DARPANKUMAR JITENDRABHAI SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of present revision application under Ss. 397 and 401 of the Code of Criminal Procedure, the applicants have sought following relief:-

(2.) It is the case of the applicant that the learned Magistrate ought to have considered that the Investigating Officer has no authority to investigate the offence and no cognizance could have been taken by the learned Magistrate pursuant to the charge-sheet. As the applicants are not vicariously liable for the offence without joining Viraj Polyplast Technologies Pvt. Ltd., (which shall hereinafter be referred to as "the company") which is not arraigned as an accused which is a manifest error on the record committed by the learned trial Court. He has further submitted that the complainant - Divyeshbhai Jayshrikrushna Shukal, has lodged the complaint against the applicants. The company is indulged into the business of building material as well as pre-cast concrete products,. Due to slack in the market of construction and building materials and the fluctuation in the rate of the US Dollar the company could not sustain itself and tried to make efforts of payment of the salaries of its employees and also became irregular and establishment did not resort to retrenchment as a result of which the establishment did not deduct the amount of contribution of the employees from their salaries towards the Employees Provident Fund (which shall hereinafter be referred to as "EPF") and due to this reason in turn did not deposit the same in the office of EPF and subsequently along with interest the amount came to be paid and deposited. Hence, he has requested to discharge the applicants by allowing the present revision application.

(3.) Learned APP for the respondent - State has opposed the present revision application and submitted that offences punishable under Ss. 405 and 406 of the Indian Penal Code would attract as it is the statutory duty of the employer to deposit the amount and subsequent deposit of contribution amount reveals that at the relevant point of time the offence was committed and amount thereafter the contribution was deposited and therefore the Courts below have not committed error in passing the impugned order and hence requested to dismiss the present revision application.