IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 Crl.MC.No. 4041 of 2009() ------------------------------------ CC.274/2006 of CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA .................... PETITIONER(S): ----------------------- 1. DINESH AGARWAL, 605 A ASISH COMPLEX-1, CSC ROAD NO.4, DAHISA, MUMBAI-400 068. 2. B.K.AMETA, PLOT.NO.56, ROAD.NO.17, MIDC, ANDHERI (E), MUMBAI. BY ADV. MR.R.AZAD BABU RESPONDENT(S): -------------------------- ENFORCEMENT OFFICER, DISTRICT OFFICE, EMPLOYEES' PROVIDENT FUND ORGANISATION, MINISTRY OF LABOUR, GOVT. OF INDIA, ALAPPUZHA-688 011. BY ADV. MR.GEORGE V THOMAS, SC EPF ORGANISATION MR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE ADV. MR.M.CHANDRA BOSE. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/03/2010, ALONG WITH CRMC NO. 4042 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. ------------------------------ Crl.M.C.No.4041 & 4042 of 2009 ------------------------------ COMMON ORDER Petitioners are accused 3 and 4 in C.C.Nos. 273/2006 and 274/2006 on the file of Chief Judicial Magistrate's Court, Alappuzha. These petitions are filed to quash the cognizance taken as against them on a complaint filed by the respondent alleging commission of offences under Sections 6C, 14(1B) and 14A of Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and Employees' Deposit Linked Insurance Act, 1976. 2. Learned counsel appearing for the petitioners and learned standing counsel appearing for the respondent were heard. 3. Argument of the learned counsel appearing for the petitioners is that in C.C.No.273/2006, learned Magistrate has taken cognizance on a complaint filed by the respondent and in paragraph 7 of the complaint, it is specifically alleged that during the relevant period accused 2 and 5 were in charge of the establishment and were responsible for the conduct of its business and/or CRMC 4041&4042/09 2 as the aforesaid offences were committed by the said establishment with their consent or connivance or were attributable to their neglect, the said accused persons have committed the offences. It is argued that in view of the specific contentions, learned Magistrate should not have taken cognizance as against the petitioners. 4. Learned standing counsel appearing for the respondent submitted that there is a clerical error in paragraph 7 of the complaint and instead of accused 2 to 5, it was inadvertently shown as accused 2 and 5 were, during the relevant period, in charge of the establishment and were responsible for the conduct of its business. In paragraph 3 of the complaint it is stated that accused 2 to 5 were the persons in charge of the establishment and were responsible for the conduct of its business. 5. It is to be borne in mind that in respect of the same Company, learned Magistrate has taken cognizance on a complaint filed by the respondent as C.C.No.274/2006. Failure to pay contribution in that case was also during the very same period. In paragraph 3 of the complaint, it has been specifically alleged CRMC 4041&4042/09 3 that accused 2 to 5 were, during the relevant period, the persons in charge of the establishment and were responsible for the conduct of its business. In paragraph 5 also, it is alleged that accused 2 to 5 were, during the relevant period, in charge of the establishment and were responsible for the conduct of its business and as the aforesaid offences were committed by the establishment due to the neglect of the accused persons on or about the dates mentioned in paragraphs 7 and 8, they are liable. In the light of the contentions, I cannot agree with the submission of the learned counsel appearing for the petitioners that cognizance taken as against the petitioners is bad. In any way, it is a matter to be considered at the time of trial. Petitioners are at liberty to raise all these contentions before the Magistrate at the time of trial. Petitions are disposed. 2nd March, 2010 (M.Sasidharan Nambiar, Judge) tkv