9911796707
TMI Blog2009 (10) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... e light of the evidence adduced whether on the facts and circumstances of this case prosecution is sustainable. - CRL. O.P. NOS. 10365, 11027 TO 11029, 10990, 13785, 11368 TO 11370 OF 2006 CRL. M.P. NOS. 2875 TO 2877, 2984, 3642, 2983, 2982, 2863 AND 2704 OF 2004 - - - Dated:- 29-10-2009 - MRS. ARUNA JAGADEESAN, J. C.S. Dhansekaran for the Petitioner. V. Vibhishanan for the Respondent. JUDGMENT Mrs. Aruna Jagadeesan, J. Since the petitioners, the respondent and the issue involved in all these criminal original petitions are one and the same, these criminal original petitions are disposed of by this common order. 2. The petitioners in all these criminal original petitions are facing trial for the alleged offences under sections 14(1A) and 14A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, in C.C. Nos. 133 to 138 of 1994 and S.T.C. Nos. 1987 to 1989 of 1994 on the file of the learned Judicial Magistrate II, Coimbatore. 3. The case of the prosecution is as follows : The petitioners are said to have failed to pay contributions towards the provident fund dues. The second petitioner is the managing director in charge of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the said order, an appeal in Appeal No. 188 of 2001 was preferred to the Appellate Authority for Industrial and Financial Construction, New Delhi and the said appeal was disposed of without affording an opportunity to the first petitioner. At present, the petitioners have challenged the orders of the BIFR as well as the AAFIR in W.P. No. 19907 of 2001 and the same is under adjudication by this court. 7. Mr. C.S. Dhanasekaran, learned counsel for the petitioners would submit that since the mill was restrained from disposing of its assets by the BIFR under section 22A of the Act, no payment could be made by the first petitioner mill towards the statutory dues and therefore, non payment was neither wilful nor wanton. He would further submit that in view of the challenge made by the petitioners in W. P. No. 19907 of 2001 before this court, no coercive proceedings or the criminal prosecution can be proceeded with against the petitioners, as no consent has been obtained by the respondent before initiation of criminal proceedings. Therefore, he would submit that the present complaint is not maintainable and was unsustainable. 8. Per contra, Mr. Vibhishanan, learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als with proceedings for recovery of money or for enforcement of any security or a guarantee in respect of any loans or advance granted to the company and a proceeding for winding up of the company. The section does not refer to any criminal proceeding." 9. The honourable Supreme Court has made it clear that section 22 of the Act does not create any legal impediment for instituting and proceeding with a criminal case. Though it relates to an offence under section 138 of the Negotiable Instruments Act, 1881, the principle laid down by the honourable Supreme Court applies to any criminal proceedings launched against the company for committing breach of the duty statutorily imposed upon it under the Act by not remitting its contribution to the employees' provident fund in terms of the prescription made in the Act and the scheme framed thereunder. Therefore, it cannot be said that the initiation of the prosecution against the petitioners is one without authority of law nor can it be said that the necessary condition precedent to launch the prosecution did not exist, when the prosecution was launched. 10. A careful reading of section 22 clearly shows that in cases of industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution for offences already committed by the company or its offices, it is difficult to extend the prohibition contained in section 22 to prosecutions validly launched against it. I have therefore no difficulty in repelling the first limb of the argument advanced on behalf of the petitioners." 13. However, as regards the submission made by learned counsel for the petitioners that section 22 of the Act affects a criminal case, as in the said section provision is made enabling the Board to make an order in writing to direct the sick industries not to dispose of, except with the consent of the board, which has been reiterated by this court in A. No. 1831 of 2001 dated November 2, 2001, it depends upon the facts and circumstances of the case and evidence has to be adduced to show for which period the restraint order became operative and whether it can be reasonably said that the non payment was beyond the control of the company. So it is a matter of evidence and hence, on the said ground, without any evidence to that effect, the criminal proceedings cannot be quashed at the threshold. 14. At this juncture, it is brought to the notice of this court that the entire provident fund ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
