IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 Crl.MC.No. 1095 of 2005() ------------------------- CC.316/2003 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... PETITIONER(S): ACCUSED: ----------------------- M/S. NAVAB PRINTERS AND PUBLISHERS KELOTH, PAYYANNUR THROUGH PROPRIETOR N.A.V. ABDULLAH, AGED 45 YEARS, S/O. ABDUL RAHMAN HAJI, RESIDING AT AFRA, KELOTH, PAYYANNUR. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID (THALASSERY) RESPONDENT(S): COMPLAINANT: --------------------------- 1. EMPLOYEES STATE INSURANCE CORPORATION REPRESENTED BY THE INSPECTOR, EMPLOYEES STATE INSURANCE CORPORATION, TRICHUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SANKARANUTTTY SC ESI PUBLIC PROSECUTOR SRI. K.C.SANTHOSH KUMAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.5684/06 IN CRL.M.C.1095/2005 DISMISSED. ID/- K.HEMA, JUDGE. 23.1.2008 // TRUE COP// P.S. TO JUDGE. K.HEMA, J. ----------------------------------------------- Crl. M.C. No.1095 of 2005 ----------------------------------------------- Dated this the 23rd day of January, 2008. O R D E R This petition is filed to quash Annexure-I complaint filed against the petitioner alleging various offences under Section 85 of the employees' State Insurance Act ('the Act' for short). 2. As per the allegations in the complaint, petitioner is principal employer of an establishment known as 'Navab Printers and Publishers' and responsible for supervision and control of the said establishment. It is covered under Section 2(12) of the Act. But the accused/petitioner failed to pay E.S.I. Contribution on time and the contribution was defaulted. The amount defaulted is the employees share of contribution as well as the employer share of contribution which is payable by petitioner as per the provisions of the Act. The failure to make payment is an offence under Section 85 of the Act. 3. According to learned counsel for petitioner, the [Crl.M.C.No.1095/2005] 2 petitioner cannot be proceeded against, on the basis of complaint, since an injunction order was passed by E.S.I. Court as Annexure-6. It is also contended that a dispute is raised regarding the coverability of the petitioner under the provisions of the Act and also with respect to his liability to pay contribution and E.I.C. No.48/2004 was filed before the E.S.I. Court. Therefore, in the light of the pendency of the proceedings before the E.S.I. Court, pendency of proceedings before the Criminal Court will amount to abuse of process of court, is the contention. 4. On hearing both sides, I am not satisfied that only because the proceedings under Section 75 of the E.S.I. Act is pending before the E.S.I. Court, criminal complaint has to be quashed. Both the criminal case as well as the proceedings before the E.S.I. Court under Section 75 can proceed simultaneously. Petitioner has a case that he has not committed the offence because he is not covered under the Act. Such contentions can be raised before the criminal court also. 5. Apart from this, the coverability under the Act is a [Crl.M.C.No.1095/2005] 3 disputed fact which goes to the root of the case. But, a question of fact which cannot be resolved in a proceedings under Section 482 Cr.P.C. In the above circumstances, I find no ground to interfere and it is left to the petitioner to raise all contentions before the trial court. The Crl.M.C. Is dismissed. K. HEMA, JUDGE. krs.