IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.244 of 1998 ========================================================== Smt.Usha Rani Rajgarhia, wife of Late Babulal Rajgarhia, Residing at 5/1, Rusel Street, Police Station Park Street, Calcutta 700 017. .... PETITIONER. Versus 1. Union of India, through the Secretary, Ministry of Labour and Rehablitation, Government of India, New Delhi. 2. The Regional Provident Fund Commissioner, Bihar, 2nd Floor, Co-operative bank Building, Ashok Rajpath, Patna 800 004. 3. Assistant Provident Fund Commissioner, Bihar, Patna. 4. Recovery Officer, New Serpentive Road (opposite M.L.A.s Flat), Patna, Bihar. 5. Sub-Divisional Judicial Magistrate, Nawada. 6. Anil Kumar Srivastava, Provident Fund Inspector, Bihar. 7. /s Bhanakhap Mica Mining Co. A Registered Partnership firm having its office at Room No.40, Pre. No.161/1 Mahatma Gandhi Road, Calcutta 700007. 8. Sri Mohal Lal Rajgarhia, One of Bhanakhap Mica Mines Co., Room No.40, at Premison No.161/1, Mahatma Gandhi Road, Calcutta 700007. .... .... RESPONDENTS. ========================================================== For the Petitioner : Mr. Vivekanand Vivek, Advocate. For the Respondents : Mr. Dhanendra Choubey(Asccg) Mr. Ram Shankar Pradhan Mr. Binay Kumar Pandey (Cgc) ========================================================== P R E S E N T HON’BLE MR. JUSTICE ADITYA KUMAR TRIVEDI A.K. Trivedi, J. Petitioner, Usha Rani Rajgarhia filed instant writ with a prayer for quashment of all the criminal cases pending before Sub-divisional Judicial Magistrate, Nawada as well as certificate proceeding pending before Regional Provident Fund Commissioner, Bihar. It has been submitted that firm M/s Bhanakhap Mica Mining Company happens to be partnership firm and happens to be ancestral property. In the year 1957 Partition Suit No.642 of 2 1957 was filed before the Hon’ble Court, Caltutta at the behest of Bajrang Rajgarhia as well as Mohan Lal Rajgarhia which was referred to arbitration followed with award which was accepted by the parties and in pursuance thereof, petitioner are got half share and in the aforesaid background, there was new constitution of partnership consisting the petitioner along with Purushottam Lal Rajgarhia, Mahavir Prasad Rajgarhia, Basudeo Lal Rajgarhia , Madhura Prasad Rajgarhia, Ram Narayan Rajgarhia . Although petitioner stood as one of the partner but on account of illness (Annxure-1) she became sleeping partner and the day-to-day affair was looked after by other partners. In due course of time in the year 1989 petitioner retired from partnership having a privilege that she will not be responsible for any previous liability. In pursuance thereof petitioner had already informed the official concerned with regard thereto. In spite of having occupying the aforesaid status, the official of Employees Provident Fund filed criminal cases against the petitioner bearing Case No.308 of 1987, 309 of 1987, 310 of 1987, 311 of 1987 to 373 of 1987 under Section 14(1A), 14(1B), of the EPF and Miscellaneous Proceeding Act, 1952 as well as para 76(d) of the EPF Scheme 1952 read with Section 14(2), 14(a) of the aforesaid Act. Further a certificate proceeding has also been launched before Regional Provident Fund Commissioner, Bihar under Certificate Case No.2 of 1990, 3 of 1990. Then submitted that as the petitioner happens to be a sleeping partner 3 therefore she cannot be held responsible nor any proceeding should be launched against her as such submission is that the criminal proceeding as well as the certificate proceeding is liable to be quashed. Also referred 1986 PLJR 410, (2002) 7 SCC 655, 1981 (2) SCC 335, 1971 AIR SC 2162, 2011(3) PLJR 100, (1995) 4 SCC 580. Refuting the allegation, the State by filing counter affidavit has submitted that the petitioners have filed instant petition for quashing of 68 cases which is not at all maintainable because of the fact that each case gives an independent cause, therefore, altogether 68 cases should have been filed so far criminal cases are concerned. With regard to certificate proceeding, it has been submitted that prayer has been made for quashing of two certificates proceeding which has got two independent cause and for that two independent writs should have been filed. Therefore, in the aforesaid facts and circumstances of the case there cannot be clubbing of relief as all the cases have got their independent identity. Moreover, the petitioners have not filed certified copy of the compliant of all the cases followed with cognizance order and in likewise manner the certified copy of both the case of certificate proceeding has not been filed as such the petition in its present form is not at all maintainable. Further been submitted that cognizance has been taken in the year 1987 while the instant proceeding has been brought up after expiry of eleven years and the delay so caused 4 is not explained hence the petitioners are not entitled for any relief whatsoever been sought for. Then submitted that there is no material on record to suggest that petitioner happens to be a sleeping partner. Mere assertion of petitioner without supported with any positive, concrete material is not at all acceptable nor is maintainable. So the petition is fit to be dismissed. From the Annexures attached with main petition, it is evident that no copy of complaint petition as well as certified copy of order has been annexed nay the certified copy of certificate proceeding has been filed. Subsequently, an amendment petition was filed with regard to amendment of para- 1 of the petition and further Annexure-9 Series has been annexed which happens to be 9(A) Case No.370 of 1987, 375 of 1987, and Annexure-10(A) order of cognizance dated 08.12.1987 in Compliant Case No.370 of 1987 as well as (B) order dated 08.12.1988 of Compliant Case No.375 of 1987, that means to say save and except filing of aforesaid two complaint, order of cognizance, no certified copies of other cases have been filed. For want of certified copy of respective complaint petition as well as order, certified copies of certificate proceeding and its order, the writ petition against the cases save and except against Complaint Case No.370 of 1987 as well as 375 of 1987 is not found to be maintainable and accordingly, the same is dismissed in limine. Now, coming to Case No. 370 of 1987 as well as Case 5 No.375 of 1987, the aforesaid two complaints were filed on account of non deposit of the amount of Employees Provident Fund Office by the firm M/s Bhanakhap Mica Mining Company for the successive months of 6/84 to 8/84 as well as 9/85 to 11/85 with regard to employee concerned. To support her plea as a sleeping partner, Annexure- 1 has been filed to say that petitioner happens to be chronic patient. After going through the aforesaid document it is evident that it happens to be of the year 1996 and 1997. Now coming to the other annexures, Annexure-2 happens to be an affidavit dated 21.04.1987 sworn by one Mohan Lal Rajgarhia one of the partner supporting the plea of the petitioner regarding sleeping partner. The aforesaid document was created a month earlier from the date on which complaint (Annexure-9/B) was filed. Annexure-9/A happens to be of 30.11.1987. So creation of document in the aforesaid background became under suspicious circumstance and further its genuineness is not at all supported by any other document. The occurrence so alleged happens to be of the year 1984 to 1985 and as such the presence of Annexure- 2 is found to be of not of much relevance. Subsequently, documents are the document hit by law of lis pendence. There is no controversy with regard to settled principal of law that sleeping partner cannot be clubbed in a criminal proceeding along with the active partner who is responsible for day-to-day affair. However, it is upon the party to 6 prove by at least through a reliable material that he remained sleeping partner from the day of creation of partnership firm. Save and except Annexure-2 no other document has been placed to support the plea of the petitioner that she happens to be a sleeping partner. Thus, taking into account the totality of event, the prayer of the petitioner is found to be devoid of merit. Consequent thereupon, petition is dismissed. Patna High Court Dated 23rd November, 2011 A.F.R. Prakash Narayan (Aditya Kumar Trivedi,J.)