Kerala High Court
Dr.K.N.Bhaskaran Unni vs The State Of Kerala
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
MONDAY, THE 18TH DAY OF JANUARY 2016/28TH POUSHA, 1937
Crl.MC.No. 5495 of 2015 ()
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CRL.M.P.NO. 4515/2014 IN CC NO. 105/2011 OF CIEF JUDICIAL MAGISTRATE COURT,
THRISSUR DISTRICT
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PETITIONER/ACCUSED NO.1 :
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DR.K.N.BHASKARAN UNNI, "HARISREE",
NEAR PARTHASARATHI TEMPLE, GURUVAYOOR,THRISSUR
MANAGING DIRECTOR OF M/S. ALLIED HOSPITAL LTD.,
GURUVAYOOR ROAD, ARTHAT, KUNNAMKULAM.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
RESPONDENTS/THE STATE OF KERALA AND THE PETITIONER :
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1. THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA AT ERNAKULAM 682 031.
2. E S I CORPORATION, REP. BY THE SOCIAL SECURITY OFFICER,
E S I CORPORATION, THRISSUR 680001.
R1 BY PUBLIC PROSECUTOR SMT. P.MAYA
R2 BY SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPORATION
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 18-01-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
bp
Crl.MC.No. 5495 of 2015 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE I: A TRUE COPY OF THE NOTICE ISSUED BY THE OFFICIAL
LIQUIDATOR DATED 25.7.12.
ANNEXURE II: ATRUE COPY OF THE REPORT SUBMITTED BY THE
LIQUIDATOR IN THE COMPANY COURT DATED 26.11.2012.
ANNEXURE III: ATRUE COPY OF THE ORDER PASSED BY THE COURT BELOW
IN CRIMINAL MISCELLANEOUS APPLICATION NUMBER 4515 OF
2014 IN CC NO.105 OF 2011 ON THE FILE OF THE CHIEF
JUDICIAL MAGISTRATE COURT, THRISSUR
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.S. TO JUDGE
bp
B. KEMAL PASHA, J.
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CRL.M.C. No. 5495 of 2015
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Dated this the 18th day of January, 2016
O R D E R
Heard the learned counsel for the petitioner and the learned Standing Counsel for the 2nd respondent, E.S.I. Corporation.
2. It seems that the Company as well as the Managing Director and other Directors of the Company, who were in charge of the Company, are being proceeded against under Section 85A of the Employees' State Insurance Act, 1948( for short the 'ESI Act) for non-payment of ESI Contribution for the period from 06.09.2007 to 30.09.2009.
3. According to the petitioner, who is the first accused, a winding up order has been passed by the CRL.M.C.No. 5495 of 2015 -: 2 :- Company Court under Section 446 of the Companies Act, as it then stood, with effect from 22.05.2012. Therefore, the proceedings shall not be continued in the case before the court below within the meaning of Section 446 of the Companies Act.
4. The learned Standing Counsel for the ESI Corporation has pointed out that the offences were committed by the persons in charge of the Company, including the petitioner, during the year 2007 to 2009 and the proceedings were initiated by the ESI Corporation under Section 85A of the ESI Act in the year 2008, that is, much prior to the winding up order and therefore, there is no meaning challenging the continued prosecution of the matter.
5. As per Section 446(1) of the Companies Act, 1956 as it then stood, even if the proceedings are pending against the Company as on the date of the winding up order, the same shall not be proceeded with, except with the leave CRL.M.C.No. 5495 of 2015 -: 3 :- of the Tribunal and subject to such terms as the Tribunal may impose.
6. As per sub-Section(2) of Section 446 of the Companies Act, the Tribunal shall, notwithstanding anything contained in any other law for the time being in force, has jurisdiction to entertain, or dispose of any suit or proceeding by or against the Company etc. Therefore, the ESI Corporation has to bring up the matter to the notice of the Company Court and seek leave of the Company Court to proceed with the matter before the court below. In the alternative, if the Company Court so decides, the proceedings can be called for before the Company Court and the Company Court has jurisdiction to proceed with the matter.
In the result, this Crl.M.C. is allowed in part by passing an order of stay of the proceedings in the case before the court below till the petitioner/2nd respondent obtains leave to proceed with the matter from the Companies Court or the 2nd CRL.M.C.No. 5495 of 2015 -: 4 :- respondent's taking steps under Section 446 of the Companies Act.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
[True copy] P.S. to Judge