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Calcutta High Court · body

1978 DIGILAW 92 (CAL)

Devi Dayal Sukhani v. D. N. Das, P. F. Inspector

1978-02-08

A.N.BANERJEE

body1978
Judgment These 34 Rules were obtained by the same accused petitioner in respect of 34 Criminal cases pending before the learned Metropolitan Magistrate, 12th Court, Calcutta. 2. On 21.2.76 the opposite party No. 1 who happens to be an Inspector appointed under S. 13 of the Employees' Provident Fund and Family Pension Fund Act, 1952 filed 34 complaints relating to the period from November, 1971 to August, 1974. Each complaint relates to one month each. It is alleged in the petition of complaint that the accused opposite party No. 1 is an establishment within the meaning of the Employees' Provident Fund and Family Pension Fund Act, 1952 and that the accused petitioner is the proprietor of it while the accused opposite party No.3 is the constituted Attorney of the said establishment. As per allegation in the petition of complaint they have during the relevant period failed to pay the contributions (Employees' as well as Employers' share) and the administrative charges and also to submit return as required under para 38(2) of the Employees' Provident Funds Scheme, 1952 and the Family Pension Scheme, 1971 and as such they have committed offences under S. 76(d) of the Employees' Provident Funds, Scheme, 1952 read with Ss. 14(1A), 14(2) and 14A(1) of the Employees' Provident Funds and Family Pension Fund Act, 1952. It was also alleged in each of the complaint that since the accused are persistent defaulters and were earlier convicted for similar breaches of the provisions of the Act and the Scheme they have committed offences punishable under S. 14AA or the Employees' Provident Fund and Family Pension Fund Act, 1952. The learned, Chief Metropolitan Magistrate, Calcutta, before whom such complaints were filed, noted the aforesaid offences as mentioned in the petition of complaint and after taking cognizance transferred all the cases to the Metropolitan Magistrate, 12th Court, Calcutta for favour of disposal. The accused persons appeared before the learned Magistrate and prayed for personal exemption. Thereafter he moved this court and obtained the present Rules. 3. Mr. Prosun Chandra Ghosh, learned Advocate appearing for the accused petitioners in all these Rules took three-fold objections to the continuance of the proceedings concerned before the learned Magistrate. The accused persons appeared before the learned Magistrate and prayed for personal exemption. Thereafter he moved this court and obtained the present Rules. 3. Mr. Prosun Chandra Ghosh, learned Advocate appearing for the accused petitioners in all these Rules took three-fold objections to the continuance of the proceedings concerned before the learned Magistrate. His first objection was that all the 34 complaints were mala fide and that those were deliberately filed at a later stage for the sale purpose of attracting provisions of S. 14AA of the Employees' Provident Fund and Family Pension Fund Act, 1952. His second objection was that S. 14AA would have no application and that in any event since S. 14AA was introduced in November, 1973 by the amending Act No. 40 of 1973 it would not be attracted at least to the defaults made prior to November, 1973. His third objection was that in any event all the complaints were barred by limitation under S. 468(2) of the Code of Criminal Procedure, 1973. 4. Mr. Biswaranjan Ghosal, learned Advocate appearing for the complainant opposite party submitted that S. 14AA related to enhanced punishment and that as such it would be premature to raise the question regarding the application of S. 14AA at this stage of the proceeding. It was also contended by Mr. Ghosal that since the offences were continuing offences and would remain to be so till the defaults were made up, S. 472 of the Code of Criminal Procedure, 1973 would be applicable and as such none of the complaints would be barred by limitation. Incidentally it may be pointed out that all the alleged dues were paid up on 6.2.76 that is to say about a month and a half before the thing of the present complaints. 5. Having heard the learned Advocates of the respective parties and on a consideration of the materials before me, I see much force in each of the grounds taken by Mr. Ghosh. It will appear that the firm concerned was in default for the period between March, 1971 and August, 1974. On 21.12.75, eight complaints were filed against the said Company and the present accused petitioner for defaulting 8 months and on their pleas they were convicted on 9.2.76 and 10.2.76 in those 8 cases. Ghosh. It will appear that the firm concerned was in default for the period between March, 1971 and August, 1974. On 21.12.75, eight complaints were filed against the said Company and the present accused petitioner for defaulting 8 months and on their pleas they were convicted on 9.2.76 and 10.2.76 in those 8 cases. It is, therefore, apparent that on 21.12.75 the accused petitioner and the firm concerned were defaulters to the knowledge of the complainant for the entire period between March, 1971 and August, 1974. Yet the complainant chose to the complaint in respect of 8 defaulting months only although all the present complaints could have been filed on the same date, that is to say on 21.12.75. No explanation has been given as to why the present complaints were not or could not be filed along with the aforesaid 8 complaints. Such non-explanation raises some doubt regarding the bona fires of the complaint and supports the contention of Mr. Ghosh that these complaints were deliberately not filed in order to attract the provisions of S. 14AA of the Employees' Provident Fund and Family Pension Fund Act, 1952. Be that as it may the question is whether S. 14AA of the aforesaid Act is applicable in the present cases and whether the applicability of such section can be considered at this stage of the proceeding. It has already been pointed out that in all the petitions of complaint S. 14AA of the aforesaid Act has been mentioned and we may presume that cognizance of the offence under S. 14AA has also been taken by the learned Magistrate. That being so, it is open to the accused petitioner to raise the question of applicability of the aforesaid section at this stage of the proceeding. 6. That being so, it is open to the accused petitioner to raise the question of applicability of the aforesaid section at this stage of the proceeding. 6. A reading of S. 14AA of the Act would indicate that "whoever, having been convicted by a court of any offence punishable under the Act, the Scheme or the Family Pension Scheme, commits the same offence shall be subject for every such subsequent offence to imprisonment for a term which may extend to one year but which shall not be less than three months and shall also be liable to a tine which may extend to Rs.4000/-." In my view the language of that section is clear that S. 14AA would be attracted only when an offence of the similar nature is committed by a person who has been convicted by a court of such offence punishable under the Act. In the present cases it has already been pointed out that when the earlier group of 8 complaints was filed, it was known to the complainant that the firm concerned and the accused petitioner had also committed default for subsequent months for which subsequently those 34 complaints were filed. Accordingly, the accused persons had already committed the offences, for which they are being tried now, at the time the earlier complaints were filed and also at the time the accused persons were convicted in the earlier cases. That being so, it cannot be said that the accused persons having been convicted by a court of any offence punishable under the aforesaid Act, the Scheme or the Family Pension Scheme had committed the same offence. Such commission of the same offence must, in my view, relate to a period subse4uent to the date of conviction in the earlier case. If at the time of the filing of the earlier case and also on the date of the conviction in the earlier case the accused had already committed an offence of the similar nature and it was known to the complainant, it cannot be said that he has committed the same offence after being convicted by a court of the offence punishable under the Act, the Scheme or the Family Pension Scheme. Section 14AA will have no application in the present cases. Section 14AA will have no application in the present cases. Even if, it is made applicable, I do not think it will have any application with regard to those cases which relate to the period prior to November, 1973. Section 14AA was inserted by the amending Act 40 of 1973 with effect from November, 1973. It has no retrospective effect and it cannot, therefore, relate to a period prior to November, 1973. 7. We may now came to the question of limitation. In my view an offence under the Employees' Provident Fund and Family Pension Fund Act, 1952, the Scheme or the Family Pension Scheme is a completed offence and cannot be said to be a continuing offence as contemplated in S. 472 of the Code of Criminal Procedure. As soon as an accused commits a default for a particular month he commits an offence under the Act and as such makes himself liable to prosecution for commission of such an offence. His subsequent payment of the dues for that month does not purge him of the offence already committed nor it can be said that he continues to be an offender till the dues are paid by him. In that view of the matter S. 472 of the, Code of Criminal Procedure, 1973 will have no application in the present cases. Section 468 sub-s. (2) cl. (b) of the code will be applicable and the period of limitation is one year from the date of the commission of the offence. That being so, all the present complaints were barred by limitation under S. 468(1) clause (b) of the Code of Criminal Procedure, 1973. The argument of Mr. Ghosal that the Magistrate has power to condone such delay at a later stage in accordance with the provisions of S. 473 of the Code has no force. Section 468 of the Code relates to bar to taking cognizance after lapse of the period of limitation. A Magistrate has no power or jurisdiction to take cognizance of an offence which is time barred under S. 468 of the Code. That being the position there is no scope for condonation of the delay after taking cognizance of the offence. Such delay has to be condoned in accordance with the provisions of the Code of Criminal Procedure, 1973 prior to the taking of the cognizance of offence. That being the position there is no scope for condonation of the delay after taking cognizance of the offence. Such delay has to be condoned in accordance with the provisions of the Code of Criminal Procedure, 1973 prior to the taking of the cognizance of offence. That has not been done in the present cases and as such I feel no hesitation in holding that the learned Chief Metropolitan Magistrate acted illegally or without jurisdiction in taking cognizance of the offences alleged in the present cases. In all such circumstances the continuance of the present proceedings would be an abuse of the process of the court and as such must be quashed. 8. In the result, the Rules are made concerned pending before the learned hereby quashed absolute. All the proceedings Metropolitan Magistrate are hereby quashed. 9. Let the affidavits filed by the complainant opposite party be kept with the respective records. Rule discharged.