Dismissed

Shyni K.S @ Shyni Sabu v. the State of Kerala

Kerala HC12 Oct 2020Crl.MC/2683/2017

Case brief

AI extract

What is this about?

The High Court of Kerala rejected two criminal miscellaneous petitions filed by accused who claimed to be sleeping partners exempt from liability for non-payment of provident fund contributions. The Court held that partnership liability extends to all partners and dismissed the petitions.

What did the court decide?

Both Criminal Miscellaneous Cases were dismissed; the right to proceed with the discharge petition pending before the trial court remains intact.

Shyni K.S @ Shyni Sabu Vs the State of Kerala — Property and Title | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942

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Crl.MC.No.2955 OF 2017

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AGAINST THE ORDER/JUDGMENT IN CC 1528/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA

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CRIME NO.147/2009 OF Arthungal Police Station , Alappuzha

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PETITIONERS/4TH ACCUSED:

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K.S.SUSHAMA DEVI AGED 65 YEARS, W/O. DR. N. MOHAN, PARTNER, M/S. THE KONCHERRY COIR FACTORIES, MAYITHARA MARKET PO, PIN-688 539 CHERTHALA TALUK, ALAPPUZHA DISTRICT, RESIDING AT MULAMOOTTIL HOUSE, CHARAMANGALAM, KANJIKUZHI PO, CHERTHALA, PIN CODE -688 523

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BY ADVS. SRI.K.C.ELDHO SRI.ANEESH JAMES SRI.JIJO THOMAS SRI.MALLENATHAN.M. SRI.M.REVIKRISHNAN

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN – 682 011

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2 EMPLOYEES PROVIDENT FUND ENFORCEMENT OFFICER, O/O, THE EMPLOYEES PROVIDENT FUND ENFORCEMENT, DISTRICT OFFICE, ALAPPUZHA

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3 THE SUB INSPECTOR OF POLICE, ARTHINGAL POLICE STATION, ARTHINGAL PO, PIN – 688 530, CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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R1 & R3 BY ADV.SRI. E. C. BINEESH, PUBLIC PROSECUTOR R2 BY SRI.S.PRASANTH, SC, EMPLOYEES PROVIDENT FUND ORGANISATION

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.10.2020, ALONG WITH Crl.MC.2683/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942

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Crl.MC.No.2683 OF 2017

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AGAINST THE ORDER/JUDGMENT IN CC 1528/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA

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CRIME NO.147/2009 OF Arthungal Police Station , Alappuzha

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PETITIONER/6TH ACCUSED:

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SHYNI K.S @ SHYNI SABU AGED 51, W/O.SABU SAUMYAN, PARTNER, M/S.THE KONCHERRY COIR FACTORIES, MAYITHARA MARKET P.O., PIN-688539, CHERTHALA TALUK, ALAPPUZHA DISTRICT, RESIDING AT 'SOULEKHA', TC.NO.13/1519, BERMA ROAD, KUMARAPURAM, THIRUVANANTHAPURAM.

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BY ADVS. SRI.K.C.ELDHO SRI.ANEESH JAMES SRI.JIJO THOMAS SRI.MALLENATHAN.M. SRI.M.REVIKRISHNAN

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.

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2 EMPLOYEES PROVIDENT FUND ENFORCEMENT OFFICER O/O.THE EMPLOYEES PROVIDENT FUND ENFORCEMENT, DISTRICT OFFICE, ALAPPUZHA.

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3 THE SUB INSPECTOR OF POLICE ARTHINGAL POLICE STATION, ARTHINGAL P.O., PIN-688530, CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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R1 & R3 BY ADV.SRI. E. C. BINEESH, PUBLIC PROSECUTOR R2 BY SRI.S.PRASANTH, SC, EMPLOYEES PROVIDENT FUND ORGANISATION

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.10.2020, ALONG WITH Crl.MC.2955/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.2955 OF 2017 & Crl.M.C.No.2683 of 2017

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ORDER

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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

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Pillai v. State of Kerala (2016 (2) KHC 338),

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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.

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Partnership is a joint business of

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several persons. As such, there cannot be any exclusion of liability among the partners. The business carried on under the partnership should

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Crl.MC.No.2955 OF 2017 & Crl.M.C.No.2683 of 2017

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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

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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

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who is entitled to share of profit of business from the liability arising out of the joint business. A defence available to the accused

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either before the trial court or before the first appellate court or in revision may not be sufficient to invoke the inherent power under

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Section 482 Cr.P.C. It is not permissible to

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usurp the powers of the trial court, appellate

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court or revisional court under Section 482

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Cr.P.C. and that is not the real intent and

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Crl.MC.No.2955 OF 2017 & Crl.M.C.No.2683 of 2017

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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.

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

Sd/-

P.SOMARAJAN

JUDGE

SPV

Crl.MC.No.2955 OF 2017 & Crl.M.C.No.2683 of 2017

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APPENDIX OF Crl.MC 2955/2017

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PETITIONER'S EXHIBITS:

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ANNEXURE A1 A TRUE COPY OF THE PARTNERSHIP DEED OF THE FIRM M/S.THE KONCHERRY COIR FACTORIES. ANNEXURE A2 A TRUE COPY OF THE AWARD DATED 10/11/2015 PASSED BY THE ARBITRATOR JUSTICE A.K.BASHEER (RETIRED).

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ANNEXURE A3 THE TRUE COPY OF THE FINAL REPORT IN CRIME NO.174/2009 OF THE ARTHINGAL POLICE STATION ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHERTHALA AS C.C.NO.1528/2013.

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RESPONDENTS' EXHIBITS: NIL

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//TRUE COPY//

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PA TO JUDGE

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Crl.MC.No.2955 OF 2017 & Crl.M.C.No.2683 of 2017

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APPENDIX OF Crl.MC 2683/2017

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PETITIONER'S EXHIBITS:

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ANNEXURE A1	A TRUE COPY OF THE FIRM M/S.THE KONCH	PARTNERSHIP DEED OF THE ERRY COIR FACTORIES.
ANNEXURE A2	A TRUE COPY OF THE PASSED BY THE ARBI A.K.BASHEER (RETIR	AWARD DATED 10/11/2015 TRATOR JUSTICE ED).
ANNEXURE A3	THE CERTIFIED COPY CRIME NO.174/2009 STATION ON THE FIL CLASS MAGISTRATE C C.C.NO.1528/2013.	OF THE FINAL REPORT IN OF THE ARTHINGAL POLICE E OF THE JUDICIAL FIRST OURT-II, CHERTHALA AS
ANNEXURE A4	A TRUE COPY OF THE RS.8,35,454/- ISSU RESPONDENT	DEMAND NOTICE FOR ED BY THE SECOND
ANNEXURE A5	A TRUE COPY OF THE THE SECOND RESPOND	DEMAND NOTICE ISSUED BY ENT DATED 05.07.2016
ANNEXURE A6	A TRUE COPY OF THE RS.17,36,813/- DAT	PAY ORDER FOR A SUM OF ED 26.11.2019
ANNEXURE A7	A TRUE COPY OF THE ENCLOSING ANNEXURE	COVERING LETTER A6
ANNEXURE A8	A TRUE COPY OF THE SECOND RESPONDENT THE MATTER OF PAYM PARTNERSHIP FIRM R	STATEMENT FILED BY THE IN WPC NO.28278/2011 IN ENT EFFECTED BY THE EFERRED TO IN ANNEXURE A3
ANNEXURE A9	A TRUE COPY OF THE 1154/2013	JUDGMENT IN CRL.R.P.NO.

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RESPONDENTS' EXHIBITS: NIL

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//TRUE COPY//

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PA TO JUDGE

Shyni K.S @ Shyni Sabu v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Shyni K.S @ Shyni Sabu v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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