JENSON NICHOLSON(INDIA)LTD Vs. STATE

JUDGEMENT

(1.) This is an application under section 482 of the Code of Criminal Procedure, 1973 for quashing of proceedings in G.R. No. 2131/04 pending before the learned Chief Metropolitan Magistrate, Calcutta arising out of Shakespeare Sarani P.S. Case No. 312 dated 19.8.2004 under section 406/ 34, IPC. In the background of this revision the fact in a nutshell is that the petitioner No. 1 is a public limited company having its registered office at 7-B, Middleton Street, Calcutta-700 071. The petitioner No. 2 is a former Director in petitioner No. 1 company. At no material point of time, he was in-charge and responsible to the petitioner No. 1 company for running its day-to-day business. The O.P. No. 2 is the Enforcement Officer under the Employees Provident Fund Organisation, West Bengal. He lodged a written complaint to the Deputy Commissioner of Police, Calcutta, West Bengal alleging that during his inspection of the establishment of M/s. Jenson & Nicholson (India) Ltd. on 13.7.2004 it was noticed that the employer of the said company have deducted a sum of Rs. 9,17,883/- from the salary/wages of the employees as employees share of provident fund contribution for the period from September, 2003 to April, 2004 and have not yet deposited the amount with the statutory fund in violation of section 6 of the Employees Provident Fund & Miscellaneous Provisions Act, 1952 read with para 38 of Employees Provident Fund Scheme. According to O.P. No. 2, non-remittance of the provident fund money after deducting the employees share from the salary tantamount to an offence of criminal breach of trust under section 405 of (Explanation-1) of IPC. The O.P. No. 2 further alleged that the following persons are responsible for conduct of business of the establishment and have committed a cognizable offence under section 405 of (Explanation)-1 IPC punishable under section 406/ 409, IPC. The O.P. No. 2 as Chairman-cum-Managing Director sought his prosecution as well. In the written complaint, the O.P. No. 2 enclosed 'P/1' giving details of employees share deducted from the salary of employees amounting to Rs. 9,17,883/-.

(2.) On the basis of written complaint, a notice under section 91 of the Code of Criminal Procedure was issued to the petitioner No. 1 company calling upon the petitioner No. 1 company to produce salary register of the employees and Form No. 5-A in respect of petitioner No. 1 company. On 10.9.2004, the Enforcement Officer seized from registered Office of the company (i) Form No. 5-A in respect of M/s. Jenson Nicholson (India) Ltd. and (ii) Bank deposit slip of Standard Chartered Bank in favour of the petitioner No. 1 company M/s. Jenson & Nicholson (India) Ltd. Employees Provident Fund of September, 2003 to October, 2003 amounting to Rs. 2,71,255/- towards the provident fund contribution alongwith the bank transaction statement. During that period the Office of the Regional Provident Fund Commissioner, West Bengal vide letter dated 16.9.2004 issued an order to the Branch Manager, UTI Bank, Gurgaon to pay the dues of the petitioner No. 1 company under section 8-F of the said Act. In the order dated 16.9.2004, the Office of the Regional Provident Fund Commissioner claimed a sum of Rs. 22,20,275/- for the period from July 2003 to April 2004. M/s. UTI Bank Ltd. complied with the order of the Regional Provident Fund Commissioner and paid Rs. 22,20,275/- vide two demand drafts No. 3526 dated 18.9.2004 for Rs. 14,98,618.69/- and No. 3563 dated 28.9.2004 for Rs. 7,21,676.31/- respectively. The UTI Bank vide letter dated 28.9.2004 addressed to the petitioner No. 1 company confirmed payment of the total of Rs. 22,20,275/- to the Employees Provident Fund Commissioner, Calcutta. By letter No. R-Ex-5143/WB/CA/1612(B)(i) dated 4.10.2004 Sri R.K. Sinha, Assistant Provident Fund Commissioner, W.B. informed the Branch Manager, UTI Bank, Gurgaon Branch about the revocation of the Bank attachment order under section 8-F of the said Act. So, the Employees Provident Fund Organisation realized the outstanding contribution of the employees as well as the employer upto April, 2004. The prosecution of the petitioner for non-payment of the employees contribution of the provident fund for the period from July, 2003 to April, 2004 is an abuse of the process of the Court. It is a sheer harassment of the petitioners, particularly, petitioner No. 2 who has not any ultimate control over the affairs of the petitioner No. 1 company. The petitioner No. 1 company is facing acute financial crisis and enquiry within the meaning of section 60 of the Sick Industries (Special Provision) Act, 1985 is pending. The company is trying to rehabilitate itself. Presently, the petitioner No. 1 company has huge financial debts of the bank and financial institutions. So, there was some delay in arrangement of fund to deposit the provident fund contribution of the employees. It is not a case where the company converted the provident fund contribution of the employees for its own gain.

(3.) The learned Counsel for the petitioner contended inter alia that whatever has been done has no connection with the petitioner No. 2 because he is not the employer and has no control over the state of affairs of the petitioner No. 1 company. So, the proceedings against the petitioner No. 2 may be quashed whereas petitioner No. 1 may face trial. Further, it was contended that the payment has already been made and as such the Director, petitioner No. 2 cannot be responsible in any manner whatsoever.