SHANTA A SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ON 7/3/1990, upon hearing the learned Counsel of both the parties, the following order was passed: For reasons stated in the accompanying judgment the Petition is allowed. RUle in terms of prayer (a ). However, the reasons were not delivered immediately as the learned Counsel for the Petitioners requested for further time to cite mere case law in support of her submissions. The same have not been submitted and hence the following reasons:

(2.) THE Petitioners are invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure to seek quashing of the process issued against them by the Metropalitan Magistrates 7th Court at Dadar in Case No. 606/p of 1986. The learned Metropolitan Magistrate has issued, the process under Sections 405 and 406 of the Indian Penal Code against the Petitioners in a State prosecution filed by the Inspector of Police, N. M. Joshi Marg Police Station on the basis of a complaint lodged in the Police Station by an Insurance Inspector appointed under section 45 of the Employees State Insurance Act, 1948 by the Employees State Insurance Corporation, Maharashtra Region, Bombay.

(3.) IT is the prosecution case that the present Petitioners are responsible for the conduct of business of an establishment, viz. M/s. Modem Fabrics, situate in the premises of M/s. Modem Textile Silk Mills Private Limited which is an establishment covered under the Employees State Insurance Act. According to the prosecution, the said establishment has a joint Code No. 31-983-6-13 issued by the Regional Office of the Employees State Insurance Corporation. It is further alleged that the employers have deducted the wages of its employees but have failed to deposit the same alongwith the employerst contribution with -the Employees State Insurance Corporation. The prosecution, therefore, relies on the Explanation II to section 405 of the Indian Penal Code and he contends that the petitioners, being the persons responsible as employers, having deducted the employees contribution from the wages payable to them towards the Employees State Insurance Fund, are deemed to have been entrusted with the said amount of contribution so deducted by them and they have made default in payment of such contribution to the said Fund in violation of the Employees State Insurance Act. They are also deemed to have dishonestly used this amount in violation of the provision of law as aforesaid. It is in these circumstances that the present petitioners are alleged to have committed offences under sections 405,406 of the Indian Penal Code. The learned Metropolitan Magistrate has issued process against the petitioners under those provisions of the Indian Penal Code and feeling aggrieved by the issuance of the said process, they have approached this Court under section 482 of the Code of Criminal Procedure.