IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 Crl.Rev.Pet.No. 3504 of 2008() ----------------------------------------- ORDER DATED 29/04/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MAVELIKKARA .................... REVN. PETITIONER/ COMPLAINANT -------------------------------------------------- E.S.I CORPORATION, REPRESENTED BY THE MANAGER, BRANCH OFFICE, E.S.I CORPORATION, KAYAMKULAM. BY ADV. SRI.T.V.AJAYAKUMAR RESPONDENT/ ACCUSED ------------------------------------ SRI.K.N. RAJENDRAN, PROPRIETOR, M/S. RAHUL MATCH WORKS, INDUSTRIAL ESTATE, KOLLAKADAVU, MAVELIKKARA, ALAPPUZHA DIST. (RESIDING AT KOYKONATHU KRISHNAVILASAM,THUMPOMON.P.O,PANDALAM, PATHANAMTHITTA DISTRICT). BY THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3504 OF 2008 ------------------------------------------ Dated this the 6th day of November, 2008 O R D E R Revision petitioner is the complainant in the complaint filed before Judicial First Class Magistrate Court, Mavelikkara. Complaint was filed against the proprietor of M/s.Rahul Match Works, Kulakkadavu alleging commission of offences under section 85(a) and (e) of E.S.I. Act, 1948. Learned Magistrate on 29.4.2008 returned the complaint with the following order: “Complaint received. On verification it is seen that the complaint is barred by limitation to take cognizance”. Revision is filed challenging the order dated 29.4.2008. 2. Learned counsel appearing for petitioner was heard. As the learned Magistrate did not issue summons to the accused before passing the order, it is not necessary to issue notice to first respondent. 3. Learned counsel appearing for petitioner relying on the decision of this Court in Velayudhan v. E.S.I. Corporation (ILR 1990(3) Kerala 928) argued that learned Magistrate was CRRP3504/08 2 not justified in holding that the complaint is barred by time when the offence under sub section (a) of section 85 is a continuing offence. Relying on the decision of High Court of Karnataka in Employees' State Insurance Corporation v. M.P. Mohammed Ali (99(II)LLJ 911) it was argued that an offence under section 85(e) is also a continuing offence and therefore the order is to be set aside and the learned Magistrate is to be directed to take cognizance of the complaint. 4. His Lordship (as his Lordship then was) was considering the question whether an offence under section 85(a) is a continuing offence in Velayudhan's case (supra). Though it was contended that as contribution to the fund should be paid as per Regulation No.31 within 21 days of last wage period in which contribution fall due and therefore the period of limitation will start from the last day for payment it was held that the failure has a recurring character and failure does not stop with the expiry of one single day, unless the contribution is paid in the meanwhile. If there was failure on the first day after the expiry of the period, there would be again failure on the next day. The employer who fails to make contribution on the last day, cannot say that since the last day is over, he has no CRRP3504/08 3 statutory liability to pay the contribution any more and if he continues to fail to pay the contribution, the offence shall continue. It was therefore held that an offence under section 85 (a) is a continuing offence. The same principle is to be applied for an offence under section 85(e) also. In such circumstances learned Magistrate was not justified in returning the complaint. The impugned order is illegal. The order dated 29.4.2008 is set aside. Learned Judicial First Class Magistrate, Mavelikkara is directed to take cognizance of the complaint and proceed in accordance with law. Send the original complaint to Judicial First Class Magistrate, Mavelikkara for proceeding in accordance with law. Petitioner is directed to appear before learned Magistrate on 2.12.2008. Revision is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-