was remitted. But that is long after the launching of the prosecution. Therefore, Exhibits D2 and D3 also would not enure to the benefit of the revision petitioners in defence of the prosecution. The courts below had rightly rejected Exhibits D2 and D3. I find no error, illegality or impropriety committed by the courts below in finding the revision petitioners guilty for the offences alleged. Conviction under Crl.R.P.NO. 646 OF 2003 9 challenge is sustainable.
7. Regarding sentence, taking into account that though late, the revision petitioners had remitted the ESI contribution, I find that they are entitled to a little leniency and that a fine of Rs.2,500/- each for each offence under Section 85(a) and (e) would meet the ends of justice.
In the result, this revision petition is allowed in part. While confirming the conviction and sentence, the fine imposed is reduced to Rs.2,500/- (two thousand five hundred only) each under Section 85
(a) and (e) of the ESI Act for each petitioner. In default of nonpayment of fine, the first revision petitioners shall undergo simple imprisonment for two months. The imprisonment till the rising of the court to the first revision petitioner and the order to Crl.R.P.NO. 646 OF 2003 10 pay compensation are sustained. Trial court shall see the execution of sentence and report compliance.
Sd/-
P.S.GOPINATHAN JUDGE /True copy/ P.A.To Judge DSV/-