Judgment · High Court · 2007
Case at a glance
Provisions considered
- Code of Criminal Procedure, 1973 ss. 468, 468(1)(c), 482
Key paragraphs
- Para 66. Countering the said submissions the learned counsel for therespondent in each of the petitions submitted that the offence under Sections 14 (1A) and 14 A are continuing offences and as such theperiod of limitation prescribed under Section 468 (1) (c) of the Criminal Procedure…
- Para 88. The above criminal original petitions are devoid of meritsand the same are liable to be dismissed and accordingly dismissed. Consequently connected MPs are closed. SrkSd/-Asst. Registrar./true copy/Sub Asst. Registrar. ToThe Judicial Magistrate No.II, Udumalpet1 cc to Mr.Vibhishanan, Advocate, SR.695881 cc to Mr.K.Kalyanasundaram, Advocate, SR.69324ASM…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.11.2007CORAM:THE HONOURABLE MR.JUSTICE K. MOHAN RAMCriminal Original Petition Nos.29385, 30000, 30001, 30002, 30003 and 29180 of 2007 and Miscellaneous Petitions Nos.1, 1, 1, 1, 1 and 1 of 20071. M/s. Kongarar Spinners Ltd., Rep. by its Managing Director Mr. R.Balasubramaniyam, Pethappampatti Post, Udumalpet - 642 2052. Mr. R.Balasubramaniyam Managing Director, M/s. Kongarar Spinners Ltd., Pethappampatti Post, Udumalpet - 642 205.. Petitioners in all Crl.O.Ps./Accused-Vs.-Mr. S.SankaralingamEnforcement Officer, Employees Provident Funds, No.80 Venkatramanan StreetPollachi - 642 001.. Respondent in all Crl.O.Ps./ComplainantCriminal Original Petitions filed under Section 482 of the Codeof Criminal Procedure to call for the records relating to C.C.No.234of 2006 (Crl.OP.29385/2007) C.C.Nos.237 of 2006 (Crl.OP.30000/2007),C.C.No.240 of 2006 (Crl.OP.30001 of 2007), C.C.No.238/2006(Crl.OP.30002 of 2007, C.C.No.239 of 2006 (Crl.OP.30003 of 2007) andC.C.No.233 of 2006 (Crl.OP.29180 of 2007) on the file of the Judicial Magistrate No.II, Udumalpet and quash the same. For Petitioners :Mrs. P.Indumathi. For Respondent : Mr. V.Vibhishan, for E.P.F.,- - -C O M M O N
O R D E RThe petitioners are the accused facing trial in C.C.Nos.234,237, 240, 238, 239 and 233 of 2006, respectively, pending on thefile of the Judicial Magistrate No.II, Udumalpet and they have filed https://hcservices.ecourts.gov.in/hcservices/ the above petitions seeking to quash the above said criminalproceedings.
The brief facts that are necessary for the disposal of theabove criminal original petitions are set-out below:-Under Sections 6 and 6-A read with paragraphs 30 and 38 of the Employees' Provident Funds Miscellaneous Provisions Act, 1952 and Employees' Provident Funds Scheme the accused are required to paythe employer's contributions to the Employees' Pension Fund inrespect of the employees of the said establishment within fifteendays of the close of every month.
It is the case of the respondent in each of the petitionsthat inspite of several requests the accused failed to pay the Employees Pension Fund Contributions for the following periodsbefore the due date:-Month & YearEmployer's Sharetowards Employees'Pension FundDue date for payment12/200018804615/01/200101/200119336415/02/200102/200116727415/03/2001Total548684Month & YearEmployer's Sharetowards Employees'Pension FundDue date for payment09/200117750015/10/200110/200117843915/11/200111/200116978815/12/2001Total525727Month & YearEmployer's Sharetowards Employees'Pension FundDue date for payment06/200217253415/07/200207/200217909815/08/200208/200218046815/09/2002Total532100 https://hcservices.ecourts.gov.in/hcservices/ Month & YearEmployer's Sharetowards Employees'Pension FundDue date for payment12/200118562815/01/200201/200218625215/02/200202/200217354915/03/2002Total545429Month & YearEmployer's Sharetowards Employees'Pension FundDue date for payment03/200218225015/04/200204/200217841415/05/200205/200217703615/06/2002Total537700Month & YearEmployer's Sharetowards Employees'Pension FundDue date for payment09/200016297815/10/200010/200017969715/11/200011/200017188715/12/2000Total514562respectively. Under the above said circumstances since theaccused / petitioners herein have committed offences under Sections14 (1A) and 14 A of the Employees' Provident Funds and MiscellaneousProvisions Act 1952, the respondent has filed a complaint before the Court of Judicial Magistrate No.II, Udumalpet, on 13.09.2005 and thesame has been taken cognizance and process have been issued to thepetitioners. Challenging the validity of the said prosecutionlaunched against the petitioners the petitioners have come beforethis Court by invoking the provisions contained in Section 482 ofthe Criminal Procedure Code to quash the said proceedings on theonly ground that the complaint filed by the respondent is barred bylimitation as per the provisions contained in Section 468 of the Criminal Procedure Code.
Heard the learned counsel on either side. https://hcservices.ecourts.gov.in/hcservices/
Learned counsel for the petitioners in each of the petitionsby referring to Section 468 (1) (c) of the Criminal Procedure Codesubmitted that since the maximum punishment that could be imposedfor the offence committed under Sections 14 (1 A) and 14 A of the Employees' Provident Fund Act is only three years, the complaintought to have been filed within a period of three years, butadmittedly the complaint has been filed beyond the period of threeyears and hence the criminal original petitions are liable to bequashed. In support of the above said contention the learnedcounsel for the petitioners relied upon a decision of a learnedsingle Judge of this Court reported in 1997 (I) CTC 388 (S.G.Gopiahv. State) and submitted that it was a case where the offencecommitted was under Sections 21 and 36(E) of the Tamil Nadu ForestAct 1882 read with Rules 3 and 7 of the Tamil nadu SandalwoodPossession Rules, 1970 and since the complaint filed was beyond theperiod of limitation prescribed the criminal case was quashed. Inthe said decision in paragraph 3 it is observed as follows:-"3. The Government Advocate concedes that in this casethe cognizance has been taken only after the period oflimitation. Under section 468 Cr.P.C., for the offencespunishable up to three years, the charge-sheet orcomplaint has got to be filed within three years. Beyond the said period of limitation the Court will notbe empowered to take cognizance of the case since thereis a bar provided under the said section. Therefore, inview of legal infirmity in the matter of takingcognizance, I feel that the order passed by the lowercourt is not sustainable in law, and therefore it isliable to be set aside. "Relying upon the above said decision the learned counsel for thepetitioner in each of the petitions submitted that all the criminalcases pending against the petitioners are liable to be quashed. Except the above said submissions no other submissions have beenmade by the learned counsel for the petitioner.
Countering the said submissions the learned counsel for therespondent in each of the petitions submitted that the offence under Sections 14 (1A) and 14 A are continuing offences and as such theperiod of limitation prescribed under Section 468 (1) (c) of the Criminal Procedure Code is not applicable to these cases. Learnedcounsel further submitted that the decision reported in 1997 (I) CTC388 (referred to supra) is not applicable to the facts of this case. To substantiate the same the learned counsel for the respondentrelied upon the following decisions:- https://hcservices.ecourts.gov.in/hcservices/ (i) 1980 L.W. (Crl) 226 (DB) (Premier Studs & Chaplets Co., Inre: (D.B. - Order of Reference, Maheswaran, J.), wherein inparagraph 20 of the said decision it is laid down as follows:-"20. The statute creates a duty on the part of theemployers to pay a contribution as laid down by Ss. 6and 6 A of the Act and paragraph 76 (a) of the Schemepenalises the failure to pay such contribution andparagraph 76 (b) penalises the deduction or attemptingto deduct from the wages or other remuneration of amember the whole or any part of the employer'scontribution and paragraph 76 (c) penalises the failureor refusal to submit any return, statement or otherdocument required under the Scheme.
The failure to payany such contribution or to submit any return orstatement continues from day to day; a fresh offenceis committed by the accused so long as he continues inhis failure to pay the contribution or to submit thereturn or statement. It is not mere failure to obey anorder or to comply with a direction. It is not as ifonce he fails to pay the contribution or to submit thereturn on the due date, the employer is relieved of hisduty and there is nothing more to be done. The duty topay the contribution or to submit the return stillremains and continues till the contributions are madeor the returns submitted. Therefore, a failure to paythe contribution or to submit the return is acontinuing breach of a duty which continues till it isperformed and the non-performance of such a duty fromday to day is a continuing wrong. We are unable toagree with Natarajan, J's observation that since thecontributions and charges have to be paid under the Actor the Schemes on the 15th of the month next after theone for which the contributions or charges were due theoffences become completed as soon as the contributionsor charges were not remitted within the stipulatedtime.
A failure to pay the contributions or to submitthe returns is an offence which is susceptible ofcontinuance and is certainly distinguishable from theone which is committed once and for all and it is aliability which continues until the contribution ismade or the return submitted and as such the offencecomplained of against the revision petitioners in ouropinion, comes clearly within the definition of acontinuing offence as contained in the decision of the Supreme Court in State of Bihar v. Deokaran Menshi(1973) L.W. Crl. 129. In the aforesaid case the Supreme Court was dealing with Ss. 66 and 79 of the https://hcservices.ecourts.gov.in/hcservices/ Mines Act and the Indian Metaliferous Regulations,(1926) Reg. 3 and the Supreme Court held that theinfringesment in that case occurred on January 21 ofthe relevant year under Regulation 3 read with S.66 andis complete on the owner failing to furnish the annualreturns by that day.
The Supreme Court further noticedthat the regulation did not lay down that the owner, manager, etc., of the mine con-lerned would be guiltyof an offence if he continues to carry on the minewithout furnishing the returns or that the offencecontinued until the requirement of Reg.3 was compliedwith or, in other words, Reg.3 does not render acontinued disobedience or non-compliance of it anoffence. It might be noted that the Supreme Court hasin the aforesaid decision referred with approval to thedecision in State v. Bhiwandiwalla (I.L.R. 1955 Bom.192 = A.I.R. 1965 Bom. 161). Therefore, in our view, the offences complained of, against the revisionpetitioners are continuing offences and as such underS. 472, Crl.P.C. a fresh period of limitation wouldbegin to run at every moment of the time during whichthe offence continues".(ii) AIR 1984 Supreme Court 1688 (Bhagirath Kanoria v. State ofM.P.) wherein the Apex Court in paragraph 21 has laid down asfollows:-"21.
For these reasons, we are of the opinion that theoffence of which the appellants are charged, namely, non-payment of the employer's contribution to the ProvidentFund before the due date, is a continuing offence and, therefore, the period of limitation prescribed by Section468 of the Code cannot have any application. The offencewhich is alleged against the appellants will be governedby Section 472 of the Code, according to which, a freshperiod of limitation begins to run at every moment of thetime during which the offence continues".
I have carefully considered the above said submissions madeby the learned counsel on either side. The contention of thelearned counsel for the petitioner that since the maximum punishmentthat could be imposed for the offence committed under Sections 14 (1A) and 14 A of the Employees' Provident Fund Act is only threeyears, the complaints ought to have been filed within a period ofthree years as provided for under Section 468 (1) (c) of the Criminal Procedure Code and whereas admittedly the complaints have https://hcservices.ecourts.gov.in/hcservices/ been filed beyond the period of three years and as such thecomplaints are liable to be quashed has to be rejected in the lightof the law laid down by a Division Bench of this Court in 1980 L.W.Crl. 226 (referred to supra) and the law laid down by the ApexCourt in the decision reported in AIR 1984 Supreme Court 1688(referred to supra). Since as per the above said two decisions theoffences, for which the petitioners are facing criminal trial, arecontinuing offences the period of limitation prescribed under Section 468 (1) (c) of the Criminal Procedure Code will not apply tothese cases. The law laid down by the Apex Court squarely appliesto the facts of these case.
The above criminal original petitions are devoid of meritsand the same are liable to be dismissed and accordingly dismissed. Consequently connected MPs are closed. SrkSd/-Asst. Registrar./true copy/Sub Asst. Registrar. ToThe Judicial Magistrate No.II, Udumalpet1 cc to Mr.Vibhishanan, Advocate, SR.695881 cc to Mr.K.Kalyanasundaram, Advocate, SR.69324ASM (CO)dv/7.12.Criminal Original Petition Nos.29385, 30000,30001, 30002, 30003 and 29180 of 2007and Miscellaneous Petitions Nos.1, 1, 1, 1,1 and 1 of 2007
Questions this judgment answers
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — ss. 468, 468(1)(c), 482.
Which court decided this case, and when?
Madras High Court, on 21 Nov 2007. The bench was K MOHAN RAMCRIMINAL ORIGINAL.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.