IN THE HIGH COURT OF JUDICATURE AT MADRAS (CRIMINAL ORIGINAL JURIDICTION)

Cri. OOP. No. 22258, 22370, 22374, 22377, 22378,

22379, 22380, 22381, 22383 & 22384 of 2023

Mrs. Jayapradha (F/aged 62 years)

Wife of Mr. Srikanth Nahata, 117-a Mia Colony, Banjara Hills, Kairatabad, Hyderabad-500 034.

.. .Petitioner/Petitioner/appellant in Crl O.P.s 22379,

22380, 22381, 22383, 22384/2023

1. Jayapradha Cine Theatre (Al)

Represented by its Partner

Mr. Raj Babu, 38, General Patters Road, Chennai.

2. Raj Babu (M/agaed 66 years) Partner (A-4)

117-a Mia Colony, Banjara Hills, Kairatabad, Hyderabad-500 034.

Petitioners/Petitioners/Appellants in Crl O.P.s 22258, 22370, 22374, 22377, 22378 /2023

-vs-

Employees’ State Insurance Corporation,

Represented by Insurance Inspector (Legal)

Panchdeep Bhavan, No. 143, Sterling Road, Chennai – 600 034.

Respondent/Complainant in all the Crl OPS

COMMON COUNTER AFFIDAVIT FILED ON BEHALF OF RESPONDENT

1. I, G. Kannan, son of Shri. K. Govindaraj, aged about 23 years, Social

Security Officer (Legal), E.S.I. Corporation, having office at No. 143, Sterling

Kannan

KANNAN

Road, Nungambakkam, Chennai — 600 034, do hereby solemnly affirm and sincerely state as follows.

2. I am working as Social Security officer (Legal) of E.S.I Corporation, appointed under the ESI Act, 1948, and as such I am conversant with the facts and circumstances of this case and authorized to file this Counter Affidavit on behalf of the Respondents.
3. Save those that are specifically admitted herein all other averments, allegations and contentions of the Petitioner contained in his Affidavit are denied and the Petitioner is put to strict proof of the same.
4. It is submitted that the petitioner has prayed to set aside the order dated: 11-09-2023 by the Principal District and Sessions Judge, Chennai in the Criminal Miscellaneous Petitions (Crl M.P) filed in the respective Criminal Appeals (C.A.) which are filed by the petitioner before the Principal District and Sessions Judge against the imprisonment pronounced in the Judgement of the C.C. Cases before the MM Court, Egmore.
5. Before traversing onto the Para-wise comments, the following details are submitted by the Respondent:
6. a) It is humbly submitted that since the Petitioner failed to pay Contribution as required under Section 40 read with Section 39 of ESI Act or failed to submit the Return of Contribution, the Respondent ESI Corporation had filed the following 5 prosecution cases against the Petitioner in the Hon’ble Il Metropolitan

Magistrate Court, Egmore.

1. CC No. 745/05 U/s 85(a) for the period from 10/02 to 3/03 for

Rs. 52982/-

2. CC No. 746/05 U/s 85(a) for the period from 11/91-9/02-Rs. 817974/-

Gle kænnan

KANNAN

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3. CC No. 748/05 U/s 85(e) -CPE 4/03-3/04(for non-submission ofR.C.)
4. CC No. 9723/05 U/s 85(a) for the period from 4/03-9/03 for Rs. 52982/5. CC No. 9725/05 U/s 85(a) for the period from 10/03-3/04 for

Rs. 52982/-

1. b) It is submitted that M/S Jayapradha Theatre, had filed WP 3925/2008 in

M.P. 1/2008 before the Hon’ble High Court of Madras with a prayer to prohibit this office from proceeding with the criminal proceedings in the above mentioned

CC cases. The Writ petitions were dismissed for non-prosecution on 15.04.2008

• It is submitted that another WP 7039/2008 was filed by ws Jayapradha Theatre before the Hon’ble High Court of Madras with a prayer to prohibit this office from proceeding with the criminal proceedings in the above mentioned CC cases till the disposal of the claims of the petitioner in the New Amnesty Scheme. The said writ petitions were dismissed on 19.01.2011 and the court had taken a stand that the present attempt of the petitioner to stall the criminal prosecution solely on the ground of application for grant of amnesty was pending cannot be countenanced.

1. It is submitted that two Writ Petitions in WP 5525 and WP 5526 of 2011 were filed by M/S Jayapradha Theatre before the Hon’ble High Court of Madras with a prayer to issue of a writ of prohibition, forbearing the respondents from in any manner prosecute the petitioner or its partners under the provisions of the ESI Act till the disposal of the application filed by the petitioner under the New

Amnesty Scheme 2010. The said case was also dismissed on 05.01.2012 and the Court had ordered the petitioner to approach appropriate forum and that pendency of civil proceeding cannot be bar to continue with the criminal proceedings and the Hon’ble High Court of Madras cannot issue a writ in the nature of prohibition against the court of competent jurisdiction to exercise its jurisdiction vested in it.

1. It is submitted that the petitioner had filed the Writ petition in WP

kannan

21210/2012 with the same prayer. The said case was dismissed on 23.08.2012 with a direction to consider the representation of the petitioner dated 04.02.2011 for the Amnesty Scheme within a period of 3 months.

1. It is submitted that the petitioner had filed WP 13186 to 13190 of 2013 with the same prayer and the said cases were dismissed for non-prosecution on

06.02.2014

1. It is respectfully submitted that the Petitioner had filed EIOP 86/05 disputing 45(A) for the period 10/87 to 9/89 for Rs. 422083/- EIOP 109/05 for the period 4/04 to 9/04 for Rs.61133/- , EIOP 95/05 for the period 4/03 to 9/03 and 10/03 to 3/04 for Rs. 52982/-, EIOP 86/05 for the period 4/03 to 9/03 for Rs.

52982/- and finally EIOP 29/05 for the period 11/91 to 9/02 , 10/02 to 3/03 for Rs. 817794/-. All the Five EIOPs were dismissed for default and the E.I. Court had ordered in all the orders that attitude of the petitioner shows that it is a mere fantasy to prolong the case without any proper reason. It is understood that the petitioner has no interest to conclude the case even after many adiournments and Restoration Petitioner filed had also been dismissed by the Hon ‘ble courts. Apart from above, the Petitioner had filed various Appeals / Petitions in different courts of Chennai to prolong the CC cases, however all the Appeals / Petitions were disposed off by the Hon’ble courts.

1. It is humbly submitted the following are the details of the different cases filed by the Ws.Jayapradha Theatre.

DISPOSAL OF CASES IN THE E.I. COURT IN THE YEAR 2017

SR.NO	CASE NO.	DISMISSED ON	DISPUTE
1	EIOP 29/05	20.07.2017	Disputing contribution
2	EIOP 95/05	20.0.2017	Disputing contribution
3	EIOP 109/05	21.07.2017	Disputing contribution

an nan

KANNAN

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4	EIOP 86/05	28.07.2017	Disputing contribution
5	EIOP 189/06	28.07.2017	Disputing contribution

CASES DISPOSED IN THE HON’BLE HIGH COURT FROM 2002-2013

	SR.NO		FILED YEAR		CASE NO.	DISMISSED
	1		2008		WP 38529/2008	15.04.2008
	2 3		2008 2011		WP 7039/2008 WP 5525 & 5526/2011	19.01.2011 05.01.2012
	4		2012		WP 21210/2012	23.08.2012
	5		2013		WP 13186 to 13190/13	06.02.2014
SR.NO		FILED YEAR		CASE NO.			STATUS
1		2012		CRLOP 21991/12 TO CRLOP 21995/12 (5 cases)			Disposed on 09.01.2020
2		2017		CRLOP 22862/17 TO CRLOP 22866/17 (5 cases			Dismissed on 07.09.2023
3		2018		CRLOP 1918/18 TO CRLOP 1922/18 (5 cases)			Dismissed on 15.07.2020
4		2018		CRLOP 2304/18 TO CRLOP 2308/18 ( 5 cases)			Dismissed on 15.04.2021
5		2018		CRLMP 1273/18 TO CRLMP 1277/18 (5 cases)			Disposed on 02.02.2018
6		2018		CRLOP 3000/18 TO CRLOP 3004/18 (5 cases)			Dismissed on 04.10.2021
7		2018		CRLN/P 1294/18 TO CRL1sn 1298/18 (5 cases)			Dismissed on 04.10.2021
8		2018		CRLNP 1383/18 TO CRLN/W 1387/18 (5 cases)			Dismissed on 05.02.2018
9		2018		CRLOP 3382/18 TO CRLOP 3386/18 (5 cases)			Dismissed on 22.06.2021

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10	2018	WP 2161/18	Disposed on 25.04.18
11	2018	CRLOP 3911/2018 TO CRLOP 3915/18	Dismissed on 04.10.2021
12	2018	CRLNQ 1809/18 TO CRLNP 1813/18	Disposed on 04.10.2021
13	2019	Cri 0?1356/19, Cri OP 1365/19, Cri OP1405/19, Cri OP1362/19	Disposed on 25.01.2019
14	2019	Cri OP1062/19, Cri OP 1067/19, Cri OP 1068/19, Cri OP1073/19, Cri OP 1076/19, Cri OP 1119/19, Cri OP 1110/19,	Dismissed on 20.09.2022
15	2019	Cri OP 23563/19, Cri OP 23669/19, Cri OP23673/16, Cri OP 23680/19, Cri OP 23685/19	Disposed on 14.10.19
16	2022	WP 22824/2022	Dismissed on 6.10.2023
17	2023	Cri OP 22258/23 to Cri OP 22384/2023	Pending

CASES FILED BY M/S JAVA PRADHA THEATRE IN THE PRINCIPAL SESSIONS CITY CIVIL COURT.

SR.NO	FILED YEAR	CASE NO.	STATUS
1	2018	CRLRC 4/18 TO CRLRC 8/18 ( 5 cases)	Disposed on 04.10.2018 in favour ofESIC
2	2023	C.A. No 516 to 525 of2023	Pending

6. The Respondent participated in the trial of CC cases and substantiated their actions with supporting documents. The Hon’ble Il Metropolitan Magistrate Court Judge vide its order dated 10-08-2023 had found the Petitioner as guilty for commission of offence u/s 85(a), 85(i) (b) and 85(e) of the ESI Act and the

Petitioner was convicted and sentenced to undergo 6 months simple imprisonment

6

ann

u/s 255 (2) of Cr.P.C. and the Petitioner along with other accused are liable to pay fine of Rs. 5,000/- each respectively. Out of which Rs.3000/- each is to be paid to the complainant of Compensation under Section 357 (i) Cr.P.C.

• It is humbly submitted the Petitioner had not appeared before the Hon’ble Il Metropolitan Magistrate Court during the pronouncement of judgement on 10-08-2023 even though she or her counsel was aware of pronouncement of judgement on 10-08-2023. Further the Petitioner has filed Crl.M.P.s (Criminal Miscellaneous Petitions) in Criminal Appeals before the Sessions Court to suspend the sentence in CC cases (Calender cases) by the Hon’ble Il Metropolitan Magistrate Court with frivolous ground of health issues without substantiating with evidence. Even the Petitioner did not appear before the Sessions Court during the pronouncement of judgement. Hence, the Sessions court vide its order dated: 11-09-2023 has rightly dismissed the Crl.M.P.s (Criminal Miscellaneous Petitions) in C.A. (Criminal Appeals) filed against the CC cases (Calender cases) as not maintainable. The Hon’ble Judge, inter alia, observed in the Judgement that:

” It is the admitted case of the petitioner / accused no. 2 that no petition u/s

389(3) Cr.P.C. for suspending the sentence was filed on behalf of the Petitioner/ 2^nd accused on the date ofjudgment and the sentence cannot be suspended since the convicted accused was not personally present before the trial court. Even today, the Petitioner / 2^nd accused has not come forward to surrender before this court. Once conviction warrant has been issued, the sentence cannot be suspended by the trial court and also the appellate court and the only remedy available to the Petitioner / accused is that he has to surrender and sought for bail. ”

8. Hence it can be fairly concluded that the impugned order in Crl.M.P.s

(Criminal Miscellaneous Petitions) in C.A. (Criminal Appeals) filed against the

7 learcnan CC cases (Calender cases) is fair, well-reasoned and in accordance with law.

9. It is submitted that as to paras 1 & 2 are the address of Petitioner and respondent and hence no comments to offer.
10. It is submitted that as to para 10, it is correct to say that the Petitioner has paid contribution amount of Rs. 8,17,794/- but this establishes that the Petitioner has admitted the offence of non payment of contribution. Hence the Hon’ble Il Metropolitan Magistrate Court has rightly imposed the sentence to the Petitioner.

• It is humbly submitted that the Petitioner has not paid total amount of ESI dues of Rs. 37, 68,977/- till date. Further, since the Petitioner has paid the contribution belatedly, damages action under Regulation 3 IC of ESI General Regulation, 1950 has also been initiated against the Petitioner. The following are the dues pending from the petitioner excluding damages.

Period	Contribution due	Total interest due (as on 27.09.2023	Damages	Total Dues (as on 27.09.2023)
12/85 to 03/88	0	54,429		54,429
04/88 to 09/88	0	19,852		19,852
10/88 to 09/89		43,657		43,657
10/89 to 10/91	0	66,316		66,316
10/88 to 09/89	0		19,931	19,931
10/87 to 03/88	0		8,422	8,422
11/91 to 09/02
10/02 to 03/03
04/03 to 09/03	O
10/03 to 03/04
04/04 to 09/04	61,133
10/04 to 03/05	61,133
06/06 to 09/06	40,756	80,663
			28,353

Plus further interest @ Rs.58.62 per day from 28.09.2023 up to the date of payment

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12. It is humbly submitted that as to para 4, the averments of the Petitioner that she has never committed any office is denied. Further the averment of the Petitioner that she was not aware of the accounts of the firm or the Petitioner was also not aware of the fact that any contribution to be remitted by the Firm under the ESI Act was remitted on time, are not admitted and they are hereby denied as it is the responsibility of the Petitioner to prove their contention with material evidence, however she failed to do so inspite of sufficient opportunity were granted to substantiate the same. Hence the Hon’ble Metropolitan Magistrate Court has rightly disregarded the contention of the Petitioner.
13. The averments made by the Petitioner in paras 6 to 8 and 11 are not admitted and they are hereby denied. It is humbly submitted that the Petitioner has not submitted any proof in respect of their contention. Moreover, if she informed her counsel to submit the fact before the Hon’ble Il Metropolitan Magistrate Court, the said counsel should have informed about the same to the Hon’ble court. Hence the Petitioner has to blame herself for their act.
14. As to para 12, it is humbly submitted that the Petitioner should have informed about her health condition to the Hon’ble Il Metropolitan Magistrate Court however, she has neither presented herself before the Hon’ble court nor intimated through her counsel to the Hon’ble court, hence the averment of the Petitioner does not hold water and judgement pronounced by the Hon’ble court is fair, valid and in accordance with law.
15. It is submitted that the averment of the Petitioner in para 13 of the affidavit are statement of facts and the Petitioner may be put to strict proof of the same.

                 lean nar)               9

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16. It is humbly submitted that as to para 14 and 15, since the Petitioner again not personally presented before the Hon’ble Sessions court, the Hon’ble court has dismissed the Crl.M.P.s (Criminal Miscellaneous Petitions) as non maintainable.
17. (i) As to grounds (A), (B), (D) and (I), it is respectfully submitted that the order of the Hon’ble Court is based upon facts and documentary evidences.

• As to ground (C), it is humbly submitted that the Petitioner has not personally presented before the Hon’ble Il Metropolitan Magistrate Court and submitted any proof in support of her contention, hence the order of Hon’ble Il Metropolitan Magistrate Court is fair, valid and in accordance with law.
• As to ground (E) to (H), it is humbly submitted that the Petitioner has alleged some health issues of his brother for not attending the Hon’ble Metropolitan Magistrate Court but she has not submitted any reasons for not attending the Sessions court, hence Session Court has rightly dismissed their Crl.M.P.s (Criminal Miscellaneous petitions).

18. In the light of the afore-mentioned submissions, the Respondents humbly pray that this Hon’ble Court may be pleased to dismiss the Crl.O.P.No. 2258, 22370, 22374, 22377, 22378, 22379, 22380, 22381, 22383 & 22384 of 2023 with cost thus render justice.

Dated at Chennai this 11th day of October, 2023. G , karunan

1. KANNAN

SOCIAL SECURIT OFFICER E.G.’. CORPORATION

– 34 REGIONAL OFFICE, CHENNAI -34 RESPONDENT

Solemnly affirmed at Chennai on this

1 1 ^th day of October 2023 and signed his name in my presence. BEFORE ME

ADVOCATE:

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IN THE HIGH COURT OF

JUDICATURE AT MADRAS

(CRIMINAL ORIGINAL JURIDICTION)

Cri. O.P. 22377,

22378, 22379,22380, 22381, 22383 & 22384 of 2023

Mrs. Jayapradha (F/aged 62 years) Wife of Mr. Srikanth Nahata,

117-a Mia Colony, Banjara Hills,

Kairatabad,

Hyderabad-500 934.

And two others

Petitioners/Petitioners/Appellants

-vs-

Employees’                       State               Insurance

Corporation,

Represented                          by               Insurance

Inspector (Legal)

Panchdeep Bhavan, No. 143, Sterling Road, Chennai – 600 034.

Respondent

COUNTER AFFIDAVIT FILED ON

BEHALF OF RESPONDENT

1. N. C. KAUSHIK (E.NO. 135/99)

(COUNSEL FOR RESPONDENT)

Mobile : 93810 55720

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