UNION OF INDIA Vs. GAEKWAR MILLS COMPANY LIMITED

JUDGEMENT

(1.) All these appeals are filed against separate orders of discharge passed by the learned Judicial Magistrate (First Class) at Gandevi in Criminal Cases Nos. 2274 of 1983 to 2278 of 1983 discharging respondents Nos. 2 to 8 herein from the offence punishable under Sec. 14 read with Sec. 14-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (the Act for brief). Common questions of law and fact are found arising in all these matters. I have therefore thought it fit to dispose of all these appeals by this common judgment of mine.

(2.) The facts giving rise to these appeals move in a narrow compass. Respondent No. 1 herein is a company registered under the Companies Act, 1956 (the Company for convenience). Respondent No. 2 herein was its Managing Director and respondents Nos. 3 to 8 herein were its Directors at the relevant time. The Company was liable to deposit the provident fund contribution for its employees, family pension contribution, deposit link insurance scheme contribution, admnistrative charges and other dues under the Act. It appear that, for the period from May 1983 to July 1983, the Company made default in payment of these amounts to the concerned authority under the Act. Thereupon, a show cause notice was issued and thereafter the company deposited the due amount with penal interest after the delay ranging between two to five months. Thereafter, the Provident Fund Inspector filed his complaint in the court of the Judicial Magistrate (First Class) at Gandevi charging respondents Nos. 1 to 8 herein with the offence punishable under Sec. 14 read with Sec. 14-A of the Act. Separate complaints were filed for separate dues payable under the Act. These complaints were registered as Criminal Cases Nos. 2274 of 1983 to 2278 of 1983. It appears that on behalf of respondents Nos. 2 to 8 herein a sort of written statement was filed mentioning therein the grounds of delay in making the due payments under the Act and it was also contended therein that respondents Nos. 2 to 8 were not penally liable under the Act. It was taken on the record of the trial court as Exh. 4 in each case. Later on, on behalf of respondents Nos. 2 to 8, an application for discharge was made on 9th July 1984 at Exh. 10 on the record of each case. After hearing arguments, by the order passed therebelow on 25th July 1984, the learned Judicial Magistrate (first Class) at Gandevi discharged respondents Nos. 2 to 8 from the offence punishable under Sec. 14 read with Sec. 14-A of the Act. That aggrieved the provident fund authorities. The Union of India on their behalf has preferreds all these appeals under Sec. 387 of the Code of Criminal Procedure, 1973 (the Code for brief) for questioning the correctness of the aforesaid orders of discharge.

(3.) Learned Additional Standing Counsel for the Central Governments Shri Patel for the appellant has urged that the order of discharge cannot be sustained in law in view of the binding ruling of the Supreme Court in the case of Srikanta Datta vs. Enforcement Officer, Mysore, reported in AIR 1993 Supreme Court at page 1656. Learned Counsel Shri Patel has invited my attention to From No. 5-A filed by and on behalf of the Company under the Employees Provident Fund Scheme 1952 (the Scheme for convenience) at page 45 on the record of the Paper Book. In column 14 thereof is mentioned the name of respondent No. 2 in eachappeal as the Managing Director of the Company as the person in charge of and responsible for the conduct of the business of the company. In that view of the matter, runs the submission of learned counsel Shri Patel for the appellant, the learned trial Magistrate was not justified in discharging the concerned accused, more particularly accused No. 2 (respondent No. 2 in each appeal). Learned Additonal Public Prosecutor Shri Bukhari for the State Government (respondent No. 9 in each appeal) has adopted the submissions urged before me by learned counsel Shri Patel for the appellant. As against this, learned advocate shri Gandhi for respondents Nos. 1 to 8 in each appeal has submitted that the appeal in each order of discharge is not maintainable. Learned advocate Shri Gandhi for respondents Nos. 1 to 8 in each appeal has further submitted that the alleged default occurred in the middle of 1983 and the due amount has admittedly been paid up with interest including penal interest and it would not be desirable to reopen the case after passage of 13 years. In support of his aforesaid submission, he has relied on the binding ruling of the Supreme Court in the case of Adoni Cotton Mills Ltd vs. Regional Provident Fund Commissioner, reported in 1995 Supp. (4) SCC at page. 580.