IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 OP.No. 8216 of 1999(C) -------------------------------- PETITIONER(S): ---------------------- P.R. PREMKUMAR, S/O.P. PARAMESWARAN, AGED 34, EXECUTIVE DIRECTOR, HINDUSTANY CYLINDER COMPANY LTD., 16/131 EASWARAVILASAM ROAD, COTTON HILL, TRIVANDRUM-14. BY ADV. MR.G.S.REGHUNATH RESPONDENT(S): ------------------------ THE ENFORCEMENT OFFICER, EMPLOYEES PROVIDENT FUND OFFICE, PATTOM, TRIVANDRUM. BY ADV. MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 8216 of 1999(C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER SENT BY THE CANARA BANK TO THE PEITIONER ON 12/12/1998. EXT.P1(a): COPY OF THE LIST OF PARTICIPANTS OF THE JOINT MEETING ON 09/12/1998 BY THE CANARA BANK. EXT.P1(b): COPY OF THE SUMMORY PROCEEDINGS OF THE JOINT MEETING ON 09/12/1998 BY THE CANARA BANK. EXT.P2: COPY OF THE RELEVANT PAGES OF THE OPERATING AGENCY REPORT DETAILING THE MEASURES OF REHABILITATION. EXT.P3: COPY OF THE ORDER DATED 27/03/1998 ON CMP.10822/98 IN O.P. NO. 6066/98 OF THIS HONOURABLE COURT. EXT.P4: COPY OF THE ORDER DATED 26/05/1998 ON CMP.10822/98 IN O.P. NO. 6066/98 OF THIS HONOURABLE COURT. EXT.P5: COPY OF THE COMPLAINT IN CRIMINAL CASE NO.255/97 FILED BY 1ST RESPONDENT BEFORE THE 1ST CLASS JUDICIAL MAGISTRATE COURT-II, NEYYATTINKARA. EXT.P6: COPY OF THE COMPLAINT IN CRIMINAL CASE NO.256/97 OF DO. DO. EXT.P7: COPY OF THE COMPLAINT IN CRIMINAL CASE NO.257/97 OF DO. DO. EXT.P8: COPY OF THE COMPLAINT IN CRIMINAL CASE NO.258/97 OF DO. DO. EXT.P9: COPY OF THE COMPLAINT IN CRIMINAL CASE NO.259/97 OF DO. DO. EXT.P10: COPY OF THE COMPLAINT IN CRIMINAL CASE NO.260/97 OF DO. DO. EXT.P11: COPY OF THE MINUTES OF THE BOARD MEETING HELD ON 21/08/1996. EXT.P12: COPY OF THE REVISED REPORT FILED BY THE OPERATING AGENCY APPOINTED BY BIFR. EXT.P13: COPY OF THE LETTER SENT TO THE PETITIONER. EXT.P14: COPY OF THE SUMMARY PROCEEDINGS OF THE JOINT MEETING HELD ON 07/04/2000. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE COMMUNICATION SENT BY THE 1ST RESPONDENT. //TRUE COPY// P.S. TO JUDGE rs. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 8216 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 24th November, 2009. J U D G M E N T The petitioner is the Executive Director of a Company in liquidation. Prosecution proceedings have been initiated against the petitioner for non-compliance with the provisions of the Employees Provident Funds and Miscellaneous Provisions Act by issuing Exts. P5 to P10 complaints. The petitioner is challenging the same. 2. The contention of the petitioner is that at the time when the alleged cause of action for prosecution arose, he was not a Director of the Company. Exts.P5 to P10 complaints are issued for non- payment of amounts due under the Employees Provident Funds and Miscellaneous Provisions Act for the period from 15-10-1995 to 15- 12-1995, 15-1-1996 to 15-3-1996, 15-10-1995 to 15-12-1995, 15-1- 1996 to 15-3-1996 15-1-1996 to 15-3-1996 and 15-10-1995 to 15-12- 1995. According to the petitioner, the petitioner became a Director of the Company only in August, 1996, well after the alleged default giving rise to the complaint in the prosecution proceedings arose. The petitioner would contend that insofar as he had no control whatsoever over the affairs which led to the prosecution proceedings, he cannot be prosecuted for the same. He further contends that at the relevant time, the Company was registered with the Board of Industrial Reconstruction and Finance under the Sick Industrial Companies (Special Provisions) Act as a sick Company. Subsequent to filing the original petition, the BIFR recommended winding up of the Company and accordingly an order of winding up has been passed in C.P.No. 30/2006 by this Court, proceedings in which are continuing. The petitioner therefore submits that the petitioner cannot be prosecuted for the alleged offence with which he had no connection whatsoever. 3. Learned counsel for the Provident Fund Organisation O.P. No. 8216/1999 -: 2 :- disputes the same. According to him, neither the proceedings under the Sick Industrial Companies (Special Provisions) Act nor the proceedings in the Company Petition can affect the prosecution proceedings for offences committed under the Employees Provident Funds and Miscellaneous Provisions Act. He relies on two decisions, one of the Andhra Pradesh High Court and the Supreme Court in Andhra Sinters Ltd. v. P.F. Inspector, 1994(1) LLJ 1171 and Kusum Ingots & Alloys Ltd., v. Pennar Peterson Securities Ltd., 2000 Crl. Law Journal, 1464 in support of this contention. He submits that the fact that the petitioner was not a Director at the time when the offence were committed cannot absolve the petitioner from the liability for prosecution. According to him, he is liable for the past acts of the Company also. Lastly, counsel would contend that for quashing a complaint before a criminal court, proceedings under Article 226 of the Constitution of India is not the appropriate remedy and therefore the petitioner should be relegated to the remedy by way of filing a petition under Section 482 of the Crl. P.C. 4. I have considered the rival contentions in detail. 5. Regarding the contention of the respondents that the original petition under Article 226 of the Constitution would not lie when a remedy under Section 482 of the Crl. P.C is available, I am of opinion that since the Supreme Court has held that in appropriate cases, the High Court can exercise jurisdiction under Article 226 of the Constitution also for quashing a complaint, I need not relegate the petitioner to that remedy insofar as the two remedies are exactly identical in content, that too, at this point of time. I am inclined to consider this original petition in view of the very peculiar circumstances obtaining in this original petition which are detailed in the beginning of this original petition. Of course, it cannot be O.P. No. 8216/1999 -: 3 :- disputed that proceedings under the Sick Industrial Companies (Special Provisions) Act or the proceedings in a Company Petition for winding up cannot affect the prosecution proceedings. But, it is a fact that at the relevant time, when the offence is stated to have been committed, the petitioner was not a Director of the Company. As such, the petitioner had absolutely no control over the situation prevailing when the offences were committed and he was nsot in a position to prevent the commission of the offence also. He was not one among the persons who were responsible for the offences. That being so, I do not think that the petitioner can be prosecuted for the offences in respect of which he had absolutely no knowledge whatsoever. Therefore, Exts. P5 to P10 are quashed. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/