1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 60 OF 2010 1. Hindustan Coca-Cola Beverages Pvt. Ltd., a Company incorporated under the provisions of the Companies Act, 1956 having its registered office at 13, Abul Fazal Road, New Delhi and having its plant at M-2 to M-11, Phase III B, Verna Industrial Estate, Verna, Salcete Goa-403 722. 2. Mr. Joyontho Chaudhary, Indian Inhabitant, having his office address at C/o Hindustan Coca-Cola Beverages Pvt. Ltd. M-2 to M-11, Phase III B, Verna Industrial Estate, Verna, Salcete-Goa-403 722. 3. Mr. Pawan Kumar Sahini, Indian Inhabitant, having his office address at C/o Hindustan Coca-Cola Beverages Pvt. Ltd. E-1, Industrial Area, Patliputra, Patna-13. ... Petitioners versus 1. The State of Goa Through Public Prosecutor High Court, Panaji. 2 2. Mr. Vallabh Prabhudessai, Indian Inhabitant residing at H.No.52, Near Chapel Cusman, Quepem, Goa. ... Respondents Shri Shirish Gupte and Shri A. N. S. Nadkarni, Senior Advocates with Shri S. M. Singbal, Shri S.Srivastava, Shri P. Prabhu, Ms. Rati Gawas and Shri D. Lawande, Advocates for the Petitioners. Shri A. Prabhudessai and Shri R. Xete holding for Shri Arun Bras De Sa, Advocate for Respondent No.2. CORAM : N. A. BRITTO, J. DATE : 10TH DECEMBER, 2010. ORAL ORDER Challenge in this Criminal Writ Petition is to the Order dated 6-1-2010 of the learned J.M.F.C., Margao by which process has been issued against the accused under Section 406 r/w 34 I.P.C. 2. The petitioners are accused Nos.1, 2 and 3 in the said complaint. Accused Nos.4 and 5 were deleted by the complainant. 3. Some facts need to be stated to dispose off this petition. The parties hereto shall hereinafter be referred to in the names as they appear 3 in the cause title of the said complaint. The complainant was working with the petitioner-Company as a supervisor from December, 1997 on temporary basis and became a permanent employee from 1-7-1998 and continued till 20-12-2005 when the complainant resigned from the said Company. 4. The case of the complainant is that he applied for refund of his Provident Fund but was able to recover only a sum of Rs.7,468/- from his Account No.GOA/10843/261 which was his Provident Fund contribution from April, 2005 to December, 2005, and he was informed by the Provident Fund Office that the said amount was in possession of the Office and the remaining was lying in Account No.MH/32318/388. The complainant stated that he received information from the Provident Fund Office that inspite of he being an employee since December, 1997 his Provident Fund was being deposited from July, 1998. The complainant stated that he approached the Maina-Curtorim Police Station by complaint dated 18-5-2009, and after going through the said complaint the Police summoned the accused who was represented by one Shri Sarkar who claimed to be a lawyer of the company and the complainant was told by the lawyer that his Provident Fund has been 4 duly deposited in his account but was reluctant to show any specific month wise break up of the statement being deposited in the Provident Fund account of the complainant. According to the complainant he had information supplied by the Provident Fund Office wherein the deduction of the Provident Fund in the account of the complainant had started from July, 1998 despite the fact that the complainant had joined in December, 1997. According to the complainant, the petitioner- Company has deducted money from the salary of the complainant as Provident Fund deduction from December, 1997 but failed to deposit the amount in the Office of the Provident Fund Commissioner, the total amount being Rs.1,37,478/-. According to the complainant, the accused are the persons responsible for deducting the amount towards the Provident Fund and depositing the same from time to time in the account of the complainant, and, therefore the accused had committed an offence under Section 409, I.P.C. As per the complainant, the Maina-Curtorim Police Station failed to take action against the accused for reasons best known to them. The complainant therefore filed the said complaint against the accused, and after examining the complainant on oath, the learned J.M.F.C. issued process against the accused but under Section 406 r/w 34 I.P.C. 5 5. There is no dispute that the complainant had started his employment with Britco Foods Company Private Limited which Company came to be amalgamated with the petitioner-Company by Order of this Court dated 3-5-1999 passed in Company Petition No.234 of 1999 and by virtue of the said Order it was inter alia provided that the existing Provident Fund, Gratuity Fund and Superannuation Fund Trusts created by the Transferor Company (Britco Foods Company Limited) for its employees including employees of the Transferred Undertakings of the Transferor Company shall be continued for the benefit of such employees and employees of the non-transferred continuing undertakings, on the same terms and conditions. Further, it was stipulated that with effect from the effective date the Transferee Company(petitioner herein) shall make the necessary contributions for such transferred employees of the Transferor Company and deposit the same in the Provident Fund, Gratuity Fund and Superannuation Fund of the Transferor Company. 6. Section 406 I.P.C. provides for criminal breach of trust and Section 405 I.P.C. defines what is criminal breach of trust and provides that whoever, being in any manner entrusted with property, or with any 6 dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust; and the first explanation provides that a person being an employer of an establishment whether exempted under Section 17 of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or not who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount for the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. 7. Shri Shirish Gupte, learned Senior Counsel appearing on behalf of the petitioners at the outset made a submission that all 7 contributions towards the provident fund are credited to the account of the petitioner in A/C No.MH/32318/388 and the petitioners are willing to pay the same to the complainant. However this offer was not acceptable to the complainant. Therefore, Shri Gupte, has made threefold submissions. 8. First, as regards the merits of the case that no offence under Sections 405/406 I.P.C. was disclosed. Second, that Shri Milind Pingle who was made to represent the company as well as accused Nos.2 and 3 had joined the company in the year 2008, and, therefore they could not be prosecuted for the offences alleged against them. In this context, learned Senior Counsel has placed reliance on the case of E.S.I. Corporation v. S. K. Aggarwal and others(1998 Company Cases Vol.94 page 75) which was followed by this Court in the case of Sharad Mittersain Jain and others v. State of Maharashtra(2004(1) Mh.L.J. 776). Learned Senior Counsel has also placed reliance on the case of Robin Paul v. State of West Bengal and another((2010) 153 Company Cases 419(Cal)) to say that a director of a company would not come within the word “employer” as has been defined under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. Learned 8 Senior Counsel has also submitted that the complaint has been filed without sanction which would be required even in a case under Section 406 I.P.C. and in this regard, learned Senior Counsel has placed reliance on a decision of this Court in the case of Yeshwantrao Dattaji Chowgule and others v. State(1993(1) Crimes 534). 9. Learned Counsel on behalf of the complainant submits that the petitioners ought not to be allowed to invoke extraordinary jurisdiction under Section 482 of the Code and at the most, correction of the impugned Order could be examined in revisional jurisdiction either by the Court of Sessions or by this Court. Learned Counsel submits that the said Milind Pingle is not a party to this petition. At the same time, learned Counsel concedes that the amount due towards the Provident Fund to the complainant has been deposited in Account No.MH/32318/388 pertaining to M/s. Britco Foods Pvt. Ltd. which is an exempted establishment under Section 17 of the said Act. Learned Counsel then submits that his account was opened only on 1-7-1998 and in this context, learned Counsel points out to page 20 of the paper book contending that persons who had joined the establishment after May could not have an account opened prior to his. At the same time, learned 9 Counsel has been unable to point out to any document to suggest that deductions made towards the contributions of Provident Fund were not credited to the account after to 1-7-1998. 10. As regards the first submission of learned Counsel on behalf of the complainant, Shri Gupte has placed reliance on an unreported Judgment of this Court dated 6-9-2010 in Criminal Writ Petition No.42 of 2009 in the case of Gurinder Singh and others v. State of Goa and another wherein it was, inter alia, observed that against an Order issuing process two remedies are available to an accused person. One could be termed as ordinary remedy under Section 397 of the Code and the other as extraordinary remedy under Section 482 of the Code. Whether parties should be allowed to invoke extraordinary jurisdiction of this Court under Section 482 of the Code is again in my opinion the choice of this Court in case where the situation is extraordinary and exceptional. Reference was inter alia made to the case of Raj Kapoor and others v. State and others((1980) 1 SCC 43) wherein the Supreme Court had stated that the remedy available of revisional jurisdiction under Section 397 of the Code does not exclude the jurisdiction under Section 482 of the Code and that the High Court 10 should exercise its inherent jurisdiction only in extraordinary cases. To my mind, this is a case where extraordinary jurisdiction need be exercised by this Court more so after notice was issued and pleadings have been filed by the parties. 11. The petitioners have filed the statement of account from Britco Foods Employees Provident Fund Trust Account PF No.MH/32318/388 which shows that contributions were made from December, 1997 till March, 2005, and the petitioners have also filed a certificate from the Chartered Accountants stating that the particulars of contributions as appearing in the enclosed PF statements are true and correct. Admittedly, the authorities under the Provident Fund and Miscellaneous Provisions Act, 1952 (Act, for short) have not taken any action against the petitioner-Company and this itself would prima facie indicate that the petitioner-Company has not committed breach of any of its provisions and according to the learned Senior Counsel Shri Gupte, as on 31-3-2010 a sum of Rs.60,884/- stands in the said account to the credit of the complainant. 11 12. It can be seen from letter dated 8-7-2009(at page 147 of the paper book) written by none other then the Employee's Provident Fund Organization to the complainant that the establishment i.e. petitioner- Company had already deposited the said provident fund amounts to his account before the due dates. The letter also mentions that the transfer of provident fund amounts in respect of 24 employees was transferred to the Regional Provident Fund Commissioner, Goa. Learned Senior Counsel submits that this letter dated 8-7-2009 was suppressed by the complainant and was not shown to the learned J.M.F.C. and despite the said letter the complaint was filed on 3-8-2009. 13. There is no dispute that the complainant has otherwise withdrawn a sum of Rs.7,468/- from his Goa Account No.GOA/10843/261 being Provident Fund contribution from April, 2005 to December, 2005. The notice sent by the petitioner to the accused dated 25-9-2009 also clearly mentions that complainant's Provident Fund Account No.MH/32318/388 was registered with Britco Foods Company Ltd. and during the term of his employment with the petitioner-Company his provident fund was duly credited to his account. Now, it is admitted by the complainant that the said notice was received 12 by the complainant although on behalf of the petitioner-Company A.D's of notice were produced at page 68. The complainant was also informed by letter dated 7-7-2009 which also was received by the accused that his contributions along with companies contributions was made to Britco Foods Company Ltd. and Employees Provident Fund Trust till March, 2005 and thereafter from April, 2005 to 20th December, 2005(the last date of his employment with the Company), his Provident Fund deductions and Company contributions were made to the Regional Provident Fund Commissioner Account No.GOA/10843/261. The complainant was also informed that he had filed form 13 dated 15-6-2005 for transfer of the Provident Fund from Britco Foods Company Limited and Provident Fund Trust to the Regional Fund Commissioner (RPFC), Goa but the said transfer was not effected on account of the error in the previous Provident Fund Trust number. It was also mentioned that the above factual position was explained to the complainant in person by their representatives and their Advocate Shri Shirodkar on 30-5-2009 in the presence of P.S.I. Nayak of Maina- Curtorim Police Station, and that the complainant had stated that he had understood the position and that he was taking steps to apply for the release of the Provident Fund accumulations by filing necessary form 13 and complying with the other statutory procedures. It was therefore clarified that complainant's contributions from December, 1997 to 31st March, 2005 continued to lie with Britco Foods Company Limited and Employees Provident Fund Trust and in case he wished to withdraw or transfer the said accumulation the complainant was requested to contact the Trustees of Britco Foods Company Limited and Employees Provident Fund Trust. Learned Senior Counsel therefore submits that no criminality could be attributed to any of the accused. Learned Counsel further submits that in any event no offence was made out against the accused and process was obtained from the learned J.M.F.C. by suppression of documents. As already stated the authorities under the Act have not taken any action against the petitioner-Company or any of its Officers for non payment of contributions due under the Provident Fund and Miscellaneous Provisions Act, 1952. On the contrary, at the request of the petitioner-Company by letter dated 8-6-0206(at page 72) the Employee's Provident Fund Organization informed the complainant that the Company had already deposited the Provident Fund amount to his account before the due dates(at page 147) and not only that by another letter dated 7-7-2009 the Company had informed the complainant about the state of affairs of his contributions that they were lying in the said 14 account PF MH/32318/388. The correspondence exchanged between the parties and produced by the complainant and particularly letter dated 14-1-2010(at page 154) from the Employees Provident Fund Organization that the petitioner-Company has not transferred his Provident Fund accumulations because of the reason that he had not submitted the form 13 for getting the provident fund accumulations transferred to his present provident fund account maintained at Goa. Complainant was advised to submit the transfer form duly filled in all respects to the petitioner-Company for effecting the transfer of the provident fund accumulations. The documents produced by the petitioner-Company which is correspondence exchanged between the parties and the said Provident Fund Organization clearly shows that timely contributions made were credited to the account of the complainant with the said Britco Foods Company Limited Employees Provident Fund Trust and the same are lying in the said account and the petitioner-Company has shown his readiness to pay the same to the complainant. The complainant even admits in para 10 of the complaint that the remaining amount is lying in the said account No.MH32318/388 and that position has also now been conceded by the learned Counsel and if that is so one fails to understand as to how any of the accused 15 could have been prosecuted under Sections 405/406 r/w 34 I.P.C. 14. The complaint appears to be motivated in that the agency taken by the complainant in the name of complainant's mother did not run successfully and the agency was given to one M/s. Shivani Marketing to operate in the same area as that of the mother of the complainant and a complaint was also filed against the said mother under Section 138 of the Negotiable Instruments Act, 1881. The complainant had failed to make out a prima facie case against any of the accused under Sections 405/406 I.P.C. as the contributions due and payable to him were always deducted and deposited in the complainant's account with the said Britco Foods Company Limited Account No.MH/32318 which is an exempted establishment from 1-9-1996 under the relevant provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. 15. Consequently, this petition deserves to succeed. The Order dated 6-1-2010 of the learned J.M.F.C. is hereby set aside and the complaint filed by the complainant against all the accused is hereby 16 dismissed. Complainant to pay costs of Rs.5000/- for filing a frivolous complaint and pursuing it further inspite of the offer made by the petitioner-Company to pay the amount lying in the said account. In the circumstances of the case, the said costs shall be paid by the complainant within a period of two weeks and shall be credited into the account of the Goa State Legal Services Authority. N. A. BRITTO, J. RD