HARI NATH PODDAR Vs. STATE

JUDGEMENT

(1.) THE petitioner who is the Proprietor of the factory under the name and style of M/s. Poddar Iron Industries was prosecuted by the respondent No. 2 under Section 14(1) of the Employees' Provident Fund Act for not making payment of employees' contribution for the period between September, 1974 and September, 1975 before the S. D. J. M. Howrah. The petitioner was convicted and sentenced to pay fine in default imprisonment in all the cases. Thereafter, the petitioner was prosecuted under Sections 406 and 409, I.P.C. on the complaint of respondent No. 2, being G. R. Case No. 104/76, It is against this prosecution that the petitioner has come up before this Court.

(2.) THE petitioner's Advocate submits that the prosecution under Section 406 I.P.C. cannot go on as it is violative of Article 20(2) of the Constitution and also the mandatory provision of Section 300, Cr. P.C. The petitioner filed an application before the Judicial Magistrate, Howrah, challenging the maintainability of the prosecution in view of provisions of Article 20(2) and Section 300, Cr. P.C.

(3.) FURTHER , I repel the argument of the petitioner's Advocate that his client is being prosecuted on the same facts for the same offence and thus he is put to double jeopardy. The ingredients of the offences under Section 14(1) of the Employees' Provident Funds Act and the Scheme are not the same as ingredients of the offence under Section 406 I.P.C., in the former there is violation of Section 14(1A) of the Act, if default is made in payment of the contribution after the due date. In the latter, the offence consists in misappropriating the money 'entrusted' to the Employer in violation of a direction of law i. e. the money deducted from the wages of the employees as contribution to the Provident Fund along with the contribution of the employer made by the direction of law i. e. the Employees' Provident Funds Act, should be sent to the appropriate authority under the Act and Scheme within a particular date. There is no violation of Section 300 of the Cr.P.C, as under that section the second prosecution must be for the same offence i, e. identical offence. If the two offences are different as in the present case though the facts are same in both the cases, the provisions of Section 300 Cr. P.C. are not attracted.