IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 Crl.MC.No. 950 of 2009() ---------------------------------- ST.1392/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... PETITIONER(S): ACCUSED ---------------------- 1. THIRUVANANTHAPURAM TALUK EDUCATIONAL CO-OPERATIVE SOCIETY LIMITED NO.T.690, OPPOSITE AYURVEDA COLLEGE, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. N.GIRIDHARAN NAIR, FORMER SECRETARY IN-CHARGE, M/S.CO-OPERATIVE ARTS & SCIENCE COLLEGE, (A UNIT OF THIRUVANANTHAPURAM TALUK EDUCATIONAL CO-OPERATIVE SOCIETY LIMITED NO.T. 690),OPPOSITE AYURVEDA COLLEGE, THIRUVANANTHAPURAM 3. M.JAYAKUMAR, FORMER ADMINISTRATIVE COMMITTEE MEMBER, THIRUVANANTHAPURAM TALUK EDUCATIONAL CO-OPERATIVE SOCIETY LIMITED NO.T. 690, DHARMALAYAM ROAD, THAMPANOOR, THIRUVANANTHAPURAM. BY ADV. MR.NAGARAJ NARAYANAN RESPONDENT(S): COMPLAINANT -------------------------- ENFORCEMENT OFFICER, EMPLOYEES PROVIDENT FUND ORGANIZATION, PATTOM, THIRUVANANTHAPURAM-4. BY MR.N.N. SUGUNAPALAN, SENIOR ADVOCATE SC, P.F. FOR R1 BY ADV. SMT.T.N.GIRIJA, SC,EPF ORGANISATION FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/03/2009, ALONG WITH CRMC NO. 964 OF 2009 AND CONNECTED CASES THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- CRL.M.C.Nos. 950, 964, 965, 966, 971, 972, 978, 979 & 985 OF 2009 --------------------------------- Dated this the 24th day of March, 2009 O R D E R All these petitions are filed with a prayer to quash the proceedings pending before the Judicial First Class Magistrate Court-III, Thiruvananthapuram as S.T. Nos. 1392, 1391, 1397, 1399, 1393, 1394, 1398, 1396 and 1395 of 2005. These complaints have been preferred for proceeding against the accused therein under Section 14(C) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and with a further direction to pay compensation under Section 357 of the Crl. P.C. 2. The description of the accused in the complaint would reveal that the 1st accused is the Institution itself and accused Nos. 2 and 3 are described as Sri. N. Giridharan Nair, Secretary- in-charge and Sri. M. Jayakumaran Nair, Administrative Committee Member respectively. The arguments raised by the learned counsel for the petitioner is on the basis of three decisions i.e Anantharamaiah Woollen Factory v. State [1981 LAB. I.C 538], Transport Corporation of India Ltd. v. CRL.M.C.Nos. 950, 964, 965, 966, 971, 972, 978, 979 & 985 OF 2009 -2- R.M. Gandhi [1991 LAB. I.C 2017], and K.N. Genda and another v. State [1982 LAB. I.C 1777]. The first decision is of the Karnataka High Court wherein it is stated that unless specific details regarding the persons in-charge of the affairs of the establishment is properly pleaded, a prosecution may not lie. In the second Bombay decision also the same point is laid down and a Division Bench of the Calcutta High Court in the third decision reiterated the same and stated the averments that accused were the persons in-charge of the establishment and were responsible to it for the conduct of its business is not sufficient. 3. A perusal of the complaint in para 3 and 5 would show the averment is to the effect “that the accused 1, 2 and 3 are the persons in charge of the said establishment and were responsible to it for the conduct of its business during the period mentioned in paragraph 4 hereunder.” The same is reiterated in paragraph 5 as well. Therefore the learned counsel for the petitioner would contend that there is no proper description which can make one liable to be prosecuted under the provisions of the Act. On the CRL.M.C.Nos. 950, 964, 965, 966, 971, 972, 978, 979 & 985 OF 2009 -3- contra, the learned counsel for the respondent had cited the decision reported in Srikanta Datta Narasimharaja Wodiyar v. Enforcement Officer, Mysore [AIR 1993 SC 1656], wherein the Apex Court held the view that when particulars are given in the Form 5A it is of a binding nature and since he had declared as one of the persons in-charge and responsible for the conduct of the business of the establishment, he may be liable. In support of the same, the learned counsel made available before me a copy of the Form 5A wherein the name of accused Nos. 2 and 3 are shown as dated from which in position as 16.6.2003 and 3.5.2004. But it is only a photocopy. So the matter requires consideration and it has to be ascertained whether there are Form 5A declarations available especially in the backdrop of the dispute raised by the accused in the case. In all cases it need not be produced along with the complaint for the reason that if it is not disputed then a question may not arise at all on that regard. The learned counsel for the petitioner has also brought my notice to a Government Order whereby there was Government administration for the period from 11.7.2002 to CRL.M.C.Nos. 950, 964, 965, 966, 971, 972, 978, 979 & 985 OF 2009 -4- 28.2.2006. There was a part time Administrator and Administrative Committee which consisted of the following members indicating that it was under the Government Administration. So there are conflicting averments prima facie before me and it requires independent consideration to resolve the issue regarding the real actual and factual position. So it may not be possible at this stage to quash all the complaints under Section 482 of the Crl.P.C. But I feel the matter can be considered by the court below when an appropriate application is filed for the purpose of discharge for the reason that the contention goes into the root of the matter. So reserving the liberty to the complainant as well as the accused to submit their contentions and the decisions they rely upon, I close this Criminal Miscellaneous Cases. For the purpose of determination by the court below, the dictum relied upon by the prosecuting agency be produced so that the court will be able to arrive at a decision on that point. The court also has to consider the Government Order which may have a very important part on the whole process. Since the maximum punishment is for CRL.M.C.Nos. 950, 964, 965, 966, 971, 972, 978, 979 & 985 OF 2009 -5- three years and as prima facie strong legal questions are involved the Magistrate can convert the cases in to warrant trial, permit the petitioners to file applications for discharge and consider them in accordance with law. The Crl.M.Cs are disposed of accordingly. M.N. KRISHNAN, JUDGE vkm