IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 CRL.A.No. 91 of 2001() ---------------------- CC.956/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... APPELLANT/COMPLAINANT: ----------------- E.S.I.CORPORATION REPRESENTED BY THE MANAGER, LOCAL OFFICE. BY ADV. SMT.T.D.RAJALAKSHMI RESPONDENTS/ACCUSED: ------------- 1. SMT.A.CHANDRAMATHY, W/O.LATE SRI.T.TNARAYANAN, SEETHA NIVAS, TEMPLE ROAD, KANNUR -2. (MANAGING PARTNER, M/S.ANANDA KRISHNA BUS SERVICES, SPCA BUILDING, KANNUR -2). 2. M/S.ANANDA KRISHNA BUS SERVICES, SPCA BUILDING, KANNUR -670002 REPRESENTED BY ITS MANAGING PARTNER A CHANDRAMATHY. BY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. -------------------------------------- CRL.APPEAL No.91 OF 2001 --------------------------------------- Dated this the 3rd day of June, 2008 J U D G M E N T ~~~~~~~ This appeal, which is at the instance of the Employees' State Insurance Corporation, represented by its Manager, is directed against the order of acquittal passed by the trial court. By the impugned judgment, the trial court held that the appellant/complainant had failed to prove that respondent No.1/accused No.1 was the principal employer of the establishment in question (accused No.2). 2. The case of the Corporation before the court below was that accused No.1 was the managing partner of M/s Anandakrishna Bus Services, Kannur (accused No.2). The said establishment was covered under the Employees' State Insurance Act and accordingly it was assigned code No.54-1930- 106. The Corporation alleged that accused No.1, the Managing partner, being the principal employer of the establishment, had failed to remit the employees' contribution along with the employer's share for the period from November, 1992 to May Crl.Appeal.No.91/2001 2 1994. The Corporation alleged that the principal employer had deducted employees' share from their wages during the relevant period. But, the employer had misappropriated the said amount deducted from the employees' wages. Thus the two accused had committed the offences punishable under Section 406 and 409 of IPC. 3. PW1 to PW3 were examined on the side of the complainant/Corporation and Exts.P1 to P5 were marked on its side. Though no oral evidence was adduced by the defence, Exts.D1 to D4 were marked. The learned Magistrate, after a careful evaluation of the oral and documentary evidence on record, took the view that the prosecution had failed to establish the charge against the accused. It was noticed by the learned Magistrate that the documents produced by the prosecution did not, in any way, establish that accused No.1 was the principal employer. PW1, the legal inspector of the Corporation had admitted that he had assumed charge in the office at Kannur only in August, 1995. He had not visited the establishment; nor had he conducted any enquiry. The complaint was filed on the Crl.Appeal.No.91/2001 3 basis of Ext.P1 inspection report which was prepared by his predecessor. He further admitted that records would be available in the head office at Thrissur to show who was the principal employer of an establishment covered under the Act. He further conceded that any establishment covered under the Act would submit returns periodically. Form-1 will be submitted by the employer initially. Thereafter, Form-6 returns will be submitted periodically. These records will show who is the principal employer of the establishment concerned. As rightly noticed by the learned Magistrate, the Corporation had not produced any of those documents to substantiate its contention that accused No.1 was the principal employer. 4. The Corporation had placed reliance on Ext.P5 which was stated to be a photocopy of the partnership deed. PW1 admitted that he was not sure whether the said firm had been registered before the Registrar of firms. It is true, Ext.P5 showed that, accused No.1 was the managing partner of the firm. The evidence of PW2 and PW3 also did not advance the case of the prosecution in any manner. PW2 stated that Ext.P5 Crl.Appeal.No.91/2001 4 copy of the partnership deed was handed over to him by one Anandakrishnan, a partner of the firm. He also stated that the exact amount collected from the employees of the establishment could be seen from the Annexures 1 and 2 attached to Ext.P1 report. PW3 also conceded that there was nothing to show that accused No.1 had received Ext.P4 show cause notice. In short, the prosecution had not succeeded in proving that accused No.1 was the managing partner, as rightly held by the learned Magistrate. Having heard the learned counsel for the appellant and having perused the entire materials available on record, I do not find any reason to interfere with the order of acquittal passed by the court below. In my view, the learned Magistrate was justified in acquitting the accused on the basis of the materials produced by the prosecution. There is no merit in the appeal. It is accordingly dismissed. (A.K.BASHEER, JUDGE) ps Crl.Appeal.No.91/2001 5 A.K.BASHEER, J. =========================== CRL. APPEAL NO.91 OF 2001-A =========================== JUDGMENT DATED 3RD JUNE 2008 ==============================