IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.MC.No. 951 of 2009(F) --------------------------------- CC.1624/2007 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER(S): ACCUSED NO.2: ---------------------------- SAJI BASHEER, AGED 38 YEARS, S/O.BASHEER, SULTHANA, T.C.NO.10/747 (1), MANNAMOOLA, PEROORKADA, THIRUVANANTHAPURAM. BY SRI.R.T.PRADEEP, ADVOCATE. RESPONDENT(S): COMPLAINANT & ACCUSED NO.1/STATE: ------------------------------------------------ 1. ENFORCEMENT OFFICER, EMPLOYEES' PROVIDENT FUND ORGANISATION PATTOM, TRIVANDRUM. 2. M/S.KERALA STATE AUDIO VISUAL AND REPROGRAPHIC CENTRE, PUNNAPURAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE & SMT.T.N.GIRIJA, ADVOCTE, SC FOR EPF ORGANISATION R2 BY SRI.B.S.KRISHNAN, SENIOR ADVOCATE, SC FOR KSAVRC. R3 BY SRI.AMJAD ALI, PUBLIC PROSECUTOR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/06/2009 ALONG WITH CRMC NO. 958 OF 2009 AND CONNECTED CASES, THE COURT IN THE SAME DAY PASSED THE FOLLOWING: dkr M.SASIDHARAN NAMBIAR, J. ============================= Crl.M.C. Nos.951, 958, 961, 973, 974, 975, 976, 977, 981, 982, 984 and 986 of 2009 ============================= Dated this the 2nd day of June, 2009. O R D E R Petitioner was working as the Managing Director of M/s Kerala State Audio Visual and Reprographic Centre for the period 2003-2004. Prosecution was taken for non- payment of Employees Provident Fund dues against the petitioner as 2nd accused in C.C.No.1624/2007, C.C.No.1626/2007, C.C.No.1627/2007, S.T.No.370/2005, C.C.No.1631/2007, C.C.1625/2007, S.T.No.369/2005, C.C.No.1628/2007, C.C.No.1630/2007, S.T.No.371/2005, S.T.No.372/2005 and C.C.No.1627/2007 for the failure to pay the employees provident fund dues for the respective periods. After the expiry of deputation period, petitioner is now working as Managing Director of Small Scale Industries Development Corporation. These Crl.M.Cs. are Crl.M.C. Nos.951, 958, 961, 973, 974, 975, 976, 977, 981, 982, 984 and 986 of 2009 -2- filed by the petitioner to quash criminal proceedings initiated against the petitioner contending that the entire arrears towards contribution to employees provident fund for the period petitioner was the Managing Director was paid and non-payment was not due any latches or willful negligence of the petitioner and was only due to administrative lapse and during his tenure Rs.1.75 Crores was deposited, which was the dues till then outstanding and in such circumstances the case as against petitioner is to be quashed. 2. Learned Counsel appearing for the petitioner and learned Counsel appearing for 1st respondent were heard. 3. Learned Counsel appearing for the petitioner submitted that petitioner was working as Managing Director of M/s Kerala State Audio Visual and Reprographic Centre for the period 2003-2004 and there was arrears in remitting the dues on account of the failure to deposit the provident fund dues in time and during the Crl.M.C. Nos.951, 958, 961, 973, 974, 975, 976, 977, 981, 982, 984 and 986 of 2009 -3- tenure of the petitioner Rs.1.75 Crores was deposited and subsequently the entire amount due for the period while the petitioner was working as Managing Director was also paid and in such circumstances the case as against the petitioner is to be quashed. 4. Learned Counsel pointed out there is absolutely no mens rea on the part of the petitioner to commit the offence as alleged and in such circumstances considering the fact that during the period while petitioner was working as Managing Director, Rs.1.75 Crores was deposited and subsequent dues was also cleared later, the crimes pending as against the petitioner is to be quashed. Learned Counsel also submitted that even though technically the offence which was committed cannot be quashed, considering the fact that there was no mens rea, petitioner had done what all can be done, during the period, to deposit the dues, a direction may be issued to Regional Provident Fund Commissioner to submit a request for withdrawal of Crl.M.C. Nos.951, 958, 961, 973, 974, 975, 976, 977, 981, 982, 984 and 986 of 2009 -4- prosecution or petitioner may be permitted to move the Central Provident Fund Commissioner for withdrawal of prosecution and to that extent a direction may be issued. 5. Learned Counsel appearing for the 1st respondent pointed out that once there was a failure to remit the dues to employees provident fund within the period as provided under the Act and the Rules, the offence is committed and subsequent payment is not a ground to quash the proceedings. Learned Counsel also pointed out that request for withdrawal of prosecution can be submitted by the Regional Provident Fund Commissioner only on satisfying the conditions provided in Circular No.E.II/38(5) 75/Vol.II dated 31-3-1983 and even now dues is outstanding from the institution and when the Regional Commissioner is not satisfied about the progress, a proposal to withdraw the prosecution cannot be submitted. 6. Petitioner was working as Managing Director on deputation only for the period 2003-2004. It is not disputed Crl.M.C. Nos.951, 958, 961, 973, 974, 975, 976, 977, 981, 982, 984 and 986 of 2009 -5- that there was arrears of employees provident fund due to failure to deposit the dues to the extent of more than Rs.1 Crore, when the petitioner took charge as Managing Director. It is also not disputed that during the period when petitioner was working as Managing Director, Rs.1.75 Crores was deposited towards the provident fund dues. True, it does not cover the entire provident fund contribution due as on that date. It is also true that when an offence is committed, subsequent payment of dues and penalty by itself will not absolve the criminal liability. 7. For the reason that subsequently provident fund dues outstanding for which prosecution proceedings are launched cannot be a ground to quash the proceedings. For a successful prosecution there be mens rea. If the petitioner had no mens rea and if the failure to deposit the provident fund dues was not either due to willful negligence or latches committed by the petitioner in his capacity as Managing Director, and instead on account of the financial Crl.M.C. Nos.951, 958, 961, 973, 974, 975, 976, 977, 981, 982, 984 and 986 of 2009 -6- incapacity of the institution, Central Provident Fund Commissioner may consider the question whether prosecutions launched against the petitioner is to be withdrawn or not. Petitioner is granted liberty to move the Central Provident Fund Commissioner for withdrawal of the prosecution stating all the relevant facts and if such a petition is filed, the Central Provident Fund Commissioner has to consider that application expeditiously. Petitions are disposed of accordingly. M.SASIDHARAN NAMBIAR JUDGE dkr