UMESH PHALPHER Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The petitioner has filed the present petition for quashing of FIR No. 57 of 2013, dtd. 6/4/2013, registered at Police Station Dhalli, District Shimla, H.P. for the commission of offences punishable under Ss. 406, 409 and 120-B of IPC and the consequent proceedings against the petitioner in case No. 80-2 of 2014, titled State of H.P. Vs. Umesh Phalpher pending before learned Additional Chief Judicial Magistrate, Court No.1, Shimla, H.P.

(2.) Briefly stated, the facts giving rise to the present petition are that the informant/respondent No.2 made a complaint to the police asserting that M/s U.G. Hotel and Resorts Ltd., Shilon Resorts, Village Shilonbagh, P.O. Mundaghat, Tehsil and District Shimla, H.P. is an establishment covered under the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952 and schemes framed thereunder. The employer of the establishment is under an obligation to deduct the employees' share from their wages/salaries every month and to deposit it in the statutory fund along with the employer's share. The informant found that the Company had deducted the employees' share of contribution from their wages/salaries for the period 4/2011 to 2/2013 but failed to deposit it in the statutory fund. The employer was guilty of a criminal breach of trust. The police registered the FIR for the commission of offences punishable under Ss. 406, 409 and Sec. 120-B of the IPC. The police seized the record and found that the petitioner was the Managing Director of Shilong Bag Resorts. The details of the expenses of the Resort were sent to the Managing Director. The Managing Director made the payment to various persons through cheques. The EPF contribution was deducted from the salaries of the employees from April 2011 till February 2013 but this amount was not deposited. The Managing Director failed to deposit the amount despite repeated calls to him. It was found that there was no negligence of any other person; hence, Ss. 409 and 120-B of the IPC were deleted and a challan was filed against the petitioner for the commission of an offence punishable under Sec. 406 of the IPC.

(3.) Being aggrieved from the registration of FIR and the submission of the charge sheet, the petitioner filed the present petition asserting that the proceedings initiated against him amount to an abuse of the process of law. The petitioner is the Director of the Company and he does not fall within the definition of Employer under the EPF Act. Proceedings cannot be continued against him. No money was entrusted to him and he was not liable to deposit any money. The petitioner himself is an employee of the Company and is drawing a monthly salary. The Company had employed the employees and they are liable to deduct the provident fund contribution and deposit the same. There is nothing on record to show that the petitioner had misappropriated the money. He can not be held liable for the commission of an offence punishable under Sec. 406 of IPC; hence, it was prayed that the present petition be allowed and the FIR and consequent proceedings arising out of the same be quashed.