SIKU INDUSTRIES Vs. C DSOUZA

JUDGEMENT

(1.) THIS petition is filed for quashing and setting aside the criminal complaints Nos. 1982, 1983, 1984, 1985 and 1986, all of 1969 and/or criminal proceedings pending before the 23rd Court of the Presidency Magistrate, Esplanade, Bombay by an appropriate writ, order or direction either under Article 226 or 227 of the Constitution and/or Under Section 561-A and/or Under Sections 435 and 439 of the Code of Criminal Procedure.

(2.) THE criminal proceedings before the Presidency Magistrate at Bombay which are sought to be quashed arise out of five complaints lodged by the Opponent No. 1 against the present petitioners for contravention of the provisions of the Employees Provident Funds Act, 1952. The petitioner No. 1 is a registered partnership firm carrying on its business under the name of Messrs. Siku Industries, Industrial Estate, Kam ptee Road, Nagpur and the petitioners Nos. 2 to 4 are the partners of the petitioner No. 1. The Opponent No. 1 is an Inspector in the Office of the Regional Provident Fund Commissioner, State of Maharashtra. The opponent No. 1 in her capacity as Inspector appointed Under Section 13 of the Employees' Provident Funds Act, 1952 lodged complaints against the petitioners for offences under paragraph 76 (a) of the Employees' Provident Funds Scheme, 1952, read with Sections 14 (2) and 14-A (1) and/or Section 14-A (2) of the Employees' Provident Funds Act, 1952. The several complaints are for the offences alleged to have been committed during different periods from the years 1966 to 1969. In all these complaints the grievance of the opponent No. 1 has been that the petitioners Nos. 2 to 4 are the persons in charge of the said establishment of the petitioner No, 1 and are responsible to it for the conduct of its business and they are thus required to comply with all the provisions of the said Act and the said scheme in respect of the said establishment. According to the complaints the petitioners-accused are under paragraph 38 of the Employees Provident Fund Scheme required to send towards the employees' provident fund account with the State Bank of India, the provident fund contributions of the employees of the said establishment together with an equal amount as employer's share and administrative charges due for every month within 15 days of the close of that month. It is further alleged that in spite of several requests the accused-petitioners failed to send the provident fund contributions for the different periods mentioned in each of the complaints and therefore, the accused No. 1 that is, petitioner No. 1 has committed offences under paragraph 76 (a) of the Employees Provident Funds Scheme, 1952 read with Section 14 (2) of the Employees' Provident Funds Act, 1952 between the said period. It is also the case of the complainant that as the accused Nos. 2 to 4, that is. the petitioners 2 to 4, were during the relevant period in charge of the said establishment and were responsible to it for the conduct of its business and/or as the aforesaid offences were committed by the said establishment with their consent or connivance and were attributable to their neglect, the said accused persons have committed the offences under paragraph 76 (a) of the Employees Provident Funds Scheme, 1952 read with Sections 14 (2) and 14-A (1) and/or Under Section 14-A (2) of the Employees' Provident Funds Act. 1952.

(3.) AFTER these complaints were entertained by the learned Presidency Magistrate, it appears he issued summonses to the accused and on the first three occasions as the copies of the order-sheets show the cases were adjourned as the accused are said to have applied for time. The adjournments were on the hearings on 11-2-1970, 11-3-1970 and 294-1970. It is, however, stated on behalf of the petitioners-accused that they had no knowledge of these proceedings on these various dates, nor did they appear before the Magistrate either in person or through counsel and never applied for time as has been recorded in the aforesaid order-sheets. Then on 13-5-1970 the learned Magistrate recorded that the accused were absent and ordered the issue of bailable warrant of Rs. 500/-against each of the accused Nos. 2, 3 and 4, that is the petitioners Nos. 2 to 4 and fixed the cases for 3-61970. The warrant was not executed by that date and then the cases were adjourned to 15-6-1970 and later on they were adjourned to 226-1970. Though the cases were adjourned to 15-6-1970, on the ground that the warrant was not executed by 3-6-1970, the petitioners contended that they appeared before the learned Presidency Magistrate through their advocate and the advocate Mr. Narendra Nath Chatterjee of Nagpur has filed an affidavit stating that on 3-6-1970 he had appeared in the said criminal cases and had filed one Vakalatnama of the petitioners and had raised a preliminary objection that the petitioners could not be prosecuted for the alleged offences committed by the previous partners of the establishment. He was asked by the learned Magistrate to file separate Vakalatnamas for the other cases and the cases were adjourned to 15-6-1970, on which date he filed the remaining 4 vakalatnamas. He also filed three affidavits duly sworn by the three accused persons and one application Under Section 205 of the Code of Criminal Procedure for exemption of the accused persons from personal appearance in the Court. It is his grievance that these affidavits and the application were not entertained by the learned Magistrate who told him that the petitioners should first present-themselves before the Court and thereafter he would record the pleas of the petitioners and then hear the prosecution witnesses and thereafter the counsel should raise whatever objections he had and argue the points which he had raised on the maintainability of the complaints in that Court. The cases were then adjourned to 22-6-1970 for the presence of the petitioners in the Court. On these happenings the petitioners then filed this petition in this Court on 20-6-1970 praying for the quashing of the proceedings before the learned Presidency Magistrate against the present petitioners in the aforesaid criminal cases. No return has been filed on behalf of the respondents.