IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33450 of 2007 PRAMOD KUMAR AGRAWAL Versus STATE OF BIHAR 9 16.11.2009 In the instant application the petitioner prays for setting aside the order dated 9.5.2007 passed by the Judicial Magistrate, Ist Class, Patna in Complaint Case No.538(M) 1999, whereby the prayer of the petitioner for discharge has been rejected. It is alleged by the Ram Kishore Prasad, Insurance Inspector, Employees State Insurance Corporation, Patna that the petitioner and one Pawan Agrawal are the principal employer of the factory as defined under clause 17 of section 2 of the E.S.I. Act. It is further alleged that the principal employer of the factory are required to pay contribution under sections 39 and 40 of the E.S.I. Act in respect of their employees within stipulated time. It is further alleged that contribution for the period 4/93 to 1/99 was not paid as required under provision of E.S.I. Act read with section 39 of the Act despite issuance of show cause notice to them. The petitioner states that he took over the firm namely Mithila Packaging at Samastipur on 31.12.1994 from Pawan Agrawal and prior to that date he was neither proprietor nor partner of the firm. The petitioner after purchasing the said firm got a new registration no.SM 1302 ® under section 14 of the Bihar Finance Act, 1981 which came into effect from 1.1.1995 and since then no workers had been engaged by the petitioner beyond the limit of the licence issued by the Government and as such he is not required to contribution under the Act. He further submits that no cause of offence took place at Patna and as such the instant prosecution - 2 - KHAN case suffers lack of territorial jurisdiction. Counsel for the respondents has denied some of the averments made by the petitioner. A counter affidavit on behalf of respondent no.2 has been filed in which in paragraph 4 it has been stated that employer’s registration form submitted by the petitioner in accordance with Regulation 10B of E.S.I.(Genl.) Regulation, 1950 on 28.7.1993 clearly shows that the petitioner was partner of the firm prior to 31.12.1994. He submits that the sale deed executed between the two partners would not absolve any of them from the statutory liability. The petitioner’s factory had employed more than 9 persons and as such it came within the purview of section 2(12) of the E.S.I. Act, 1948. He further submits that it is not correct to say that no cause of action took place at Patna. The amount so deposited is ultimately deposited in the State Bank of India, Headquarter at Patna and as such the Insurance Inspector, E.S.I. Corporation has full jurisdiction to file a case at Patna. After hearing counsel for the parties, this court finds that the assertion of the petitioner that he was not a partner in the year 1994 has been controverted. It has further been controverted that the factory in which the petitioner was partner, had employed more than 9 persons. In view of such rival contentions, I do not find any reason to interfere with the impugned order and as such the instant application is dismissed. (S.P.Singh,J) - 3 -