IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 WP(C).No. 26436 of 2008(V) -------------------------- AGAINST THE ORDER IN STC. 2304 /2008 IN STC.2303/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT I, KANNUR .................... PETITIONER(S): ------------------------- SILJU GEORGE ,AGED 30 YEARS, S/O.V.J.GEORGE, RESIDING AT VADAKKEMULLOTH (H), L.F.C. ROAD, NORTH KALOOR, KOCHI-17. BY ADVS. SMT.C.G.BINDU, SMT.C.G.AJITHA. RESPONDENT(S): --------------------------- 1. THE LABOUR WELFARE FUND INSPECTOR (ASST.LABOUR OFFICER), OFFICE OF THE ASSISTANT LABOUR OFFICER, KANNUR IST CIRCLE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.26436/2008 V APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF DEED OF PARTNERSHIP DTD. 1/04/07. P2: COPY OF THE NOTICE DTD. 28/05/08 ISSUEDBY 1ST RESPONDENT WHICH HASBEEN RECEIVED BY THE PETITIONER IN THE MONTH OFJUNE 2008. P3: COPY OF REPLY LETTER DTD. 7/07/2008 TO EXT.P2 NOTICE. P4: COPY OF A/D IN TOKEN OF RECEIPT OF EXHIBIT P3 BY THE 1ST RESPONDENT. P5: COPY OF SUMMONS DTD. 2/08/2008 ISSUED TO THE PETITIONER BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KANNUR. P5(A): COPY OF SUMMONS DTD. 2/08/2008 ISSUED TO THE PETITIONER BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KANNUR. P6: COPY OF APPLICATIONS SUBMITTED BY THE PETITIONER IN STC 2303/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KANNUR. P6(A): COPY OF THE APPLICATIONS SUBMITTED BY THE PETITIONER IN STC 2304/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KANNUR. P7: COPY OF THE ORDER DTD. 3/9/2011 IN STC 2303/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KANNUR. P7(A): COPY OF THE ORDER DTD. 2/09/2011 IN STC 2304/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KANNUR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss N.K.BALAKRISHNAN, J. ---------------------------------------------------- W.P.(C).No.26436 of 2008 ---------------------------------------------------- Dated this the 23rd day of November, 2011 Judgment A complaint was filed by the first respondent against the petitioner who claims to be a retired partner. A document was produced to show that the petitioner retired from the partnership on 1.4.2007 on which day a deed of Re-constitution of Partnership was entered into. The petitioner contends that the factum of his retirement and the reconstitution of the new firm was duly intimated to the Registrar of firms. According to him, this fact was known to the first respondent also. 2. The shop/establishment of the petitioner was inspected by the first respondent on 27.12.2007. Therefore, according to the petitioner, he cannot be made liable for the non-maintenance of the registers and for other omissions mentioned in the complaint. Hence, on that score itself the complaint against the petitioner is unsustainable. The learned counsel submits that as per Section 22B(1), no court shall take cognizance of a complaint against any person for an offence under clause (a) of Section 22 WPC 26436/2008 2 unless an application in respect of the facts constituting such offence has been presented under Section 20 and has been granted wholly or in part and the appropriate Government or an officer authorised by it in this behalf have sanctioned the making of the complaint. No such sanction order was produced by the complainant. Therefore, on that ground also the cognizance taken against the petitioner is unsustainable. 3. The third limb of the argument is that the punishment prescribed for the offence is only fine and as such the period of limitation prescribed for the filing of complaint is only six months as provided in Section 468 Cr.P.C. Here the offence was detected on 27.12.2007. The complaint was filed on 2.8.2008, far beyond the period of six months prescribed under Section 468 of the Cr.P.C. No petition was filed under Section 473 Cr.P.C. to condone the delay in filing the complaint. Therefore, on that ground also the cognizance taken should be set aside, the learned counsel submitted. 4. With regard to the offence alleged to have been committed under the provisions of the Shops and Commercial Establishments Act also, the learned counsel submits, that under Section 29 of that Act, the punishment prescribed is only fine. WPC 26436/2008 3 Section 29(3)(b) of that Act makes it clear that the complaint should be filed within six months from the date on which the alleged offence comes to his knowledge. Since the offence was detected on 27.12.2007 and since the complaint was filed long after the expiry of six months as provided under Section 29(3)(b) of the Shops and Commercial Establishments Act, the cognizance taken is bad in law. In support of his submissions, the learned counsel has relied upon the decision of this court in Labour Enforcement Officer v. Abdul Khader (1987 (2) KLT 886) wherein it was held: “It is clear from S.22-B that the complaint should be filed within a period of one month from the grant of saction. If the complaint was filed beyond a period of one month after the sanction for prosecution the court is incompetent to take cognizance of the offence.” The learned counsel has also relied upon another decision of this court in Joseph P.P. v. Assistant Labour Officer (2009(2) KHC 832) wherein it was held: “The case of the petitioner is that there was no explanation for the delay and the learned WPC 26436/2008 4 Magistrate has taken cognizance of the offence beyond the period of limitation without hearing the petitioner/accused. It is the contention of the petitioner/accused that the cognizance taken beyond the period of limitation without hearing the accused is illegal in the light of the decision reported in AIR 1995 SC 231 (State of Maharashtra v. Sharadchandra Vinayak Dongre and others). The impugned order taking cognizance of the offences and issuing summons to the revision petitioner is accordingly set aside. The matter shall be remitted to the court below for fresh disposal according to the law.” 5. In the light of what is stated above and also in view of the decisions cited supra, this Writ Petition is allowed. The proceedings in STC Nos.2303 of 2008 and 2304 of 2008 on the file of JFCM Court-I, Kannur will stand quashed. N.K.BALAKRISHNAN, JUDGE. srd WPC 26436/2008 5 WPC 26436/2008 6