IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL REVISION PETITION No.657/2011 BETWEEN 1. Ramu B., S/o. Chinnaswamy Aged about 61 years, 2. Suresh S/o. Ramu B., Aged about 37 years, 3. Raghavendra, S/o. Ramu B.
Aged about 40 years, 4. Ranganatha, S/o. Ramu B., Aged about 40 years, 5. Smt. Subbamma, W/o. Ramu B., Aged abut 58 years, Petitioner Nos.1 to 5 are residing at No.136, 5th Cross, Ramaiah Layout, Kammanahalli, Bangalore 6. Shankar S/o. Ramusheregar Aged about 48 years, R/at No.26, Pillanna Road, Kacharakanahalli, Bangalore.
7. M/s. Shanthi Sagar, No.14/15, Bayanna Layout, Kammanahalli Main Road, Near Jalavaya Vihar, Bangalore Rep. by Ramu B.
(BY SRI ANAND R.V., ADVOCATE) AND E.S.I. Corporation, No.10, Binny Fields, Binnypet, Bangalore Rep. By Insurance Inspector ... PETITIONERS ... RESPONDENT (BY SMT. GEETHA DEVI M.P., ADVOCATE) This Petition is filed U/S.397 of Cr.P.C., praying to set aside the order dated 13.04.2004 passed by the P.O. Spl. Court for Economic Offences, Bangalore in C.C. No.526/03 and Order dated 14.01.2011 passed by the P.O. FTC-VIII, Bangalore City in Crl.A. No.649/2004.
This petition coming on for Hearing, this day, the Court made the following:-
ORDER Heard the learned counsel for the petitioners.
2. Petition is filed under Section 397 of Cr.P.C., seeking to set aside the judgment of conviction passed by the Special Court for Economic Offences at Bengaluru in C.C. No.526/2003, which has been confirmed by the Court of FTC-VIII, Bengaluru in Criminal Appeal No.649/2004 dated 14.01.2011. By the impugned judgments, the petitioners herein are found guilty of the offence punishable under Section 85(i)(b) of the ESI Act and sentenced to undergo Simple Imprisonment for a period of 6 months and to pay fine of Rs.5,000/- each, in default to undergo Simple Imprisonment for further period of 3 months each. Out of fine amount realized, 50% is ordered to be paid to the complainant as compensation.
3. The offence proved against the petitioners is that the petitioners failed to pay the contributions in accordance with Section 39 of ESI Act for a period from 01.02.2000 to 30.09.2000 as required under Section 40 of the ESI Act read with Regulations 29 and 31 of General Regulations, 1950.
4. The petitioners having deposited the contributions with the ESI, during the pendency of this petition, a submission was made before this Court that the petitioners are entitled to the benefit of Amnesty Scheme which was in force at the time when the prosecution was launched against the petitioners. In view of the said submission, by order dated 25.04.2014 the counsel for the respondent were directed to ascertain from the Corporation whether the Amnesty Scheme was under force and whether the benefit of said Scheme could be extended to the petitioners.
5. The learned counsel appearing for the respondent having not responded to the said directions, by order dated 13.12.2018 once again the learned counsel for the respondent were directed to obtain instructions as to whether the petitioners are entitled to the benefit of the said Scheme.
6. Today, when the matter is taken up for hearing, the learned counsel for the petitioners has produced copy of the Communication dated 25.01.2019 issued by the Deputy Director(L) of Employees Insurance Corporation, Binnypet Bangalore, which reads as under:
“Sub: Crl.R.P. No.657/11 filed by M/s. Shanthi Sagar-reg.
With reference to the above, please find enclosed herewith the employer’s letter dated 14.01.2019 which is self explanatory. Further, it is informed that an amount of Rs.70,000/- paid by the employer vide D.D. No.687618 dated 24.04.14 drawn on Union Bank of India, Hennur Branch has been realized on 29.05.14 and as per the Headquarter circular dated 03.03.2014, the New Amnesty scheme was in force only for the period from 28.01.14 to 27.01.15.
Yours faithfully, Encl: As Above, Sd/-
DY. DIRECTOR(L)”
7. The learned counsel for the petitioners has referred to the decision of the Hon’ble Supreme Court in the case of Sreekantadatta P.S. vs Employees’ State Insurance – (2001) IILLJ 429 SC, wherein considering identical facts, the Hon’ble Supreme Court has set aside the conviction awarded to the accused therein. In Para Nos. 2 and 3 of the said order, the Hon’ble Supreme Court has observed as under:
“2. It is unnecessary for us to consider the sustainability of the conviction and sentence from any legalistic point of view. The Employees' State Insurance Corporation has introduced a scheme called "Amnesty Scheme for withdrawal of Criminal Cases Against the Insured Persons and Employees filed under Sections 84 and 85 of the ESI Act, respectively". The said scheme was introduced on February 1, 2000 which was applicable to persons against whom prosecution was pending till July 31, 2000. Appellant was desirous of availing himself of the benefit of the said scheme. He complied with the conditions specified in the scheme and then he prayed for withdrawal of the prosecution by letter dated April 19, 2000. The difficulty pointed out against the appellant was that the High Court judgment was dated January 27, 2000 by which he was convicted and the scheme was introduced only 4 days thereafter.
3. The interval between the date of judgment and introduction of the scheme is too insignificant for denial of the benefit to the appellant, though special leave petition was filed by the appellant subsequent thereto. Hence, we are inclined to push this appellant also into the purview of the scheme. The result of that exercise is that the prosecution launched against the appellant would stand withdrawn. As a corollary we state that the appellant need not go back to jail for undergoing the sentence of imprisonment.”
8. The letter produced by the learned counsel for the petitioners referred above clearly indicates that the benefit of that new Amnesty Scheme was in force from 28.01.2014 to 27.01.2015. Since, the prosecution against the petitioners was pending during this period the petitioners are held entitled to the benefit of the said scheme. Consequently, this petition deserves to be allowed.
9. Accordingly, petition is allowed in part.
The conviction of the petitioners for the offence punishable under Sections 85(i)(b) of the ESI Act is confirmed. However, by virtue of extension of the benefit of the Amnesty Scheme, the sentence imposed against the petitioners is set aside.
Sd/- JUDGE SBS*