K.S.SUSHAMA DEVI Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused No. 4 and 6 came up against Ext.A3 final report alleging offence under Section 406 IPC and the further proceedings in C.C.No.1528/2013 of Judicial Magistrate of First Class II, Cherthala (Annexure A3). They claims that they are the sleeping partners and as such, not responsible for the non-payment of provident fund contribution from May, 2007 to October, 2008. Relying on the decision in Gopalakrishna Pillai v. State of Kerala (2016 (2) KHC 338), they advanced a case that the sleeping partner would not come under the purview of 'employer' and as such, there cannot be any liability to pay provident fund.

(2.) Partnership is a joint business of several persons. As such, there cannot be any exclusion of liability among the partners. The business carried on under the partnership should be treated as the personal business of each and every partner. Hence the liability is extended to all partners. The rationale applied in the above said decision is at the stage of revision by analysing the evidence and dispute involved in the case. The question whether accused No.4 and 6 are only sleeping partners and they are not entitled to share any profit out of the joint business yet to be decided based on the evidence to be adduced. A mere incorporation of the word 'sleeping partner' would not relieve a partner who is entitled to share of profit of business from the liability arising out of the joint business. A defence available to the accused either before the trial court or before the first appellate court or in revision may not be sufficient to invoke the inherent power under Section 482 Cr.P.C. It is not permissible to usurp the powers of the trial court, appellate court or revisional court under Section 482 Cr.P.C. and that is not the real intent and purport of Section 482 Cr.P.C. It is submitted that the entire amount due already remitted and a discharge petition - C.M.P.No.2955/2017 submitted before the trial court.

(3.) Without prejudice to the right to proceed with the said petition, both the Crl.M.Cs. are dismissed.