MRINAL KANTI BHATTACHARYA Vs. STATE

JUDGEMENT

(1.) MRINAL Kanti Bhattacharya the then administrative officer of Ms. Ancillary Industries cranks (Pr.) Ltd. has come up in revision before us by filing an application under section 401 read with section 482 of the Code of Criminal Procedure, challenging the continuance of the proceedings in case no. C|1702|76 pending before the learned Metropolitan Magistrate, third Court Calcutta. The said proceedings arose out of a complaint filed by an Inspector of Provident Funds under section 14 (1a), 14 (2), 14 (A) (1) of the employees Provident Funds and Family pension Act, 1952 read with para 75 (b)and 76 (b) of the Employees Provident fund Scheme. In the complaint it was alleged that default was made in deposit of provident dues of the employees for August, 1975 in this case, and for april and July, 1975 in two other case respectively. It may be noted that in the petition of complaint the company aforesaid was described as accused no. 1 and three of its Directors specifically named were described as three ether accused. On 21. 3. 78 Mrinal Kanti Bhattacharya filed an application in the court below alleging that he was the administrative officer of the company aforesaid and was conversant with the facts and circumstances of the case. He prayed that order of attachment issued by the court be recalled and incidentally informed the court that the three Directors of the company had gone up to revision in the High Court challenging the continence of the proceedings. On 4. 12. 78 the High Court set aside the order of the learned Magistrate issuing process against the accused nos. 2 to 4 and the proceedings as against them 7were quashed. On 15. 10,80 the company, was nationalised by the Hind Cycle Ltd. and Sen Raleigh Ltd. (Nationalisation)Ordinance 1980. Under section 3 of the said Ordinance the undertakings of the company stood transferred to and vested in the Central Government. By a further notified order dated 24. 10. 80 the undertaking of the erstwhile company was further transferred from the Central Government and vested in the Cycle Corporation of India Ltd. of which it is alleged Mrinal Kanti Bhattacharya became an officer. On 16. 4. 83 Mrinal kanti Bhattacharya filed a petition before the learned Magistrate stating that he was no longer competent to represent the accused company as the company, became non-existent on account of its nationalisation and vesting of its undertaking in the Cycle Corporation of India subsequently. The sum and substance of " mrinal Bhattacharya's prayer Was for an order releasing him from the responsibility of representing the company namely, M|s. Ancillary Industries Cranks Ltd. be order dated 30. 3. 84 the learned magistrate dismissed the petition, of Mrinal kanti Bhattacharya and refused his prayer. The learned Magistrate held that inspite of the provisions of the Nationalising Ordinance the company could be prosecuted or was liable for the default; committed prior to the coming into force of the Ordinance. So Mrinal Kanti bhattacharya has come up in revision before us.

(2.) WE have already noticed that the company was prosecuted and along with it three of its Directors were sought to be prosecuted. We have seen that the proceedings, insofar as the Directors were concerned, have been quashed, the proceedings were continuing against the company itself which figured as accused no. 1 in the case. The company having been prosecuted, section 305 of the Code of Criminal Procedure was obviously attracted. Pursuant to that section the company can appoint a representative of its own and the court on the basis of such appointment can accept the representative so appointed as representative of the company. Sub-Section (5) of Section, 305 lays down the circumstances in which the court will presume that a person has been appointed representative of the company sought to be prosecuted. Going through the records of the case in the court below we find nothing to indicate that the company prosecuted ever appointed Mrinal Kanti Bhattacharya as its representative within the meaning of section 305 of the Code. In his petition filed on 21. 3. 78 Mrinal Kanti bhattacharya did not assert that he was appointed representative of the company by the company itself. Subsequent orders of the court convey the impression that Mrinal Kanti Bhattacharya was accepted by the court as the appointed representative of the company.

(3.) NOW a question to be decided under sec. 305 (6) arises whether Mrinal Kanti bhattacharya is or is not such a representative. Mr. Sengupta learned Advocate for the petitioner advances his argument in two branches. The first branch of his argument is that there being no indication in the records of the court below that Mrinal Kanti Bhattacharya was appointed representative of the company or that Mrinal Kanti Bhattacharya himself asserted that he had been appointed representative by the company, it was wrong and erroneous on the part of the Court to accept Mrinal Kanti as the representative of the company. He contends that the only way to correct the above error of the court below is to deny recognition to Mr. Mrinal Kanti Bhattacharya as a representative of the company and to hold affirmatively that he is not the appointed representative of the company. Mr. Sengupta argues that if the court come to. the above conclusion then no order is called for to relieve Mr. Mrinal Kanti bhattacharya of the responsibility of representing the company. The second branch of Mr. Sengupta's argument may be summarised as follows. He argues that by virtue of the Ordinance of 1980 earlier mentioned the undertaking of the company prosecuted stood transferred to and vested in the Central Government; subsequent thereto by virtue of a notified order dated 24th October, 1980 passed in exercise of power under section 6 (1) of the Hind Cycle Ltd. Sen raleigh Ltd. Nationalisation Ordinance 1980 (16 of 1980) the erstwhile company was further transferred by the Central government and vested in Cycle Corporation of India Ltd. of which Mrinal kanti Bhattacharya became an officer. Mr. Sengupta contends that because of the vesting of the undertaking in the central Government initial by and transfer of the undertaking subsequently to cycle Corporation of India Ltd. , the company prosecuted has ceased to exist altogether; and there is not the slightest possibility, of the company's demerge against that background he contends that no useful purpose would be served by continuing the proceedings against the company which has ceased to exist for all times to come. Mr. Sengupta argues that as the company has ceased to exist Mrinal Kanti Bhattacharya has no connection with that company and has no competence to represent the company more so, because he has become an employee of Cycle Corporation of India. Ltd. Mr. Sengupta accordingly contends. that after October, 1980 Mrinal Kanti' bhattacharya had no power or competence to represent the company initially; prosecuted. In the circumstances he submits there is no bar to a court passing an order that Mrinal Kanti Bhattacharya does not represent the company prosecuted. Mr. Prasad, learned Advocate representing the Inspector of Provident funds with his usual fairness concedes that the civil liability in respect of the provident fund dues in default have since been discharged by the Central government, but he contends that there is no provision in law that proceedings for offences committed in past should abate in view of subsequent develop ments. Mr. Prasad accordingly submits that even if the court records and order that Mrinal Kanti Bhattacharya does not represent the company prosecuted there is no scope for quashing the proceedings altogether against the company prosecuted. The learned Advocate appearing on behalf of the State submits that no useful purpose will be served by continuing the proceedings although there is no specific provision of law laying down that in the circumstances transpiring the present case the criminal proceedings should abate.