SHARAD MITTERSAIN JAIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BOTH the applications are being decided by a common judgment and order because they are revolving around the same cause of action, that is, not depositing the amount of provident fund deducted from the employees by the public limited company where those employees were employed. In both the applications, the applicants are assailing the propriety, legality and correctness of the order passed by the j. M. F. C. Sangli who entertained the complaints filed by Shri J. B. Doiphode, provident Fund Inspector against the applicants in the said Court alleging that they had committed the offence punishable under provisions of Section 406 of Indian Penal Code.

(2.) FEW facts need to be stated for unfolding the issue in debate. The applicants happened to be the Directors of Madhav Nagar cotton Mills Ltd. , District Sangli. They deducted the amount from the pay, salary and wages of the employees who were coming under the purview of the Provident Fund Act. It was alleged by Shri Doiphode that the total sum of Rs. 6,07,590/- was deducted from the pay, salary and wages of the employees coming under the purview of the said enactment pertaining to months May, June and July so far as complaint filed by him in the Court on september 8, 1994 happens to be concerned. He alleged that the sum of Rs, 27,740/- were not deposited though they were deducted from the pay, salary and wages of such employees pertaining to the month of August 1994 so far as complaint dated January 4, 1995 was concerned. The learned Magistrate issued the process in view of Section 406 of Indian Penal code and started hearing those two complaints as judicial proceedings. The applicants made a prayer for quashing those two complaints and prosecutions.

(3.) MR. Manoj Mohite placed reliance on the following two judgments: (1) Judgment of the Bombay High Court in the matter of Yeshwantrao Dattaji Chougule and Ors. Y. Slate, reported in (Cri. Misc. Application No. 23 of 1992), and : (2) Judgment of the Supreme Court in the matter of Employees' State Insurance corporation v. S. K. Agarwal and Ors. reported in AIR 1998 SC 2678 : 1998 (6)SCC 288 : 1998-1i-LLJ-794. Relying on these two judgments, Shri. Mohite submitted that the provisions of Section 2 (17) of the Employees State Insurance Act, 1948 (hereinafter referred to as ESI Act for convenience) and provisions of Section 2 (e)of Employees' Provident Funds and miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act for convenience) are pari materia. Hence in view of the judgment of the Supreme Court the learned Magistrate should not have passed the order issuing process against the applicants. He submitted further that the said order being illegal, this Court be pleased to quash the complaints and the resultant prosecutions.