Kerala High Court · 2009

P.Q. BARKATH ALI, J.------------------------------------------------------CRL. R.P. 208 of 2004 ------------------------------------------------------Dated: DECEMBER 22, 2009 ORDERThe revision petitioners are accused Nos.1 to 4 in S.T.CaseNo.711/1996 of Judicial First Class Magistrate Court, Peerumedu.They, along with accused No.8, are convicted under sec.14(2A) readwith sec.6A(2) of the Employees Provident Funds and MiscellaneousProvisions Act, 1952 (for short, the EPF Act) read with paragraphs 9and 10 of Employees Family Pension Scheme, 1971. They, along withaccused No.8, were sentenced to undergo rigorous imprisonment forthree months and to pay a fine of Rs.5000/- each under sec.14(2A) ofthe EPF Act, in default to undergo simple imprisonment for one month.Proceedings against accused Nos.5 to 7 were dropped by the trialcourt as per order in CMP 347/1999 dated 27.2.1999. On appealby accused Nos.1 to 4 as Crl.A.69/2001 of Addl.District and SessionsCourt, Thodupuzha, the lower appellate court altered the charge intosec.41(d) of Family Pension Scheme and confirmed the substantivesentence, but reduced the fine to Rs.4000/-. The appeal by the 8thaccused as Crl.A.57/2001 was allowed by the lower appellate courtand he was found not guilty and acquitted of all the charges levelledagainst him. Accused Nos.1 to 4 have now come up in revisionchallenging their conviction and sentence. Crl.R.P.208/04 22. The 1st accused/1st revision petitioner is a limited companyhaving 9 estates in Idukki District and engaged in agriculturalactivities. The 2nd accused is the Chairman and accused Nos.3 to 7are the Directors of the company. The 8th accused is the Manager ofthe estates. The 1st respondent, the Enforcement Officer, EmployeesProvident Fund in Idukki District filed the complaint before the trialcourt alleging that the accused persons, in violation of the mandatoryprovisions of the EPF Scheme of 1971 failed to remit the FamilyPension Fund contribution of the company's employees together withthe employer's share of contribution and thereby committed theoffence punishable under paragraph 76(d) of the EPF Scheme, 1952read with sec.14(1A), 14(2) and 14(A) of Provident Funds Scheme. Itis alleged in the complaint that for the month of June 1995, the 1staccused company failed to remit an amount of Rs.15748/- towardsthe Family Pension Fund Contribution which include the employees'share and employer's share in respect of Thengakkal Estate within 15days from the close of the respective months, and that accused Nos.2to 8 are the persons in charge and responsible for the conduct of thebusiness of the establishment of the 1st accused company and hencethey are liable for the non-payment of the dues. The complaint wasfiled after getting the required sanction for prosecution from the Crl.R.P.208/04 3competent authority, who in this case is the Regional Provident FundCommissioner, Kerala.3. The revision petitioners on their appearance before the trialcourt pleaded not guilty to the charge mentioned above. Thecomplainant officer was examined as PW.1 and Exts.P1 to P3 and P4series were marked on his side. When questioned under sec.313 ofCr.P.C. the accused persons denied the allegations. On the side ofthe accused persons Dws.1 to 3 were examined and Exts.D1 to D3,D4 series and D5 series were marked.4. The trial court on an appreciation of evidence found therevision petitioners guilty of the offence alleged against them,convicted them and sentenced them as aforesaid. On appeal byAccused Nos.1 to 4, the lower appellate court altered the charge tosec.41(d) of Family Pension Scheme and confirmed their substantivesentence, but reduced the fine to Rs.4000/-. Accused Nos.1 to 4 havenow come up in revision challenging their conviction and sentence.5. Heard the counsel for the revision petitioners and the counselfor the revision 1st respondent and also the Public Prosecutor.6. The following points arise for consideration:-I. Whether the conviction of the revision petitioners under sec.41(d) of the Family Pension Scheme by the lower appellate court can be sustained? Crl.R.P.208/04 4II. Whether the sentence imposed is excessive or unduly harsh?Point No. I 7. When the revision petition came up for hearing counsel forthe revision petitioners submitted that the entire dues from thecompany has already been paid and produced the information obtainedunder the Right to Information Act to the effect that the entire duesupto 1996-97 outstanding with the 1st accused company has alreadybeen paid, which is also not disputed by the other side. Counsel forthe 1st respondent argued that the respondent should be permitted torecover any other dues which are not paid by the 1st accused company.Therefore I confirm the conviction of the revision petitioners undersec.41(d) of the Employees Family Pension Scheme. Point No.II8. Taking into consideration the fact that the revision petitionershave paid the entire dues upto 1996-97, I feel that the sentenceimposed against the revision petitioners can be reduced to the fineamount only. In the circumstances I feel that the fine of Rs.4000/-imposed by the lower appellate court would meet the ends of justice.In the result the revision petition is allowed in part. Theconviction of the revision petitioners under sec.41(d) of the EmployeesFamily Pension Scheme is confirmed. They are sentenced to pay a Crl.R.P.208/04 5fine of Rs.4000/- each, in default revision petitioners 2 to 4 toundergo simple imprisonment for three months. One month time isgranted for payment of fine. The amount, if any, deposited by theaccused persons before the trial court shall be adjusted towards thefine imposed. P.Q. BARKATH ALI, JUDGE CRL.M.A. 781 of 2004 Dismissed.22.12.2009 P.Q. BARKATH ALI, JUDGE mt/-