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2010 DIGILAW 1911 (MAD)

A. K. Saxena v. A. Selvarathinam

2010-04-21

C.T.SELVAM

body2010
Judgment :- 1. The petitioner, who is the 4th accused in C.C.No.2773 of 1993 pending on the file of learned XVIII Metropolitan Magistrate, Saidapet, Chennai faces prosecution for offences under Sections 406 and 420 r/w 120(b) IPC. 2. This Court, while disposing of Crl.O.P.No.4334 of 2004 under order dated 11.12.2006 has spelt out the facts of the case as follows: "2. A private complaint has been filed by the complainant, wherein it is alleged that he was working as a tailor with the first accused. The first accused is the proprietor of Nafeez Garments .Ten percent of the salary was deducted by the first accused from the year 1984 onwards towards Employees Provident Fund. The complainant was repeatedly asking for furnishing the provident fund accounts, which the first accused failed. On enquiry, the complainant came to know that Rs.9,000/- has been misappropriated by the first accused. The first accused was having working agreement with the second accused, namely Handicrafts and Handlooms Export Corporation of India Limited (in short HHEC), a Government of India undertaking. The second accused company gave working orders to the first accused for stitching the garments and subsequently, it is exported. Notice was issued to A-1 to A-4 for which communication has been received by the complainant from A-1. In such circumstances, the allegations and averments made in the private complaint is that all the accused have committed an offence." 3. Under the order referred to above, this Court inter alia has held that "7. It is the specific case of the complainant that he was working only with the first accused firm and 10% salary towards Provident Fund was deducted only by the first accused. The nexus of the first accused with the second accused or the HHEC is not even mentioned. In a writ petition filed by the first accused in W.P.No.2428 of 1986 it has been positively held that the first accused is a different entity and it is nothing to do with the second accused, namely HHEC .On a perusal of the communication dated 25.11.2002 from the Employees Provident Organisation, Sub Accounts Office, the details of the payment made in the account of the complainant has been mentioned. Though it has been belatedly made it is for the first accused to explain, prima facie it appears that the amount has been deposited by the first accused at a later point of time. Though it has been belatedly made it is for the first accused to explain, prima facie it appears that the amount has been deposited by the first accused at a later point of time. On a perusal of this communication it appears that the first accused alone is the employer. In such circumstances, I do not find any merit to connect the petitioner with the crime on the basis of the allegation made in the private complaint. Therefore, the proceedings pending against the petitioner alone is quashed and with regard to the other accused the learned Magistrate may proceed with the case in accordance with law." 4. The findings of this Court herein above extracted would apply with equal force also as regards the petitioner herein. There is one additional reason why this quash petition ought to be allowed. The learned counsel for the respondent has filed a typed set and made particular reference to letters dated 11.07.1992 and 19.09.1992 of the 2nd accused Corporation viz., M/s.Handicrafts and Handlooms Exports Corporation of India Ltd. 5. Though, the learned counsel would read the communications dated 11.07.1992 as proof of entrustment, it is seen that contrary to allegation of breach of trust levelled against the employees of such corporation, the communication informs that such corporation would intimate the employer i.e., the 1st accused about the allotment of code number by 15th September 1992. In the event of its failure in its efforts, it would entertain applications for loan which would be processed and cleared as per CPF rules applicable to the concerned applicant. 6. By subsequent communication dated 19.09.1992, the code number allotted by the Regional Provident Fund Commissioner to the proprietory concern of the 1st accused has been intimated. A letter dated 25.11.2002 of the Employees Provident Fund Organisation, Sub-Accounts Office to M/s.Handicrafts and Handlooms Exports Corporation of India Ltd. informs that the deposit of EPF contribution in favour of the respondent/complainant is available in a total sum of Rs.22,534/-therein. Communications of M/s. Handicrafts and Handlooms Exports Corporation of India Ltd., rather than reflect any immorality, would show a most evenhanded conduct and a total commitment and responsibility for the funds that have come into its hands. Communications of M/s. Handicrafts and Handlooms Exports Corporation of India Ltd., rather than reflect any immorality, would show a most evenhanded conduct and a total commitment and responsibility for the funds that have come into its hands. That such funds ought not to have come into its hands as the 1st accused is the principal and independent employer of the respondent/complainant and ought to have made his own arrangements towards effecting deposit of EPF contribution is a different matter. 7. For the above reasons, the Criminal Original Petition is allowed. The proceedings in C.C.No.2773 of 1993 on the file of learned XVIII Metropolitan Magistrate, Saidapet, Chennai shall stand quashed in so far as this petitioner is concerned. Consequently, the connected miscellaneous petition is closed.