V.P. Ponnusami vs State

A. Raman, J.—This Criminal Revision Case is preferred against the order of the I Additional Sessions Judge, Salem, made in Crl. Appeal

No. l of 1993, which in turn was filed against the conviction and sentence imposed by the Judicial Magistrate No. 2, Sankari in S.T.C. No. 2682

of 1989. The facts leading to the filing of this complaint are as follows: On 16.5.1989 at 3:30 p.m. the complainant along with one Ponnusami

inspected the premises at No. 1/178, Chakilikadu, Sankagiri Road, Pallipalayam and found that a motor with the capacity of 15 Horse Power was

running for the manufacture of cotton clothes and yarn and that there were 16 labourers employed in that process. Holding that the factory owner

had not obtained any permission u/s 6(l), Rules 3 and 6(1) read with Rule 4 of Factories Act and alleging that there is a contravention of the

provisions of the Factories Act, the complaint was filed before the Judicial Magistrate, Sankari. The learned Magistrate took the complaint on file

and after trial found the accused guilty of the offences charged against him and sentenced him to pay a fine of Rs. 1,000/- under two heads, in

default to undergo imprisonment for a period of three months. Aggrieved, by the said conviction and sentence, the accused preferred an appeal in

C.A. No. l of 1993 to the District and Sessions Judge, Salem, who, after hearing both the parties rendered a judgment, confirming the conviction

and sentence imposed by the lower court. Hence the Revision.

The two points now urged by the learned senior counsel for the revision Petitioner are that the complaint is barred by limitation and that there is

no proper service of show cause notice.

With regard to the question of Limitation we find from S. 106 of the Factories Act that it is incumbent upon the complainant to make the

complaint within three months from the date on which the commission of offence was found out or came to the knowledge of the complainant.

Here, the date of inspection by the Inspector of Factories is said to be on 16.5.1989. The complaint does not proceed to say that the offence is

continued to be committed. The complainant did not go court on such a ground. The specific case is that on the date of inspection, namely, on

16.5.1989, it was detected that the manufacturing operation was carried on and that no licence had been obtained as per the provisions of

Factories Act and as such there is contravention of the relevant provisions of the Act. The learned Government Advocate relies upon the entry in

Ex.B5 at page 17, and contend that the complaint had been handed over in the office of the Judicial Magistrate, Sankari, and therefore the

complaint has been made within the prescribed period of limitation. But when we peruse the complaint we do not find any seal of the court, to

show that it was received by the court on 14.8.1989. On the other hand the seal is dated 22.8.1989. It is definitely beyond the period of three

months contemplated u/s 106 of the Factories Act. In this connection, it is to be pointed out that Section 106 says that the complaint should be

made in the proper form and to the proper court. Merely showing it in the office and obtaining a seal in the register maintained by them will not

amount to presentation of the complaint. The presentation must be in a manner known to law. But, here the presentation has not been made either

to the Head Clerk or to the presiding officer in person. It is not filed in the Registry of the Court. There is no proper filing of die complaint in Court.

But, on the other hand, it has been handed over to one P.K. Rajagopalan, member of the staff on 14.8.1989. But this endorsement does not bear

any office seal, and it is not a register maintained in the Judicial Magistrate Court, Sankari. Therefore, mere obtaining of the signature of the

member of the staff in a private register maintained by the complainant will not amount to presentation of the complaint and it is not a valid one in

the eye of law. Thus, there is a legal flaw with regard to the presentation of the complaint. As the seal affixed bears the date 22.8.1989, it has to be

deemed for all purposes that it is presented only on 22.8.1989. The member of the staff concerned to whom it is said to have been handed over

has not been examined to show that he received it on that date and put it up before the Magistrate for orders. What happened to the complaint

from 14.8.1989 to 22.8.1989 is not explained. Thus, there is an area of doubt in that regard.

The learned Government Advocate contended that the question of limitation was not urged before the lower court. But I find from the judgment

of the lower court that this point was raised and in fact it has been referred to in the judgment of the lower court. Therefore, the argument that for

the first time this question of limitation is urged court is untenable. Therefore, on the question of limitation, it has to be held that the complaint has

not been preferred within three months as contemplated u/s 106 of the Factories Act. Therefore, the court is not competent to take the complaint

preferred beyond the limitation and conduct a trial upon the same. Therefore, on this short question of limitation, the revision has to be accepted.

The other point contended is that there is no proper service of show cause notice. In that regard also we find certain discrepancy in the case of the

complainant. Inasmuch as I have held that the complaint is not preferred in time, this point does not loom large for consideration. The learned

senior counsel for the revision Petitioner did not urge any other point seriously. Therefore, I hold that the complaint is not filed within time and

therefore the entire proceedings is thus vitiated and consequently conviction is liable to be set aside.

In the result, the revision petition is allowed. The sentence and conviction passed by the lower court are hereby set aside. The fine, if any paid

will be refunded to the Petitioner. Consequently, no order is necessary in Crl.M.P. No. 7 of 1994.