KALIKA PRESS P LTD Vs. STATE

JUDGEMENT

(1.) THESE four cases, namely, Criminal Revision Cases No. 882, 883, 884 and 885 of 1981 have arisen out of similar petitions under section 397, 401 and 482 of the Criminal Procedure Code, 1973 (hereinafter to be referred to as the code) filed by the same set of petitioners; and they are directed against orders dated 20. 4. 81 passed in Criminal Appeals No. 34,33,32 and 3 1 of: 1980, respectively by the learned Chief Judge, City sessions Court, Calcutta, affirming the judgment of conviction and sentence rendered against the petitioners in Cases Nos. 2362, 2363, 2364 and 2365 of 1 977 , respectively by the learned Metropolitan Magistrate 3rd. Court, Calcutta. The aforesaid cases arose out of four petitions of complaint filed on 26. 3. 1977 by an Inspector under the Employees Provident Funds and Family Pension Funds act, 1 952, (hereinafter to be referred to as the Act ). In the complaints allegations of commission of offences by the petitioners under section 14 (2), Section 14a (1) and 14aa of the Act read with paragraph 76 (b) of the Scheme framed under the Act by non-performance of their statutory and obligatory duties for the months of September, October, November and December,1976, were made. The complainant alleged previous conviction of the petitioners for the "same offence" in cases Nos. 527 and 528 of 1975 and prayed for enhanced punishment under section 14aa of the petitioners conviction. The courts below have found concurrently that the petitioners committed offences as alleged and they were previously convicted of the "same offence". Each of the petitioners including petitioner No. 1, Kalika Press (P) Ltd. , an artificial person, has been sentenced to three months S. I. and fine of Rs. 250, in default to S. I. for one month in each case. In view of a single trial for the same offence in four cases and of sections 31 and 427 of the Code, the courts below should have clarified if the sentences were to run concurrently or consecutively. But that has not been done. For reasons of convenience we have heard the four cases together. Mr. Pradip Ghosh the learned advocate for the petitioners contended that the conviction was illegal and was. based on insufficient evidence. His further contention was that previous conviction for the same offence for which the present prosecutions were instituted was not proved. Mr. Amjad Ali, the learned advocate for the respondent, however, supported the concurrent findings of the two courts valiently.

(2.) FOR proper understanding of the allegations made against the petitioners and the capacity in which they committed the offence we looked into the petitions of complaint, major portions of which is printed. We note with regret that portions of the complaint which had no relevance or applicability to the facts and circumstances under consideration were not scored out. According to Section 1 Sub-section (3), the Act applies to establishments which are factories clause (a) and to other establishments (clause 4 ). The Classification of establishments in two categories is important, because under section 2 (e) of the Act the term "employer" in relation to two different kinds establishments will mean two different sets of persons. For correct determination as to who were the employers a statement in the petition of complaint is necessary as to which kind of establishment petitioner No. 1 belonged to. Such a statement has not been made. The point has neither been clarified in course of the deposition by prosecution witnesses. In the revision petitions it has been admitted that petitioner No. l is a factory. Even then the employers relation to the said factory were required to be mentioned in the complaints. The employers are required to submit under paragraph 36a of the E. P. F. Scheme, 1952 particulars of ownership in Form 5a. We do not know if such form was obtained in respect of petitioner no. l or anybody interested in the prosecution, cared to go through the above form. Our point is that inspite of materials available the complainant did not state in the complaint who were employers in relation to petitioner No. 1.

(3.) "employer" has a very important role to play under the Act and connected scheme. In para 4 of the complaint reference to section 6 of the Act has been made which requires "employer" to pay contributions. Similarly reference; to paragraphs 36 and 38 of the Scheme of 1952 has been made which impose duties exclusively on "employers". In para 5 of the complaint reference has been made to paragraphs 9,20, and 39 of the Scheme of 1971 and those paragraphs indicate that they relate exclusively to "employer". Default on the part of employer has been pleaded in paragraph 6 of the complaint and this relates to non-discharge of duties cast on "employer" under the Act and. the Scheme. In paragraph 7 of the complaint reference has been made to para 76 (b) of the scheme of 1952 which is attracted in cases of non-discharge of duties cast upon the employer under paragraph 36.