Kerala High Court · 2009

P.Q. BARKATH ALI, J.------------------------------------------------------CRL. R.P. 3072 of 2003 ------------------------------------------------------Dated: DECEMBER 22, 2009 ORDER The revision petitioners are accused Nos.1 to 4 in S.T.CaseNo.707/1996 of Judicial First Class Magistrate Court, Peerumedu.They, along with the 8th accused, 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 weresentenced to undergo rigorous imprisonment for three months and topay a fine of Rs.5000/- each under sec.14(2A) of the EPF Act, indefault to undergo simple imprisonment for one month. Proceedingsagainst accused Nos.5 to 7 were dropped by the trial court as perorder in CMP 343/1999 dated 27.2.1999. On appeal by accusedNos.1 to 4 as Crl.A.43/2000 of Addl.District and Sessions Court,Thodupuzha, the lower appellate court altered the charge into sec.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.47/2000 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.2. The 1st accused/1st revision petitioner is a limited company Crl.R.P.3072/03 2having 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 to 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 during the months of January toMarch, 1995, the 1st accused company effected recovery ofRs.14964/-, Rs.12766/- and Rs.12966/- respectively from the salaryof the employees in Thengakkal Estate, but the company failed toremit those amounts together with its contribution, which is equal tothe employees' contribution, within 15 days from the close of therespective months, and that accused Nos.2 to 8 are the persons incharge and responsible for the conduct of the business of theestablishment of the 1st accused company and hence they are liable forthe non-payment of the dues. The complaint was filed after gettingthe required sanction for prosecution from the competent authority,who in this case is the Regional Provident Fund Commissioner, Kerala.3. The revision petitioners on their appearance before the trial Crl.R.P.3072/03 3court pleaded not guilty to the charge mentioned above. Thecomplainant officer was examined as PW.1 and Exts.P1 to P3 weremarked on his side. When questioned under sec.313 of Cr.P.C. theaccused persons denied the allegations. On the side of the accusedpersons an official of the 1st accused company was examined as DW.1.4. The trial court on an appreciation of evidence found therevision petitioners and the 8th accused guilty of the offence allegedagainst them, convicted them and sentenced them as aforesaid. Onappeal by Accused Nos.1 to 4, the lower appellate court altered thecharge to sec.41(d) of Family Pension Scheme and confirmed theirsubstantive sentence, but reduced the fine to Rs.4000/-. AccusedNos.1 to 4 have now come up in revision challenging their convictionand 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?II. 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 obtained Crl.R.P.3072/03 4under 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 both the courts below 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 afine 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 the Crl.R.P.3072/03 5accused persons before the trial court shall be adjusted towards thefine imposed. P.Q. BARKATH ALI, JUDGE CRL.M.A. 12426 of 2003 Dismissed.22.12.2009 P.Q. BARKATH ALI, JUDGE mt/-