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TMI Blog1997 (8) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... r para-38 of the Employees Provident Fund Scheme, 1952, read with Section 14(1A) of Section 14-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 or under para 8 of the Employees Deposit Linked Insurance Scheme, 1976 read with Sections 6-C, 14(1B) and 14-A of Employees Provident Fund Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act). The relevant allegations in the complaint are found extracted in the present petitions themselves and are as follows:- 3. M/s Indra Motors (P) Limited, Kurali is an establishment within the meaning of the Act. The Employees Provident Fund Scheme, 1952; and the Employees Family Pension Scheme, 1971, framed under the said Act are applicable to the said establishment. It has been allotted Code No. PN/1424. It is situated at Kurali. The first accused is the person incharge of the establishment and is responsible for the conduct of its business and is required to comply with the provisions of the said Act and the Schemes. Under paras 30 and 38 of the Employees Provident Fund Scheme, 1952, the accused are required to pay employee's and employer's share of the contribution to the Employees Provident Fund and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was also filed for non-payment of the amounts for the same months mentioned in the present complaint. The amounts and the due dates are also the same. The learned counsel for the petitioners contends that the previous complaint is word for word the same, as the present complaint, which is not disputed by the learned counsel for the respondent. The previous complaint was dismissed by the Additional C.J.M., Ropar on 13.12.1994 as withdrawn after recording a separate statement. The petitioners have extracted this statement in the petition which is as follows:- The accused firm has shifted to Calcutta so do not want to proceed with the complaint. 9. But the learned counsel for the petitioners contends that even now, the very same address as found in the previous complaint, has been given in the present complaint also. 10. The learned counsel for the petitioners contends that as per Section 257 of the Criminal Procedure Code, if a complainant, at any time, before the final order is passed, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw the complaint against the accused, the Magistrate may permit him to withdraw the same and shall thereupon ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant, the Magistrate has to permit him to withdraw the same and shall thereupon acquit the accused in view of Section 257 of the Criminal Procedure Code He, therefore, contends that even though the learned Additional C.J.M. has not mentioned that he was acquitting the petitioners herein, he should be taken to have done so in view of the provisions of Section 257. 13. The learned counsel for the petitioners also relied upon the decision of the Gujarat High Court in K.H. Dhamji v. Vichai Ratnabash, 1983 All India Criminal Law Reporter 315, wherein it was held as follows:- When the Magistrate finds that the complainant is absent on the appointed day for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned, the Magistrate has only two alternatives with him. He is required to acquit the accused or to adjourn the matter. There is no provision for dismissing the complaint and if such an order is erroneously passed, the order would have its legal effect as contemplated under Section 256(1) of the Criminal Procedure Code. The Criminal Procedure Code has specifically provided the cases where the complaint is required to be dismissed or when the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint, he shall acquit the accused against whom the complaint is so withdrawn. So even if in the final order of the learned Magistrate, it is not mentioned that the accused is/are acquitted, but the complaint is simply dismissed as withdrawn, we have to take the order to its legal consequence, i.e. we have to consider that the accused have been acquitted. Once the accused is acquitted, no fresh complaint is competent on the basis of the same facts and cause of action in view of the provisions contained in Section 300 Criminal Procedure Code as well as the provisions contained in clause (2) of the Article 20 of the Constitution of India. Therefore, the contention of the learned counsel for the respondent that the complaint has been merely dismissed as withdrawn and that the accused have not been acquitted, will be of no avail. 17. Another contention put forward by the learned counsel for the respondent is that the order summoning the petitioners herein to appear before the trial Court was only an interim order against which the petition under Section 482 Criminal Procedure Code is not maintainable. In this connection, the learned counsel for the respondent relied upon a decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; however, this power should be sparingly used in rarest of rare cases where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act, to the institution and the continuance of the proceedings. 19. Although the present case emanated from a complaint to the Court, still, this principle will apply with equal force to such a case also. Therefore, I am of the view that when there is a legal bar to the second complaint, it is not necessary to direct the petitioners to appear before the trial Court and put forth their case. When the second complaint is obviously barred, allowing the complainant to prosecute the same further will be an abuse of process of Court and to prevent that, this Court can certainly interfere in proceedings under Section 482 Criminal Procedure Code. 20. The decision of the Hon'ble Supreme Court in K.M. Mathew's case cited above relates to a case where the petitioner before the Hon'ble Supreme Court contended before the trial Court itself that the allegations in the complaint did not disclose any ground for proceeding against him and it was on that ground alone, that he had requested the trial Court also to drop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Lal and others, AIR 1992 Supreme Court 1379 etc., held that the High court, in exercise of its inherent jurisdiction can quash the criminal proceeding when the complaint does not constitute an offence and also to prevent the abuse of process of Court or to secure the ends of justice. This Court also referred to the decision of the Hon'ble Supreme Court in K.M. Mathew's case (supra) and distinguished it on the ground that the Hon'ble Supreme Court was concerned in that case with the question as to whether the Magistrate, after recording the preliminary evidence and summoning the accused, can recall or vary the order or not and was not concerned with the inherent powers of the High Court. This Court held that the inherent powers of the High Court as referred to above, would remain, which have been explained in the case of Janta Dal v. H.S. Chaudhary and State of Haryana and others v. Ch. Bhajan Lal and others (supra). This Court further held that the principle remains the same and it has to be considered if the complaint discloses any offence against the petitioner or not. 24. In the circumstances of the present case on hand, I am also of the view that the contention th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intainable on the ground that the same amount due for the same period remained unpaid even after the previous conviction also, on the basis of the contention that the offence continues ? If the answer is in the affirmative, then that will mean that the complainant can go on filing one complaint after another for the same amount. In my view this cannot be done. Because the omission of the accused to pay the amount in these circumstances can be only a single omission for which there could be only one complaint/prosecution. Otherwise, if every day's default is treated as giving rise to a fresh cause of action and fresh complaint is entertained, then it will amount to harassing the accused and an abuse of process of Court, which cannot be permitted at all. Therefore, I am of the view that the decision of the Hon'ble Supreme Court has no application to the facts of the case since in that case of Hon'ble Supreme Court was concerned with the question of limitation only. 26. Therefore, I am of the view that in the circumstances of the case, the second complaint is not maintainable. Consequently, all these petitions deserve to be allowed. Accordingly, all these petitions are all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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