IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 Crl.MC.No. 708 of 2009() --------------------------------- S.T. NO.2188/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ERNAKULAM ............. PETITIONER/ACCUSED -------------------------------- GANGADHARA BHATT,S/O.LATE THRIVIKRAMA BHATT, AGED 36 YEARS, 58/5404, T.D.NORTH, ERNAKULAM. BY ADV. MR.B.PRAMOD MR.GEORGE MATHEWS RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------- 1. ASST.LABOUR OFFICER ERNAKULAM II CIRCLE, KOCHI-30. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR MR.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/03/2009, ALONG WITH CRL.MC.717 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N. KRISHNAN, J ----------------------- CRL.M.C.No. 708 OF 2009 & CRL.M.C.No. 717 OF 2009 --------------------------------- Dated this the 5th day of March, 2009 O R D E R Crl.M.C. 708/2009 is preferred to quash Annexure I complaint and all further proceedings in S.T. 2188/2008 of the Judicial First Class Magistrate Court -II, Ernakulam. Annexure I complaint is one initiated under section 29 of the Kerala Shops and Commercial Establishment Act, 1960 for violations of Section 5A(6) and Rule 10(1)A. Crl.M.C. 717/2009 is filed with a prayer to quash Annexure I complaint in that case which is a prosecution initiated under Section 22A of the Kerala Minimum Wages Act, 1958 for violation of Rules 29(1) (2) and (5). 2. The action is initiated against the petitioner in the capacity as the managing partner of Sri. Vijaya Book Depot, Broadway, Ernakulam. The contention of the petitioner is that he is not a managing partner and therefore no action can be initiated against him and therefore the proceedings are liable to be quashed. In support of his contention he has produced the Crl.M.Cs. 708/2009 & 717/2009 -2- partnership deed entered into between him and his wife on 21.05.2004. A perusal of the said deed would reveal that the wife is the partner in management. As per clause 9, the 2nd partner shall be the working partner of the firm and she shall have the necessary powers for managing the affairs of the firm and those things are categorized into three. For that purpose she shall be paid monthly allowance of Rs. 8,000/- as well. So the management and running of the business is entrusted to Smt. Sandhya G. Bhatt as per the terms of the partnership deed. The person who shall represent the partnership in litigation also as per clause 3 of clause 9 is the managing partner. Unfortunately the prosecution is initiated against a wrong person. Though legally the petitioner have a strong case, morally he has not done the right thing and especially being an advocate, when he receives a notice, he should have intimated the authorities about the real state of affairs. This can only be expressed and nothing can be done further. 3. But in the light of the factum that the prosecution is to be launched against the managing partner and as it is initiated Crl.M.Cs. 708/2009 & 717/2009 -3- against a wrong person, the prosecution will not lie and therefore all further proceedings in S.T.2188/2008 and S.T. 2187/2008 of the Judicial First Class Magistrate Court-II, Ernakulam are quashed. The Crl.M.Cs are allowed as above. M.N. KRISHNAN, JUDGE vkm