IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Crl.MC.No. 2018 of 2006() ------------------------- STC.1051/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... PETITIONERS: ACCUSED 1 TO 3: ------------------------------------ 1. M/S.AGREENCO FIBRE FOAM PVT.LTD., VALAPATTANAM, KANNUR REPRESENTED BY SHRI.BAIJU RADHAKRISHNAN, WHOLE TIME DIRECTOR. 2. SHRI.BAIJU RADHAKRISHNAN, WHOLE TIME DIRECTOR, M/S.AGREENCO FIBRE FOAM PVT.LTD., VALAPATTANAM, KANNUR. 3. SHRI.M.K.RAGHAVAN, CHAIRMAN, M/S.AGREENCO FIBRE PVT. LTD., VALAPATTANAM, KANNUR. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------- 1. ENFORCEMENT OFFICER, EMPLOYEES PROVIDENT FUNDS ORGANISATION, SUB REGIONAL OFFICE, KANNUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F. FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/12/2009 ALONG WITH CRL.M.C.NO..2173/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.3850/2006 IN CRL.M.C.NO.2018/2006 DISMISSED. 15/12/2009 SD/- A.K.BASHEER, JUDGE. A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.Nos. 2018 & 2173 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2009 ORDER Since the parties and the issue involved in these two cases are common, they are being disposed of by this common order. 2. Petitioners in these two cases, which have been filed under Section 482 of the Code of Criminal Procedure, are a private limited Company, its whole time Director and Chairman respectively. Petitioners are facing prosecution for commission of the offences punishable under sections 14(1A), 14(2) and 14A of the Employees' Provident Fund and Miscellaneous Provisions Act 1952. 3. The gravamen of the charge against the petitioners/accused is that they had failed to remit employees' and employer's share and also administrative charges payable under the Act, Pension Fund etc. The Enforcement Officer in the Sub Regional Office of the Organization at Kannur has filed the two complaints against the petitioners which are now pending on the file of the Judicial Magistrate of First Class, No.II, Kannur in ST.No. 1050/2006 and ST.No.1051/2006. Petitioners seek to quash the above proceedings pending against them by invoking the power under section 482 of the Code. 4. In Crl.M.C.No.2018/2006 which relates to S.T.No. 1051/2006, the allegation against the petitioners is that they failed Crl.M.Cs.2018 & 2173/2006. 2 to remit the contributions payable against the employees' and employer's share towards provident and pension funds, apart from administrative charges, for the months of August, September and October 2005. In Annexure AI complaint the amount which fell due because of the default committed by the petitioners is shown as Rs.2,18,626/-. 5. In Crl.M.C.No.2173/2006 petitioners are alleged to have committed default in remitting the contributions and administrative charges for the months of May, June and July 2005. The total amount payable by the petitioners as could be seen from Annexure AI complaint comes to Rs.1,85,892/- . 6. It is contended by learned counsel for the petitioners that the prosecution launched against them is totally unjust and unwarranted. While conceding that there was a short delay in making the remittances in the two cases, it is contended by the learned counsel that petitioners had remitted the entire amount with interest and other charges as demanded by the Organization immediately on receipt of the demand notices. It is pointed out by the learned counsel that the two complaints were in fact filed before the Court as is discernible from the Court seal, only on March 2, 2006. 7. In Crl.MC.2173/2006 which relates to ST.1050/06, the entire dues were in fact paid even before the complaint was filed. A perusal of Annexures A2 receipt issued by the Organization Crl.M.Cs.2018 & 2173/2006. 3 will show that on January 12, 2006 petitioners had paid a sum of Rs. 3 lakhs towards the dues payable for the months of February to May 2005. Annexure A3 will show that petitioners had remitted a sum of Rs.2 lakhs on February 15, 2006 towards the dues payable for the months of February to October, 2005. As mentioned earlier, the complaint was filed only on March 2, 2006. 8. Similarly in Crl.M.C.No.2018/2006 the total dues payable by the petitioners was shown to be Rs.2,18,862/- in Annexure AI complaint. Annexure A3 receipt issued by the Organization will show that petitioners had remitted a sum of Rs.2,65,532/- on July 3, 2006. Of course in this case the remittance is after filing of the complaint. In both cases the Organization has collected not only the dues but administrative charges also. The amounts collected in excess of what has been shown in the two complaints is presumably towards interest and other charges. 9. Learned counsel for the petitioners submits that the Organization had initiated proceedings under Section 14B to recover damages from the petitioners. The appeal preferred by the petitioners against the above proceedings is now pending before the Tribunal. 10. Learned counsel for the petitioners has invited my attention to a decision of their Lordships of the Supreme Court in Adoni Cotton Mills Ltd. & Ors. v. Regional Provident Fund Commissioner & Ors., (1995 Supp.) (4) SCC 580) in support of his Crl.M.Cs.2018 & 2173/2006. 4 contention that the prosecution launched against the petitioners is liable to be quashed, in view of the admitted position that the entire dues have been already remitted by the petitioners. 11. But in Adoni (supra), the notice issued by the Organization informing the appellants as to why prosecution should not be launched against them was questioned before the High Court. Prosecution was sought to be launched 15 years after the alleged commission of the offence. The total amounts due was in the region of Rs.90,000/-. The High Court dismissed the writ petition filed by the defaulters. But in appeal, the Supreme Court initially granted stay on condition that the defaulters remitted a sum of Rs.40,000/- and furnished bank guarantee for a sum of Rs.60,000/- The Court later quashed the proceedings against the appellants/defaulters keeping in view the long delay in launching the prosecution and also the fact that the amount payable by the defaulters had already been remitted. 12. It is trite that the defaulter under the Act and the Scheme is liable to be prosecuted once a default is committed. The mere fact that the entire dues have been paid subsequent to the launching of the prosecution may not come to the rescue of the defaulter. But still, the Court can always keep in view the attendant circumstances which led to the default and also the subsequent conduct of the defaulter. 13. As has been noticed already, in one of the two cases on Crl.M.Cs.2018 & 2173/2006. 5 hand viz., Crl.MC.2173/2006, the entire dues had been paid by the petitioners even before the complaint was filed before the Court. Petitioners had not only remitted the amounts shown in Annexure AI complaint; but much more than what was demanded by the Organization apparently towards the dues payable towards administrative charges, interest etc. 14. In Crl.MC 2018/2006 the position may be slightly different. Petitioners had remitted the dues shortly after the complaint was filed. 15. Having regard to the nature of the offences allegedly committed by the petitioners and also taking note of the fact that the entire dues had been already remitted by the petitioners, I am satisfied that the proceedings pending against the petitioners are liable to be quashed on condition that each of the petitioners pay a fine of Rs.3,000/- each in the two cases pending before the trial court. The fine amount shall be deposited before the trial court on or before January 31, 2010. 16. If the petitioners fail to remit the same , this order shall stand recalled. The amount of fine, if deposited, shall be released to the complainant in the two cases. Crl.M.Cs are disposed of in the above terms. A.K. Basheer Judge. an.