JUDGMENT:

The Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973, is directed against the judgment, dated 16.05.2001, in C.C.No.137 of 1999, on the file of the learned Special Judge for Economic Offences, Hyderabad, whereunder and whereby, the appellant/A2 was found guilty of the offence punishable under Section 85 (g) of the Employees State Insurance Act, 1948 (for short ‘the Act’), and accordingly convicted and sentenced to pay a fine of Rs.4,000/-, in default to suffer Simple Imprisonment for a period of two months.

2. The brief facts that are necessary for the disposal of the present appeal may be stated as follows:

P.W.1, who was the Inspector of Employees’ State Insurance Corporation, Hyderabad, visited M/s. Kranthi Automobiles, Bellampally Road, Mancherial, Adilabad District, on 07.09.1994 and recommended for coverage of the unit of A1 with effect from 01.06.1994 having found that A1 employed more than 10 persons as on 01.06.1994. Thereafter, A1’s firm failed to remit the contribution as required to be paid under Section 40 of the Act covering the period from 01.06.1994 to 31.03.1995 to a tune of Rs.11,344/- and thereby violated Section 85 (a) of the Act. The proceedings under Section 45 (a) of the Act was issued against the accused, but the accused failed to give explanation to the show cause notice issued to them.

Hence, the complaint.

3. When a charge under Section 85 (a) of the Act was framed, read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried.

4. To substantiate the charge, the prosecution examined P.Ws.1 and 2 and got marked Exs.P1 to P11.

5. After closure of the prosecution evidence, appellant/A2 was examined under Section 313 of the Code of Criminal Procedure, 1973, with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the appellant/A2, D.W.1 was examined and Exs.D1 to D3 were marked.

6. After considering the evidence on record, the trial Court convicted and sentenced the accused as above. Aggrieved thereby, A2 filed this Criminal Appeal.

7. Now the point for determination is whether the second respondent/complainant proved its case beyond all reasonable doubt against the appellant/A2 for the violation of Section 85 (g) of the Act, punishable under Section 85 (ii) of the Act and whether the judgment of the trial Court is correct, legal and proper?

8. The contention raised by the learned counsel appearing for the appellant/A2 is that the appellant/A2 was not correctly described in the cause title; that A2 is not the Managing Partner of A1’s firm; that the copy of Ex.D1-Partnership Deed, dated 01.04.1994, discloses that the present appellant was not the Managing Partner of A1’s firm, and only a sleeping partner and hence, he prays to set aside the conviction and sentence recorded against the appellant/A2.

9. On the other hand, learned counsel appearing for the second respondent herein contended that all the correspondence including the show cause notice has been received by the appellant/A2; that therefore, he was also actively participating in the affairs of A1’s firm; that after elaborate consideration of the evidence on record, the trial Court rightly found the appellant/A2 guilty; and therefore, absolutely there are no grounds to interfere with the same.

10. The Criminal Appeal is dismissed in so far as the third respondent is concerned, as the appellant failed to comply with the conditional order, dated 20.04.2009, to furnish the correct address of the third respondent.

11. The only question is whether the conviction and sentence of the appellant/A2 can be set aside on the ground that he was not actively participating in the affairs of A1’s firm. Under explanation to Section 86A of the Act, the word “Director” has been defined which reads as follows:

““director” in relation to –

(a) a company, other than a firm, means the managing director or a whole-time director;

(b) a firm m