IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 Crl.Rev.Pet.No. 228 of 2011() ----------------------------- CRA.965/2009 of ADDL. DISTRICT & SESSIONS COURT FAST TRACK-I, THRISSUR CC.273/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... PETITIONER/2ND APPELLANT/2ND ACCUSED ------------------------------------------------------------------ SRI.E.K. WILSON, MANAGING PARTNER, HOUSE NO.XVI/445, GANDHIJI NAGAR, THRISSUR ROAD, KUNNAMKULAM. BY ADV. SRI.C.PRABIN BENNY CHUNGATH. RESPONDENT/RESPONDENTS/COMPLAINANT -------------------------------------------------------------------- 1. THE ENFORCEMENT OFFICER (INSPECTOR), EMPLOYEES PROVIDENT FUND ORGANISATION, PROVIDENT FUND INSPECTORATE, THRISSUR, 680 001. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, 682 031. R2 BY PUBLIC PROSECUTOR MR.V. TEKCHAND. R1 BY DR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE, ADV. SRI.M.CHANDRA BOSE. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/02/2011, ALONG WITH CRRP NO.229 OF 2011 AND CONNECTED CASES, THE COURT ON 28/02/2011 PASSED THE FOLLOWING: rs V.K.MOHANAN,J. -------------------------------------------------- Crl.R.P.Nos. 228,229,230,231,232,233,234, 235,236,237,238,239,240,241, 242,243,244,245,246,247,248, 249,250,251,252,253,254,255, 256,257,258,259,260,261,262, 263,264,265,266,267,268 & 269 of 2011 -------------------------------------------------- Dated this the 28th day of February,2011 O R D E R All the above Criminal Revision Petitions are filed challenging the conviction and sentence imposed against the revision petitioners under Section 14(1A)(b) read with Section 14A of the Employees' Provident Funds and Miscellaneous Provisions Act,1952 (for short 'the Act' only). Since the parties to all the above revision petitions are one and the same, the facts and circumstances involved in each case and the allegation against the revision petitioner are similar and the impugned judgments are delivered by the same courts and all these revision petitions are arising out of the common judgments of the courts below, these revision petitions are heard together and being disposed of by this common order. 2. The prosecution proceedings in the trial court were instituted on the basis of separate complaints filed by the Enforcement Officer, Crl.R.PNos.228/2011 & connect. cases :-2-: Employees' Provident Fund Organisation, District Office, Thrissur against three accused. Out of them, the first accused is a firm viz., M/s.Bio Research Pharmaceuticals, Kunnamkulam, the second accused is the Managing Partner and the third accused is the wife of the second accused and the partner of the firm. The case of the complainant is that the Employees Provident Fund and Miscellaneous Provisions Act,1952, Employees' Provident Funds Scheme, 1952 and the Employees' Pension Scheme,1995 are applicable to the accused establishment and accused Nos. 2 and 3 were persons in charge of the establishment and they were responsible for the business conducted by the first accused/firm. According to the complainant, in view of paras 30 and 38 of the Employees Provident Fund Scheme,1952, the accused are liable to pay the employees' and employer's share of contribution to the Provident Fund with respect to the employees of the said establishment together with administrative charges for every month within 15 days of the close of that month. Thus, the allegation in C.C.Nos.1143,1144,1145,1146,1147,1148 and 1149 of 2006, 2377,2378,2379 and 2383 of 2007 and Crl.R.PNos.228/2011 & connect. cases :-3-: 273,274,278,279,281 and 282 of 2008 (17 Nos.) is that the accused have failed to pay employee's and employer's contribution to the Provident Fund and Administrative charges for the period from March,1996 to May,1996 (3 months) in spite of demand notice sent to the accused in this regard. Against the judgment of the learned Magistrate and challenging the conviction and sentence, the convicted accused therein approached the Sessions Court by filing Crl.A.Nos. 935,970,954,939,960,937,944, 931,948,934,959,965, 930,952, 968, 940 and 942 of 2009. The Sessions Judge, as per the above referred common judgment, while setting aside the conviction and sentence with respect to the first appellant/first accused, dismissed the appeal with respect to the second appellant/second accused confirming the conviction and sentence. Thus, against the above judgments of the trial court as well as the appellate court, the second accused preferred Crl.R.P.Nos. 244,230,264,251,249,245,269,256,258, 259,255,228, 265,268,261,236 and 266 of 2011. 3. The allegation in C.C.Nos.2369,2370,2381,2382, 2384 of 2007 and 272,275,285,286 and 287 of 2008 and 2373 of 2007 (11 Nos.) is that Crl.R.PNos.228/2011 & connect. cases :-4-: the accused have failed to pay Employee's deposit linked insurance contributions and administrative charges for the periods March 1996 to May 1996 despite of notice. Therefore, they have committed offences under paragraphs 7 and 8 of the said scheme read with Sections 6C, 14 (1B) and 14(2) and 14(A) of the above said Act. Against the judgment of the learned Magistrate and challenging the conviction and sentence, the convicted accused therein approached the Sessions Court by filing Crl.A.Nos. 943,971,938, 951,964,966,963,958,941,955 and 932 of 2009. The Sessions Judge, as per the above referred common judgment, while setting aside the conviction and sentence with respect to the first appellant/first accused, dismissed the appeal with respect to the second appellant/second accused confirming the conviction and sentence. Thus, against the above judgments of the trial court as well as the appellate court, the second accused preferred Crl.R.P.Nos.231,248,229,253,241,250,254, 243,242,262 and 237 of 2011. 4. The allegation in C.C.Nos.1150,1151,1152 of 2006, 2371,2372,2374,2375,2376,2380 of 2007, 276,277,280,283 and 284 of Crl.R.PNos.228/2011 & connect. cases :-5-: 2008 (14 Nos.) is that the accused have failed to pay pension fund contribution of the employees for the period, March,1997 to May,1997. Notices were sent to them asking the accused to pay the contribution, but they did not do so. Against the judgment of the learned Magistrate and challenging the conviction and sentence, the convicted accused therein approached the Sessions Court by filing Crl.A.Nos. 945,933,961, 950,949,969,946,936,947,953,957,956,962 and 967 of 2009. The Sessions Judge, as per the above referred common judgment, while setting aside the conviction and sentence with respect to the first appellant/first accused, dismissed the appeal with respect to the second appellant/second accused confirming the conviction and sentence. Thus, against the above judgments of the trial court as well as the appellate court, the second accused preferred Crl.R.P.Nos. 240,239,238,260,247,233,252,263,235, 232,267,257,234 and 246 of 2011. 5. Thus, it is relevant to note that three sets of complaints were filed against all the accused and after examination of the complainant, cognizance was taken for the above said offences against all the three Crl.R.PNos.228/2011 & connect. cases :-6-: accused in 42 separate calender cases in the court of the Judicial First Class Magistrate, Kunnamkulam. Thus, a formal charge in each case was framed and read over and explained to the accused to which they pleaded not guilty which necessitated further trial of the cases. During the trial, a petition was filed for joint trial of the cases which was allowed by the learned Magistrate and the evidence was recorded in C.C.No.1143 of 2006. Thus, during the trial, the complainant was recalled and examined as PW1 and Exts.P1 to P12 were examined. When the evidence of the complainant was over, the accused were questioned under Section 313 of Cr.P.C. and they have denied the prosecution case as well as incriminating circumstances and evidence. Thereafter, from the side of the defence, DW1 was examined and Exts.D1 to D17 were marked. The learned Magistrate, after considering the evidence and materials on record, disposed of all the cases by a common judgment dated 23.11.2009. By the above judgment, the learned Magistrate has found that accused Nos.1 and 2 are guilty and third accused is found not guilty. Thus, accused Nos.1 and 2 are convicted for the offences charged against them and third accused is Crl.R.PNos.228/2011 & connect. cases :-7-: acquitted. Depending upon the facts and circumstances involved in each case, the learned Magistrate has imposed the sentence of imprisonment and fine against accused Nos.1 and 2. 6. I have heard Sri.Prabin Benny, learned counsel for the revision petitioner and the learned Senior Counsel Sri.S.Gopakumaran Nair and Sri.M.Chandra Bose, learned counsel appearing for the complainant and Sri.V.Tek Chand, learned Public Prosecutor for the State. 7. Though several grounds are taken in the memorandum of revision petition and as this Court is not inclined to interfere with the order of conviction recorded by the courts below, the learned counsel confines his argument with respect to the question of sentence alone. Since the challenge is confined to the sentence, I am of the view that I need not go into the facts, evidence, materials involved in these cases and the correctness, legality and propriety of the conviction recorded by the trial court as well as the appellate court. 8. Learned counsel vehemently submitted that the first accused/firm was engaged in the business of production and distribution of Ayurvedic Crl.R.PNos.228/2011 & connect. cases :-8-: medicines. During the financial year 1996-97, the firm had to face financial crisis due to the high outflow of money and also the firm had to face competition in the market. Thus, according to the learned counsel, the firm could not repay the loan and they defaulted in paying the loan in instalments and the salary of the employees were paid in instalments. It is also pointed out that due to default in paying the salary of the employees, the employees declared strike and because of the financial crisis, the management was forced to declare lockout during the year 1998 and thereafter, the first accused/firm was not functioning. It is also the submission of the learned counsel that because of the above financial stringencies and the lockout, the revision petitioner as well as his wife had to face several litigations before various courts initiated at the instance of the financial institutions, Government Organisations and other private persons. According to the learned counsel, all the movable and immovable assets of the first accused/firm were attached by the Government towards the sales tax arrears and other dues. As there was no prospective buyer though the properties were put in auction, the Government declared the Crl.R.PNos.228/2011 & connect. cases :-9-: said properties as Bought-in-land. Thus, on the basis of the above facts and grounds, the learned counsel submitted that a lenient view may be taken in the matter of sentence. 9. I have carefully considered the above submission. I have also gone through the sentence imposed by the trial court which is approved by the appellate court. 10. The Employees' Provident Funds and Miscellaneous Provisions Act,1952 is a welfare act and the workers are the beneficiaries of such welfare measure. From the facts and circumstances involved in the case and the findings of the court below which are approved by this Court, it can be seen that the revision petitioner has miserably failed to pay the contribution for which he is statutorily liable to pay under various provisions and schemes. The non-payment of the contribution in terms of the provisions of the above Act, Rules and Scheme would result in heavy financial loss to the prosecuting agency and the actual beneficiaries will be deprived of their right and they will be put in hardship. It is also beyond dispute that the complainant has already initiated proceedings, other than Crl.R.PNos.228/2011 & connect. cases :-10-: prosecution, for the realisation of the due amount from the responsible persons including the revision petitioner. The above proceedings are independent proceedings and unaffected by the result of the prosecution launched against the defaulting employers. On a reading of Section 14, it can be seen that discretion is given to the convicting court either to impose imprisonment or fine or both, but subject to the limitations prescribed in Section 14 of the above Act. There are also provisions to various sub- sections of Section 14, by which the court can, after assigning adequate and sufficient reasons, impose sentence of imprisonment for a lesser term. 11. Having regard to the facts and mitigating circumstances indicated above and in view of the discretion granted to the court by virtue of the provisos to Section 14(1A)(b), I am of the view that the sentence of imprisonment inflicted by the courts below requires reconsideration and modification. According to me, the sentence of imprisonment can be reduced to one day simple imprisonment in all the above cases, but the fine amount fixed by the court below requires no interference, since the court has imposed only the minimum fine, as fixed by the statute, with respect to Crl.R.PNos.228/2011 & connect. cases :-11-: the penal provision for which the accused is found guilty. In the result, all the above Criminal Revision Petitions are disposed of confirming the conviction recorded against the revision petitioner by the courts below, in each case and while confirming the conviction, the sentence of imprisonment ordered against the revision petitioner in each case is modified and reduced to one day simple imprisonment, i.e., till the rising of the court and whereas the sentence of fine imposed against the revision petitioner in each case is confirmed and the petitioner is granted three months time to deposit the fine amount and to receive the modified sentence of imprisonment in all these cases. It is made clear that the default sentence fixed by the courts below in each case will be attracted only in case of failure on the part of the petitioner in depositing the fine amount within three months from today. Accordingly, the petitioner is directed to appear before the trial court on 27th May,2011. If there is any failure on the part of the petitioner in appearing before the trial court on the above date and depositing the fine amount on or before the above date, the trial court is free to take coercive steps to secure the Crl.R.PNos.228/2011 & connect. cases :-12-: presence of the petitioner and to execute the sentence and to realise the fine amount. It is also made clear that the modified sentence of imprisonment in all these cases has to be run concurrently. The coercive steps if any pending against the petitioner shall be deferred till 27th May,2011. The above Criminal Revision Petitions are disposed of accordingly. V.K.MOHANAN, Judge. MBS/ Crl.R.PNos.228/2011 & connect. cases :-13-: