IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA MONDAY, THE 14TH DAY OF SEPTEMBER 2009/23RD ASHADA, 1931 Crl.MC.No. 1628 of 2007 ( ) --------------------------- CC.5/2006 of C.J.M.,THRISSUR PETITIONER(S): ------------- P.M.MANUEL, MANAGING PARTNER, MANUELSONS WOOD INDUSTRIES, POONKUNNAM P.O. THRISSUR. BY ADV. SRI.SHOBY K.FRANCIS COMPLAINANT(S): --------------- 1. STATE OF KERALA, (SI OF POLICE THRISSUR TOWN WEST POLICE STATION), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ENFORCEMENT OFFICER - P.F.INSPECTOR, EMPLOYEES PROVIDENT FUND ORGANISATION DISTRICT OFFICE, THRISSUR-1. BY ADV. SRI.S.GOPAKUMARAN NAIR, SC, P.F. BY ADV. PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-09-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------------------------ Crl.M.C.No. 1628 of 2007 ------------------------------------------------------------- Dated this the 14th day of September, 2009. ORDER This is a petition filed for quashing Annexure-D charge sheet and further criminal proceedings initiated against petitioner before Chief Judicial Magistrate Court. 2. Petitioner is the Managing Partner, Manuelsons Wood Industries which is an establishment covered under the Employees' Provident Fund and Miscellaneous provisions Act. As the employer, provident fund contribution used to be deducted from the wages of the employees working in the establishment for a period from 01/2005 to 11/2005. But after deducting the said amount the employer failed to remit the same to the 2nd respondent complainant as per law. Thereby, the contribution deducted from the wages of the employees which was entrusted to the employer for remitting to the 2nd respondent was credited through individual accounts was not credited to the account and thereby the employer committed criminal breach of trust. [Crl.M.C. 1628 of 2007] 2 3. Learned counsel for petitioner argued that petitioner remitted the employees' share of provident fund contribution for the relevant period 12/2000 to 8/2005. This fact was acknowledged by the Enforcement Officer and the matter was informed accordingly as per letter dated 22.12.2005 and a copy of the said letter is Annexure-C. The amount having been paid, proceedings initiated against petitioner may be quashed, it is submitted. It is also pointed out that, as per the statement filed on behalf of second respondent in paragraphs 6 and 7, the complaint can be withdrawn if the amount is paid. In such circumstances, petitioner prays or quashing the charge sheet. 4. Heard both sides. Learned counsel for second respondent argued that what is stated in paragraphs 6 and 7 are the proceedings for withdrawing a complaint. It has also reference to the contentions for withdrawing the complaint. According to him, even though petitioner has remitted the employees' share of contribution involved within a short period from the date of filing of F.I.R. the matter cannot be referred or recommended to the Central Provident Fund Commissioner for withdrawal of the case, since there was subsequent defaults. The complaint filed by the second respondent cannot be withdrawn without proper [Crl.M.C. 1628 of 2007] 3 approval of Central Provident Fund Commissioner. 5. As per the existing instructions from Central Provident Fund Commissioner, New Delhi if the outstanding dues are paid within 15 days to one month from the date of filing of the F.I.R. and if there is subsequent complaint, such cases can be forwarded to the E.P.F.O. Head Office for withdrawing of the case and on receipt of the approval, the prosecution can be withdrawn. In this case, the petitioner is a chronic defaulter and the subsequent compliance position of the establishment is not at all satisfactory. Rs.41,013/- is still outstanding towards EPF dues payable for the period 05/2008 to 12/2008 (petitioner's counsel submits that the said amount is also subsequently paid). 6. It is submitted by learned counsel for respondent that even if the employer remits dues towards employees provident fund after the default, the proceedings initiated against employer can be quashed under Section 482 Cr.P.C. The employer is expected to deduct EPF contribution from the employees for the period within a particular period and remit the same in accordance with law. Petitioner deducted the amount but did not pay the amount as per law and there is criminal breach of trust. The subsequent payment of the amount will not wash away by [Crl.M.C. 1628 of 2007] 4 itself, the ingredients of offence under Section 408 IPC, it is submitted. 7. However, as pointed out by learned counsel for 2nd respondent, if certain conditions are satisfied, the prosecution can be withdrawn but in this case, even such conditions are not satisfied. I In the above circumstances, on hearing both sides, I do not find any ground to quash the charge. Petitioner ought to have taken steps for making subsequent payments so that the approval from the Central Provident Fund Commissioner or sanction could have been obtained for withdrawing prosecution at the appropriate stage. It appears that it was not done. This petition is dismissed. Sd/- K. HEMA, JUDGE. krs.