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. 2705 of 2004(C) ------------------------------- CRA.274/2001 of ADDL. DISTRICT COURT, THODUPUZHA CC.448/2001 of JUDL. MAGISTRATE OF FIRST CLASS, PEERUMEDU .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED 1 AND 2: ------------------------------------------------ 1. M/S.RAM BAHADUR THAKUR LIMITED, NELLIKAI ESTATE, VANDIPERIYAR REP. BY C.B.SHARMA, CHAIRMAN, M/S.RAM BAHADUR THAKUR LIMITED, SAMUDRA MAHAL 25TH FLOOR, DR.ANNIE BESANT ROAD, WORLI, MUMBAI. 2. C.B.SHARMA, CHAIRMAN, M/S.RAM BAHADUR THAKUR, LIMITED, SAMUDRA MAHAL, 25TH FLOOR, DR.ANNIE BESANT ROAD, WORLI, MUMBAI. BY ADV. SRI.JOSEPH KODIANTHARA RESPONDENT(S): COMPLAINANT AND STATE: ------------------------------------- 1. T.A.VARGHESE, ENFORCEMENT OFFICER (INSPECTOR), EMPLOYEES PROVIDENT FUND, SECOND MILE, PALLIVASAL P.O. IDUKKI DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.N.N. SUGUNAPALAN, SC, P.F. FOR R1 R2 BY PUBLIC PROSECUTOR SRI K.J.MOHAMED ANZAR 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. 2705 of 2004 ------------------------------------------------------ Dated: DECEMBER 22, 2009 ORDER The revision petitioners are accused Nos.1 and 2 in C.C. No.448/2001 of Judicial First Class Magistrate Court, Peerumedu. They, along with accused Nos.3, 4 and 8, are convicted under sec.6C read with sec.14(1B) and 14A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (for short, the EPF Act) and paragraphs 7 and 8 of the Employees Deposit Linked Insurance Scheme, 1976. Accused Nos.1, 2 and 8 were found guilty under sec.255(2) Cr.P.C. of commission of offence punishable under sec.6C of the EPF Act and were sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.4000/- each, in default to undergo simple imprisonment for a further period of one month. Accused Nos.3 and 4 were found not guilty and were acquitted under sec.255(1) Cr.P.C. Proceedings against accused Nos.5 to 7 were dropped by the trial court as per order in CMP 5236/1998. On appeal by accused Nos.1 and 2 as Crl.A.274/2001 of Addl.District and Sessions Court, Thodupuzha, the lower appellate court convicted them under sec.14(1B) of the EPF Act and modified the sentence against the 1st accused as fine of Rs.4000/- only and the sentence against the 2nd accused as simple imprisonment for three months and Crl.R.P. 2705/04 2 a fine of Rs.4000/-, in default of payment of fine, 2nd accused to undergo simple imprisonment for one month more. The appeal by the 8th accused as Crl.A.34/2002 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 and 2 have now come up in revision challenging their conviction and 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 Jly, 1995, the 1st accused company effected recovery of Rs.2570/- and 2498/- respectively towards Fund Contribution and Rs.51.40 and Rs.50/- respectively towards administrative charges from the salary of the Crl.R.P. 2705/04 3 employees in Nellikkai Estate, but the company failed to remit those amounts together with its contribution, which is equal to the employees' contribution, 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 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 and other accused persons 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 to 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 3 were examined and Exts.D1 to D6 were marked. 4. The trial court on an appreciation of evidence found the revision petitioners and the 8th accused guilty of the offence alleged against them, convicted them and sentenced them as aforesaid. On appeal by Accused Nos.1 and 2, the lower appellate court convicted them under sec.14(1B) of the EPF Act and modified the sentence against the 1st accused as fine of Rs.4000/- only and the sentence Crl.R.P. 2705/04 4 against the 2nd accused as simple imprisonment for three months and a fine of Rs.4000/-, in default of payment of fine, 2nd accused to undergo simple imprisonment for one month more. Accused Nos.1 and 2 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.14(1B) of the EPF Act by the lower 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 Crl.R.P. 2705/04 5 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 both the courts below 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 Family Pension Scheme is confirmed. They are sentenced to pay a fine of Rs.4000/- each, in default revision 2nd petitioner 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. 12504 of 2004 Dismissed. 22.12.2009 P.Q. BARKATH ALI, JUDGE mt/-