IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 Crl.Rev.Pet.No. 207 of 2004(A) ------------------------------ CRA.70/2001 of ADDL. DISTRICT COURT, THODUPUZHA ST.1174/1996 of JUDL. MAGISTRATE OF FIRST CLASS, PEERUMEDU .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED 1 TO 4: ----------------------------------------------- 1. M/S. RAM BAHADUR THAKUR LIMITED, PAMBANAR ESTATE, PEERMEDU REPRESENTED BY C.B. SHARMA, CHAIRMAN, M/S. RAM BAHADUE THAKUR LIMITED, SAMUDRA MAHAL, 25TH FLOOR, DR.ANNIE BEASANT ROAD, WORLI, BOMBAY. 2. C.B. SHARMA, CHAIRMAN, M/S. RAM BAHADUR THAKUR LIMITED, SAMUDRA MAHAL, 25TH FLOOR, DR. ANNIE BESANT ROAD, WORLI, BOMBAY. 3. MANOJ MOHAN SHARMA, DIRECTOR, M/S. RAM BAHADUR THAKUR LIMITED SAMUDRA MAHAL, 25TH FLOOR, DR. ANNIE BESANT ROAD, WORLI, BOMBAY. 4. S.M. SHARMA, DIRECTOR, M/S. RAM BAHADUR THAKUR LIMITED, SAMUDRA MAHAL, 25TH FLOOR, DR.ANNIE BESANT ROAD, WORLI, BOMBAY. BY ADV. SRI.JOSEPH KODIANTHARA SRI.MATHEWS K.UTHUPPACHAN SRI.BINU MATHEW RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE: ---------------------------------------------- 1. J. THULASEEDHARAN PILLAI, ENFORCEMENT OFFICER, (INSPECTOR) EMPLOYEES PROVIDENT FUND, SECOND MILE, PALLIVASSAL P.O., IDUKKI DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.GOPAKUMARAN NAIR, SC, P.F. FOR R1 R2 BY PUBLIC PROSECUTOR SRI C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 207 of 2004 ------------------------------------------------------ Dated: DECEMBER 22, 2009 ORDER The revision petitioners are accused Nos.1 to 4 in S.T.Case No.1174/1996 of Judicial First Class Magistrate Court, Peerumedu. They, along with the 8th accused, are convicted under sec.14(2A) read with sec.6A(2) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (for short, the EPF Act) read with paragraphs 9 and 10 of Employees Family Pension Scheme, 1971. They, along with accused No.8, were sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs.5000/- each under sec.14(2A) of the EPF Act, in default to undergo simple imprisonment for one month. Proceedings against accused Nos.5 to 7 were dropped by the trial court as per order in CMP 5428/1998 dated 9.2.1999. On appeal by accused Nos.1 to 4 as Crl.A.70/2001 of Addl.District and Sessions Court, Thodupuzha, the lower appellate court altered the charge into sec.41(d) of Family Pension Scheme and confirmed the substantive sentence, but reduced the fine to Rs.4000/-. The appeal by the 8th accused as Crl.A.58/2001 was allowed by the lower appellate court and he was found not guilty and acquitted of all the charges levelled against him. Accused Nos.1 to 4 have now come up in revision challenging their conviction and Crl.R.P.207/04 2 sentence. 2. The 1st accused/1st revision petitioner is a limited company having 9 estates in Idukki District and engaged in agricultural activities. The 2nd accused is the Chairman and accused Nos.3 to 7 are the Directors of the company. The 8th accused is the Manager of the estates. The 1st respondent, the Enforcement Officer, Employees Provident Fund in Idukki District filed the complaint before the trial court alleging that the accused persons, in violation of the mandatory provisions of the EPF Scheme of 1971 failed to remit the Family Pension Fund contribution of the company's employees together with the employer's share of contribution and thereby committed the offence punishable under paragraph 76(d) of the EPF Scheme, 1952 read with sec.14(1A), 14(2) and 14(A) of Provident Funds Scheme. It is alleged in the complaint that for the months of June and July, 1995, the 1st accused company failed to remit an amount of Rs.18172/- and Rs.18808/- respectively towards the Family Pension Fund Contribution which include the employees' share and employer's share in respect of Pambanar Estate within 15 days from the close of the respective months, and that accused Nos.2 to 8 are the persons in charge and responsible for the conduct of the business of the establishment of the 1st accused company and hence they are liable for Crl.R.P.207/04 3 the non-payment of the dues. The complaint was filed after getting the required sanction for prosecution from the competent authority, who in this case is the Regional Provident Fund Commissioner, Kerala. 3. The revision petitioners on their appearance before the trial court pleaded not guilty to the charge mentioned above. The complainant officer was examined as PW.1 and Exts.P1, P2, P3 series and P4 were marked on his side. When questioned under sec.313 of Cr.P.C. the accused persons denied the allegations. On the side of the accused persons Dws.1 to 4 were examined and Exts.D1 to D3, D4 series, D5 series, D6 series and D7 and D8 were marked. 4. The trial court on an appreciation of evidence found the revision petitioners guilty of the offence alleged against them, convicted them and sentenced them as aforesaid. On appeal by Accused Nos.1 to 4, the lower appellate court altered the charge to sec.41(d) of Family Pension Scheme and confirmed their substantive sentence, but reduced the fine to Rs.4000/-. Accused Nos.1 to 4 have now come up in revision challenging their conviction and sentence. 5. Heard the counsel for the revision petitioners and the counsel for the revision 1st respondent and also the Public Prosecutor. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioners under sec.41(d) of the Family Pension Scheme by the lower Crl.R.P.207/04 4 appellate court can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No. I 7. When the revision petition came up for hearing counsel for the revision petitioners submitted that the entire dues from the company has already been paid and produced the information obtained under the Right to Information Act to the effect that the entire dues upto 1996-97 outstanding with the 1st accused company has already been paid, which is also not disputed by the other side. Counsel for the 1st respondent argued that the respondent should be permitted to recover any other dues which are not paid by the 1st accused company. Therefore I confirm the conviction of the revision petitioners under sec.41(d) of the Employees Family Pension Scheme. Point No.II 8. Taking into consideration the fact that the revision petitioners have paid the entire dues upto 1996-97, I feel that the sentence imposed against the revision petitioners can be reduced to the fine amount only. In the circumstances I feel that the fine of Rs.4000/- imposed by the lower appellate court would meet the ends of justice. In the result the revision petition is allowed in part. The conviction of the revision petitioners under sec.41(d) of the Employees Crl.R.P.207/04 5 Family Pension Scheme is confirmed. They are sentenced to pay a fine of Rs.4000/- each, in default revision petitioners 2 to 4 to undergo simple imprisonment for three months. One month time is granted for payment of fine. The amount, if any, deposited by the accused persons before the trial court shall be adjusted towards the fine imposed. P.Q. BARKATH ALI, JUDGE CRL.M.A. 780 of 2004 Dismissed. 22.12.2009 P.Q. BARKATH ALI, JUDGE mt/-