IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 Crl.MC.No. 892 of 2011() ----------------------------- (C.C.NO.33/04 OF ADDL CHIEF JUDICIAL MAGISTRATE COURT (ECCONOMIC OFFENCES), ERNAKULAM) .......... PETITIONER(S): SECOND ACCUSED ----------------------------------------- P.DIVAKARAN, PARAPILLIL HOUSE, IRUMPANAM, ERNAKULAM. BY ADVS. SRI.ANIL D. NAIR SRI.J.R.PREM NAVAZ SMT.NIVEDITA A. KAMATH RESPONDENT(S): COMPLAINANT -------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE ASSISTANT REGISTRAR OF COMPANIES, KERALA, M.G.ROAD, ERNAKULAM, COCHIN-11. R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.892 of 2011 -------------------------------------- Dated this the 22nd day of March, 2011. ORDER Petitioner is an employee of a company and is arrayed as second accused in C.C.No.33 of 2004 of the court of learned Chief Judicial Magistrate (Economic Offences), Ernakulam for offences punishable under Sections 58A (1), (4), (5) and (6) of the Companies Act, 1956 (for short, “the Act”) and Rule 11 of the Companies (Acceptance of Deposits) Rules, 1975 (for short, “the Rules). According to the petitioner he has been arrayed as an accused on the premise that pursuant to the inspection carried under Section 209A of the Act and information received from the books of accounts of the company. It is contended that petitioner is impleaded as if he is an 'officer in default’ under the said Act but the company was under the management of a receiver appointed by this Court. It is also contended that since records were in the custody of the receiver, company needed time to produce documents before appropriate authority. But without waiting for that, prosecution was launched. According to the learned counsel petitioner is not liable to be proceeded against. 2. It is seen that the case was taken on file by the learned Additional Chief Judicial Magistrate (Economic Offences) in the year 2004 and for seven years petitioner did not challenge his impleadment in the case. It is not disputed that in the meantime the court framed charge against the petitioner. That also Crl.MC No.892/2011 2 was not challenged. Now the case is ripe for trial. It is at that stage that petitioner has approached this Court with a request to quash the proceeding. 3. Learned counsel submits that there was a stay against trial at the instance of some other accused in the case. But that is no reason why the petitioner did not challenge his impleadment in the case for the last more than seven years. At this late stage I do not consider it necessary to interfere under Section 482 of the Code of Criminal Procedure. Petitioner can raise all his defences in the trial court at the time of trial. 4. It is submitted that physical presence of the petitioner in the trial court may be exempted. In the light of the decision in T.G.N.Kumar v. State of Kerala and others (2010 (1) KHC 142) it is not appropriate for this Court to issue such a direction. But, considering the nature of offence alleged to be committed and since no dispute regarding identity of petitioner is likely to arise, in case petitioner files an application for permanent exemption and allow him appear through counsel in the course of trial, learned Chief Judicial Magistrate (Economic Offences), Ernakulam shall consider the same and pass appropriate orders. With the above direction this petition is dismissed. THOMAS P.JOSEPH, Judge. cks