RAJ KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY these twin applications one under section 397/401 and the other under section 482, Cr. P. C. , the accused persons have invoked the revisional and inherent jurisdiction of this court to challenge the validity of the orders dated February 26, 1982 and November 11, 1982 of the courts below and have further prayed for dropping the Criminal proceedings launched against them by the Krishi Upaj Mandi Samiti Padampur, under section 28/17 of the Rajasthan Agricultural Produce Market Act, 1961 (for brevity 'the Act' ). Briefly stated, the relevant facts giving rise to these petitions are that the Krishi Upaj Mandi Samiti Padampur (district Sri Ganganagar) (hereinafter referred to as *the Samiti') lodged a complaint through its Secretary in the Court of Judicial Magistrate, Karanpur for an offence under sec. 28/17 of the Act, It was stated therein that the Samiti is a statutory body. Accused Raj Kumar and Vimal Kumar are the owners while accused Tej Bhan is the manager of M/s. Raj Iee Factory, Padampur. The factory carries on various activities including that of the selling of mustard and cotton seed oil. During the period from November 17, 1975 to March 7, 1977, the accused sold 43 tankers of cotton - seed oil valuing Rs. 26, 20, 285. 45 to various oil mills operating at Jaipur, Delhi and Gulabpur as per details disclosed in annexure annexed with the complaint. The market fee on this amount comes to the tune of Rs. 26,202 85. This market fee under the Act, rules made thereunder and the bye-laws, was to be paid by the accused persons to the Samiti. But the accused persons failed to pay the aforesaid amount of the market fee to the Samiti. Notices were issued to them but they observed absolute silence. Enquiry was made from the various oil mills and the fact of sale of cotton - seed oil to them stood confirmed BY not paying the market fee, the accused have violated the provisions of Sec. 17 and thereby committed an offence punishable under section 28 (2) of the Act. The learned Magistrate, upon presentation of the complaint, took cognizance of the offence on the same date i. e. May 15, 1978 and issued summons to them to take trial. The accused entered the appearance and substance of accusation were stated to them and their plea was recorded on May 29, 1982. The accused denied the guilt and claimed the trial. Earlier on September 25, 1981, an application was filed on their behalf praying therein that as the complaint was lodged after the expiry of one year from the alleged date of the commission of the offence, the complaint was time barred, cognizance should not have been taken on this time barred complaint. It was argued that the criminal proceeding should not continue and the complaint should be dismissed. This application was opposed teeth and nail by the Samiti. The written reply was filed on November 20, 1981 describing various facts therein, which occasioned the delay in the lodging of the complaint. It was stated that the accused persons never disclosed the sales nor intimated the sale to the Samiti. It was after an enquiry from the various oil mills that the Samiti came to know of the sale and the non-payment of market fee on the sale price of the oil. Thus, no delay was there. Even if the delay is there, it should be condoned firstly on the above ground and secondly on the ground that it is necessary in the interest of justice. The learned Magistrate heard both sides i. e. the complainant and the accused persons. BY his order dated January 16. 1982, he refused to condone the delay relating to the offence committed in between November 17, 1975 to December 31, 1976, but condoned it for the offence committed during January 1, 1977 to March 7, 1977 as he found it necessary to do so in the interest of justice. Aggrieved against the said order of the learned Magistrate, both the parties went in revision, which was heard and decided by the Additional Sessions Judge, Sri Ganganagar. BY his impugned order dated November 24, 1982, he dismissed the revision filed by the accused persons and allowed that filed by the Samiti. The result was that the entire delay for the offence committed in between November 15, 1975 to March 7, 1977 was condoned. Aggrieved against the said order of the learned Addl. Sessions Judge, the accused persons have come-up to this Court.

(2.) I have heard the learned counsel appearing for the parties and the learned Public Prosecutor.

(3.) THE case before their lordships was that of failure to pay the employer's contribution to the Provident Fund. THEre the accused persons were charged with an offence for their failure to pay the employer's contribution before the due date. It was held that each day for that the accused persons failed to comply with the obligation to pay their contribution to the fund, they committed a fresh offence. THE offence was taken to be a continuing one. I am lured to quote para 19 of the judgment, which runs as under :- "the question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates that offence the nature of the offence and, above all the purpose which is intended to be achieved by constituting the particular act as an offence. Turning to the matters before us, the offence of which the appellants are charged is the failure to pay the employer's contribution before the due date. Considering the object and purpose of this provision, which is to ensure the welfare of workers, we find it impossible to hold that the offence is not of a continuing nature, the appellants were unquestionably liable to pay their contribution to the Provident Fund before the due date and it was within their power to pay it, as soon after the due date had expired as they willed. THE late payment could not have absolved them of their original guilt but it would have snapped the recurrence. Each day that they failed to comply with the obligation to pay their contribution to the Fund, they committed a fresh offence. It is putting an incredible premium on lack of concern for the welfare of workers, to hold that the employer who has not paid his contribution or the contribution of the employees to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation. Such offences must be regarded as continuing offences, to which the law of limitation cannot apply. "