IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 185 OF 2000 THE REGIONAL DIRECTOR EMPLOYEES’ STATE INSURANCE CORPORATION, ... APPLICANT. Panchdeep Bhavan, Lower Parel, Mumbai-13. (Org.Complainant) V/s. 1 Chandrakant Narayan Kumar ... Respondent. Proprietor , M/s. Kumar Engineers, ( Org. Accused) C-123, Balaji Industrial Estate, Akurli Village, Hanuman Nagar, Kandivli (E), Mumbai -101 2 State of Maharashtra ... Respondent --- WITH CRIMINAL REVISION APPLICATION NO. 111 OF 2000 THE REGIONAL DIRECTOR EMPLOYEES’ STATE INSURANCE CORPORATION, ... APPLICANT. Panchdeep Bhavan, Lower Parel, Mumbai-13. (Org.Complainant) V/s. 1 Shri Damodar S. Mudliar, 2 Mrs. Jayalaxmi S. Mudliar, Directors of M/s. My Home Hotels Pvt.Ltd., 105, Krishna Bldg. Vishal Nagar, Mithchowki, Malad (W), Mumbai -64. 3 M/s. My Home Hotels Pvt. Ltd., ... Respondents. 105, Krishna Bldg., Vishal Nagar, (Org. Accused) Mithchowki,Malad (W), Mumbai. 2 4 State of Maharashtra ... Respondent. --- WITH CRIMINAL REVISION APPLICATION NO. 187 OF 2000 WITH CRIMINAL REVISION APPLICATION NO. 188 OF 2000 WITH CRIMINAL REVISION APPLICATION NO. 189 OF 2000 THE REGIONAL DIRECTOR EMPLOYEES’ STATE INSURANCE CORPORATION, ... APPLICANT. Panchdeep Bhavan, Lower Parel, Mumbai-13. (Org.Complainant) V/s. 1 Chandrakant Narayan Kumar ... Respondent. Proprietor , M/s. Kumar Engineers, ( Org. Accused) C-123, Balaji Industrial Estate, Akurli Village, Hanuman Nagar, Kandivli (E), Mumbai -101 2 State of Maharashtra ... Respondent --- WITH CRIMINAL REVISION APPLICATION NO. 192 OF 2000 WITH CRIMINAL REVISION APPLICATION NO. 193 OF 2000 THE REGIONAL DIRECTOR EMPLOYEES’ STATE INSURANCE CORPORATION, ... APPLICANT. Panchdeep Bhavan, Lower Parel, Mumbai-13. (Org.Complainant) V/s. 3 1 G.M.Singh C/o. M/s. Piyush Snacks & Juice Centre R.R.T. Road, Mulund (W), Mumbai-80 2 M/s. Piyush Snacks & Juice Centre ... Respondents. R.R.T. Rd., Mulund (W), Mumbai. (Org. Accused) 3 State of Maharashtra ... Respondent. ----- Mr. H. V. Mehta for the Applicant in all the Revision Applications. Mr. Y. S. Shinde, APP for the State in all the Revision Applications. None for the Accused in all the Revision Applications. ----- CORAM : A. S. OKA, J. DATED : JUNE 15, 2009 ORAL JUDGMENT : 1. Heard Shri Mehta, learned counsel for the applicant in support of all the aforesaid Revision Applications. None appears for the contesting respondents. 2. The applicant filed a complaint against contesting respondents for the offence under section 85 (a) of the Employees’ State Insurance Act, 4 1948 (hereinafter referred to as “the said Act”) which is punishable under section 85 (i) (b) of the said Act. The allegations in the complaints against the respondents accused are that the respondents accused have failed to pay contribution as required by law and therefore, they have committed an offence and accordingly, the process was issued on the said complaints. 3. During the pendency of the complaints, the applications were made by the accused on the basis of decisions of the Apex Court in the cases of Common Cause I, [(1996) 4 SCC 33] and Common Cause II [(1996) 6 SCC 775]. The contentions raised in the said applications were that as the complaints were not proceeded with and disposed of in terms of the law laid down by the Apex Court in terms of the aforesaid decisions, the accused were entitled to be discharged. The second contention raised in the applications was that the concerned accused have made payment of contribution before filing of the complaints. By the impugned order, the learned Magistrate discharged the accused on the basis of the law laid down by the Apex Court in the cases of Common Cause (I) and Common Cause (II) (supra). The learned Magistrate held that as complaint not having been disposed of in terms of the said decision of the Apex Court, a case was made out for discharge. The learned 5 Judge further held that as contribution amounts have been deposited prior to filing of the complaints, the accused are entitled to discharge. The learned counsel appearing for the applicants placed reliance on the decision of the Apex Court in the case of P. Ramachandra Rao vs. State of Karnataka [(2002) 4 Supreme Court Cases 578]. He submitted that the aforesaid two decisions of the Apex Court in the case of common cause (I) and common cause (II) as well as the decisions of the Apex Court in the case of Raj Deo Sharma I [(1998) 7 SCC 507] and in the case of Rajedeo Sharma II [(1999) 7 SCC 604] are no longer a good law. He has also placed reliance on the decision of this court dated 14th February, 2008 in Cri. Revision Application No.131 of 2000 (The Regional Director ESI Corporation vs. Mr. Shyam Bhatia). He submitted that the present revision applications have been covered by the said decision of the larger bench of the Apex Court. 4. None appears for the contesting respondents. I have perused the revision applications and the impugned order. The order of discharge has been passed on the two grounds. The first ground on which the order of discharge has been passed is that before filing of the complaints the contribution amounts have been deposited. The said view is totally incorrect. Even going 6 by the case made out by the accused, the contribution amount was paid after offence was completed and the deposit of amounts was made before filing of the complaints. This is no ground for discharge of the accused. At the most the deposit of the entire amount of contribution prior to filing of the complaints may be a mitigating circumstance to be considered in the event the accused are convicted. However, the payment of contribution under the said Act of 1948 before filing of the complaints is no ground to discharge the accused. 5. The constitution Bench of the Apex Court in the case of P. Ramchandra Rao vs. State of Karnataka, which was delivered on 16th April, 2002 held that the law laid down by the said court in the cases of common cause (I) and common cause (II) as well as in the case of Raj Deo Sharma (I) and Raj Deo Sharma (II) was no longer a good law. The Apex Court held that prosecution cannot be quashed on the basis of the said decisions. The Apex Court further observed that on the basis of the said decision the orders of acquittal or discharge which have attained finality shall not be re-opened. 6. However in this case when the Judgment of Apex Court in the case of P. Ramchandra Rao was pronounced this revision application was pending in this Court and therefore, the impugned order of discharge had not attained finality. 7 Thus the orders of discharge based on the decisions in the cases of Common Cause are clearly illegal. 7. In the circumstances, the impugned order in the aforesaid revision applications is required to be set aside as the same is illegal. The learned Magistrate will have to proceed with the case in accordance with law . 8 Hence, I pass following order : i. The Revision Applications are allowed. ii. Order of discharge passed by the learned Magistrate which is impugned in the revision applications is quashed and set aside. iii. The learned Magistrate will proceed with the complaints in accordance with the law. iv. Rule is accordingly made absolute in all the above criminal revision applications with no order as to costs. (A.S. OKA, J.)