1. Petition under Section 482 of the Code of Criminal Procedure. Petitioner is the accused in ST No.51 of 2005 on the file of the Judicial Magistrate of the First Class, Haripad. The first respondent herein, the Assistant Labour Officer, Kayamkulam, filed Annexure-III complaint before the lower court against the petitioner alleging offence under Section 29 of the Kerala Shops & Commercial Establishments Act (hereinafter referred to as 'the Shops Act') with a plea that the petitioner, who is the President of the Kandalloor Farmers Service Co-operative Bank Ltd. No.1410, Kandalloor P.O, (hereinafter referred to as the Bank) is an employer coming under the definition of Section 2(7) of the Shops Act, the Bank is a commercial establishment as defined under Section 2(8) of the Shops Act and that on 22.7.2005 when the first respondent, who is an inspector appointed under Section 25 of the Shops Act, inspected the above establishment, it was found that the petitioner had violated the provisions of the Shops Act and Rules thereunder as he failed to apply for registration under Section 5A of the Shops Act and that though a show cause notice caused on 5.5.2005 was accepted by the petitioner, the petitioner had not rectified the defect till date and therefore, the petitioner had violated the provisions of the Shops Act and is punishable under Section 29 of the Shops Act.

2. The learned Magistrate took cognizance and issued process. Assailing the order taking cognizance and seeking an order to quash Annexure-III complaint, this petition is filed.

3. The plea of the petitioner is that the petitioner would not come with the definition of the employer under the Shops Act, the bank would not come with the definition of the establishment under the Shops Act, the bank would come within the exemption under Section 3(1)(f) of the Shops Act and that he is only the head of a governing body coming under Section 2(e) of the Kerala Co-operative Societies Act (hereinafter referred to as the 'Societies Act') under which the Bank was established and therefore, he is not liable to be prosecuted under the Shops Act.

4. I have heard Advocate Sri.K.Anand, the learned counsel appearing for the petitioner and the learned Government Pleader, Smt.S.Hyma. The documents were perused.

5. The fact that the petitioner is the President of the Bank and that the Bank was not registered under Section 5A of the Shops Act are not in dispute. Therefore, the question is whether the above bank would come within the purview of the Shops Act and whether the petitioner would come within the definition of the employer under the Shops Act.

6. For a correct appraisal of the case, a reference to sub clauses 4, 7 and 8 of Section 2 of the Shops Act, which defines commercial establishment, employer and establishment, which read as follows would be relevant.

“2. Definitions:- In the Act, unless the context otherwise requires xxxxxxxxxxx xxxxx xxxxx xxxxx

(4) "commercial or establishment" means a commercial or industrial trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such other establishment as the Government may, by notification in the Gazettee, declare to be a commercial establishment for the purposes of this Act, but does not include a factory to which all or any of the provisions of the Factories Act, 1948 (Central Act 63 of 1948) apply.

xxxxxxxx xxxx xxxx xxxxx xxxxx xxxxx

(7) "employer" means a person owning, or having ultimate control over the affairs of an establishment and includes the manager, agent or other control acting an person in the general management or of establishment.

(8) "establishment" means a shop or a commercial establishment.

Clause 4 quoted above would show that a banking establish