IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 Crl.MC.No. 3044 of 2009 --------------------------------------- CC.80/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST), MANJERI .................... PETITIONERS/ACCUSED: 1. MAJOR RAVINDRAN, PROPRIETOR, THE CAVALIER PRIVATE LIMITED, 80 FT.ROAD, SUBNA PANDYA, BANASAVADI MAIN ROAD, BANGALORE. 2. P.SAMPATH KUMAR, MANAGER, DO. DO. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS/COMPLAINANT: 1. BALAKRISHNAN, S/O.LATE DAMODARAN NAIR, NEKKAMVALLY, KUNNAMANGALAM, KOZHIKODE. 2. S.I.OF POLICE, KONDOTTY POLICE STATION KONDOTTY, MALAPPURAM. 3. REGIONAL PROVIDENT FUND COMMISSIONER-II, S.A.O., LAKSHMI COMPLEX, N.H.4, OLD MADRAS ROAD, K.R.PURAM, BANGALORE. 4. PROVIDENT FUND INSPECTOR, PROVIDENT FUND OFFICE, MALAPPURAM. 5. PROVIDENT FUND OFFICER, PROVIDENT FUND OFFICE, KOZHIKODE. 6. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.SAKIR.K.H. FOR R1 ADV.SRI.THOMAS MATHEW NELLIMOOTTIL- R3 TO R5 PUBLIC PROSECUTOR SRI.AMJAD ALI-R2 & R6 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3044 of 2009 -------------------------- ORDER Petitioners are the accused in C.C.No.80/2008 on the file of Judicial First Class Magistrate's Court -II (Forest), Manjeri. Prosecution case is that first petitioner, being the Proprietor and second petitioner, the Manager of M/s.Cavalier Private Ltd., did not remit the Employees' Provident Fund (EPF) contribution payable in respect of first respondent and his co- workers and thereby committed offences under Sections 403, 406, 408, 409, 417 and 420 read with Section 34 of Indian Penal Code. Learned Magistrate took cognizance of the offences on Annexure-C final report. Annexure-D certificate was produced by the first respondent and his co-workers before the learned Magistrate stating that though a complaint was lodged against the petitioners stating that petitioners did not remit the EPF contribution, they have later received the contribution in full and hence, they have no grievance against the petitioners and therefore, the case is to CRMC 3044/09 2 be withdrawn. This petition is filed under Section 482 of Code of Criminal Procedure contending that in view of the settlement of all the disputes with the first respondent and his co-workers, it is not in the interest of justice to continue the prosecution. 2. Respondents 3 to 5, Regional Provident Fund Commissioner, Provident Fund Inspector and Provident Fund Officer, filed a joint statement to the effect that based on a complaint, which was sent for investigation under Section 156(3) of Code of Criminal Procedure, Crime No.151/2005 of Kondotty Police Station was registered and on investigation, a final report was submitted and M/s.Cavalier Private Ltd. is owned by the first petitioner and the establishment is covered under the provisions of EPF Act and MP Act with effect from 1.12.2000 and under sub paragraph 3 of paragraph 32 of Employees Provident Fund Scheme, any sum deducted by an employer or contractor from the wages of an employee under the scheme shall be deemed to have been entrusted to him for the purpose of paying the contribution in respect of which it was deducted and as per paragraph 30, petitioner was required to pay the sum to the EPF CRMC 3044/09 3 Trust Fund inclusive of the share of the employer and he has to pay the sum within fifteen days from the closing of the month for which the amount is due and deductions have been made from the wages of the employees, failing which, it has to be presumed that the amount is dishonestly used and any misappropriation of the recovered money from the employees' wages attracts the offences under Sections 405 and 406 of Indian Penal Code, which are of serious nature and hence, they cannot be quashed. It is contended that by remittal of the EPF contribution belatedly, the offences already committed cannot be wiped out. 3. First respondent filed an affidavit stating that entire disputes between the petitioners and first respondent and his co-workers, who are also the complainants, were amicably settled and in such circumstances, he has no objection for quashing the proceedings. 4. As per Annexure-C final report, breach of trust committed by the petitioners is not against the EPF officials or EPF Trust Fund, but only as against the employees, from whom amounts were deducted from their CRMC 3044/09 4 wages, but not remitted. All the offences, except the offence under Section 409 of Indian Penal Code are compoundable. An offence under Section 409 of Indian Penal Code is attracted because petitioners, in their capacity as agents, being the employers, allegedly committed the offence. Though an offence under Section 409 of Indian Penal Code is not compoundable, as held by the Apex Court in Madan Mohan Abbot v. State of Punjab (2008 (3) KLT 19), when there is a complete settlement of all the disputes between the accused and defacto complainants, it is not in the interest of justice to continue the prosecution. 5. Though learned counsel appearing for respondents 1 to 3 argued that payment of EPF contribution belatedly will not obliterate the offences already committed, petitioners were not charged for any offence either under EPF Act or MP Act. Hence, if any offence is committed under EPF Act or MP Act, quashing of the offences under Indian Penal Code will not affect such prosecution. In such circumstances, it is not in the interest of justice to continue the prosecution for the offences, taken cognizance, in C.C.No.80/2008. CRMC 3044/09 5 Petition is allowed. C.C.No.80/2008 on the file of Judicial First Class Magistrate's Court-II(Forest), Manjeri is quashed. It is made clear that quashing of the offences will not affect the prosecution, if any, for the offences under the EPF Act or MP Act. 28th October, 2009 (M.Sasidharan Nambiar, Judge) tkv