Partly allowed

Korah John v. State of Kerala

Kerala HC14 Jan 2016Crl.MC/4173/2014

Case brief

AI extract

What is this about?

The High Court of Kerala held that subsequent payment of Provident Fund dues preclude quashing criminal prosecution via s. 482 CrPC but directed the Magistrate to release the petitioner on bail if he surrendered within two weeks.

What did the court decide?

Petitioner granted liberty to move authorities for prosecution withdrawal on merits; directed to surrender to Magistrate within 2 weeks to recall warrant and release on bail.

Korah John Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937

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Crl.MC.No. 4173 of 2014

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CC 526/2010 of J.M.F.C.-II, PEERUMEDU CRIME NO. 17/2010 OF VANDIPERIYAR POLICE STATION, IDUKKI

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PETITIONER/ACCUSED:

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KORAH JOHN AGED 55 YEARS S/O LATE M.K.JOHN, PROPRIETOR, MILGRAM PLANTATIONS MLAMALA, THENGAKKAL P.O., VANDIPERIYAR-685533.

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BY ADVS.SRI.B.ASHOK SHENOY SMT.C.G.PREETHA SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH

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RESPONDENTS/COMPLAINANTS:

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STATE OF KERALA THROUGH STATION HOUSE OFFICER VANDIPERIYAR POLICE STATION, VANDIPERIYAR, IDUKKI DISTRICT REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.

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THE ENFORCEMENT OFFICER EMPLOYEES PROVIDENT FUND ORGANISATION, MUNNAR-685612 IDUKKI DISTRICT.

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R2 BY ADV. SRI.N.N.SUGUNAPALAN (SR.) R2 BY ADV. SMT.T.N.GIRIJA, SC,EPF ORGANISATION BY PUBLIC PROSECUTOR SMT. MADHUBEN

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 4173 of 2014

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APPENDIX

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PETITIONER(S)' EXHIBITS

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ANNEXURE A1: TRUE COPY OF FINAL REPORT DATED 13.9.2010 FILED BY THE ASSISTANT SUB INSPECTOR OF POLICE, VANDIPERIYAR POLICE STATION, IN CRIME NO.17/2010 OF VANDIPERIYAR POLICE STATION ALONGWITH DOCUMENTS, TAKEN ON FILE AS C.C.NO.526/2010 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT II, PEERMEDU.

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READABLE TYPEWRITTEN COPY OF ANNEXURE A1(8) TO A1(18), A1 921) AND A1 922) (ORIGINAL PAGES 17 TO 27, 30 AND 31 IN ANNEXURE A1 DOCUMENT.

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ANNEXURE A2: TRUE COPY OF NOTICE KR/KTM/292/ENF.I(4)/2009-10 DATED 25.11.2009 ISSUED BY THE ASST. PROVIDENT FUND COMMISSIONER, SUB REGIONAL OFFICE, KOTTAYAM TO PETITIONER.

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ANNEXURE A3: TRUE COPY OF ORDER NO.KR/KTM/292/7A7EN.I(4)/0910/18304 DATED 29.1.2010 ISSUED BY REGIONAL PROVIDENT FUND COMMISSIONER, SUB REGIONAL OFIFCE, KOTTAYAM TO PETITIONER.

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ANNEXURE A4: TRUE COPY OF ORDER NO.KR.KTM/292/7A/ENF.I(4)/ 2010/300A DATED 8.4.2010 ISSUED BY REGIONAL FIND COMMISSIONER, SUB REGIONAL OFFICE, KOTTAYAM TO PETITIONER.

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ANNEXURE A5: TRUE COPY OF ORDER NO.KR.KTM/292/7A/ENF.I(4)/2011 DATED 24.10.2011 ISSUED BY REGIONAL FIND COMMISSIONER, SUB REGIONAL OFFICE, KOTTAYAM TO PETITIONER.

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ANNEXURE A6: TRUE COPY OF ORDER NO.KR.KTM/292/7A/ENF.I(4)/ 2012/4224 DATED 26.3.2012 ISSUED BY REGIONAL FIND COMMISSIONER, SUB REGIONAL OFFICE, KOTTAYAM TO PETITIONER.

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ANNEXURE A7: TRUE COPY OF ORDER NO.KR.KTM/7A/RPFC/292/6429 DATED 22.8.2013 ISSUED BY REGIONAL FIND COMMISSIONER, SUB REGIONAL OFFICE, KOTTAYAM.

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ANNEXURE A8: TRUE COPY OF LETTER NO.KR.KTM/292/7A/ENF.I(4)-1/2013 DATED 19.9.2013 ISSUED BY ASST.PROVIDENT FUND COMMISSIONER TO PETITIONER.

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//True Copy//

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P.S To Judge

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RAJA VIJAYARAGHAVAN.V., J

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- - - - Crl.M.C.4173 of 2014

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- - - - Dated 14^th January, 2016

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ORDER

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1.The petitioner, who is the sole accused in C.C.No.526 of 2010 on the files of the Judicial Magistrate of First Class-II, Peermedu, has approached this court seeking to quash all further proceedings in the said matter.

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2.According to the petitioner, he is the sole proprietor of Milgram Plantations. The said concern was registered under the Employees Provident Fund & Miscellaneous Provisions Act (for brevity “EPF & MP Act”). The allegation is that the petitioner, after having collected the employees share of Provident Fund contributions from the wages of his employees for the period from March-2008 to August-2009, failed to remit the

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Crl.M.C.4173/14

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collected amount as mandated under law. On the basis of a complaint filed by the Enforcement Officer, Crime No.17 of 2010 was registered by the Sub Inspector of Police, Vandiperiyar and pursuant to investigation, Annexure-A1 Final Report has been laid before the learned Magistrate.

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3.It is submitted by the learned counsel appearing for the petitioner that as is evidenced by Annexure-A8, the petitioner has remitted all the dues together with interest. Annexure-A8 reveals that the 2^nd respondent has acknowledged the receipt of payment of dues upto March-2013. According to the learned counsel, in view of Annexure-A8, the proceedings as against the petitioner is nothing but an abuse of process of law and the same is liable to be quashed.

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Crl.M.C.4173/14

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4.Per Contra, the learned counsel appearing for the respondents has submitted that once there is a failure to remit the dues towards the Employees Provident Fund within the period as stipulated under the Act and the Rules framed thereunder, the offence is deemed to have been committed and subsequent payment of EPF arrears is not a ground to quash the proceedings. It is further submitted by the learned counsel that it is for the petitioner to effect payment in full together with all interest accrued and to move the appropriate authorities for withdrawal of prosecution.

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5.After having heard the respective counsels, I am of the considered view that subsequent payment of Provident Fund dues, for which prosecution has already been initiated, cannot be taken to be a ground for quashing the criminal proceedings. The

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Crl.M.C.4173/14

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extraordinary inherent powers of this Court u/s 482 of the Code cannot be exercised to stifle a legitimate prosecution.

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6.However, the petitioner is granted liberty to move the Central Provident Fund Commissioner or the appropriate authority as the case may be, for withdrawal of the prosecution stating all the relevant facts and if such an application is filed after clearing all the arrears and dues,there is no reason why the said authority shall not consider such application on its merits , provided that circulars for withdrawal of prosecution are in vogue now.

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7.The learned counsel appearing for the petitioner, on instructions, submits that non bailable warrant and steps u/s 82 & 83 of the Code has been initiated against him by the Trial Court on his failure to

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Crl.M.C.4173/14

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appear before the Court and expresses his apprehension that he would be remanded on his appearance before the learned Magistrate. I am of the view that the apprehension is without any basis. An interim order dated 17.11.2014 was granted on the submission of the petitioner that he has remitted all pending dues and would clear off the balance if any. So, under the circumstances, though the petitioner is not entitled to obtain the reliefs claimed in the petition, in view of the submission that dues have been wiped off, this Court is of the view that the petition can be disposed of by issuing the following directions :-

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If the petitioner surrenders before the Judicial First Class Magistrate CourtII, Peermedu, within 2 weeks from 18.1.2016, and moves an application for recalling the warrant and the proceedings

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Crl.M.C.4173/14

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initiated u/s 82 & 83 of the Code and to release him on bail in C.C.526 of 2010 pending before that Court, then the learned Magistrate is directed to consider and dispose of the above applications, taking specific note of the circumstances taken note of above, after hearing the Assistant Public Prosecutor of that Court, as far as possible, on the date of filing of the application itself,and in

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accordance with law.

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Crl.M.C is disposed of as above.

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RAJA VIJAYARAGHAVAN.V. Judge

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Mrcs/14.1.2016

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//True Copy//

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P.S To Judge

Korah John v. State of Kerala

Case brief

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Korah John v. State of Kerala

Case brief

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