Dismissed

State v. M/S.Kolickanam Estate

Kerala HC11 Jul 2022CRL.A/677/2006

Case brief

AI extract

What is this about?

Criminal appeal filed against the acquittal order of a First Class Magistrate in a private complaint regarding non-payment of EPF contributions. The High Court held that a criminal appeal is not maintainable against a discharge order under Section 245(1) Cr.P.C., as the proper remedy is revision under Section 397 Cr.P.C. Consequently, the appeal was dismissed.

What did the court decide?

The criminal appeal was dismissed on the ground that it is not maintainable against an order of discharge under Section 245(1) Cr.P.C.

State Vs M/S.Kolickanam Estate — Pension and Retirement Benefits | Kerala HC (2022)

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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 P.V.KUNHIKRISHNAN

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MONDAY, THE 11TH DAY OF JULY 2022 / 20TH ASHADHA, 1944

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CRL.A NO. 677 OF 2006

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AGAINST THE ORDER/JUDGMENTCC 81/2004 OF JUDICIAL

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MAGISTRATE OF FIRST CLASS ,PEERUMEDU

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Crl.L.P. 172/2006 OF HIGH COURT OF KERALA

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APPELLANT/S:

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STATE, REP. BY THE ENFORCEMENT OFFICER,
EMPLOYEES PROVIDENT, FUNDS, 2ND MILE, PALLIVASAL
(PO), IDUKKI DISTRICT.
BY ADV SRI.N.N.SUGUNAPALAN (SR.)

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RESPONDENT/S:

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1 M/S.KOLICKANAM ESTATE VANDIPERIYAR-REPRESENTED BY MANAGER,, KOLICKANAM ESTATE, VANDIPERIYAR.

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2 SRI.S.M.SHARMA DIRECTOR M/S.RAM BAHADUR THAKUR LTD.,, SAMUDRAMAHAL, 25TH FLOOR, DR.ANNIE BESANT ROAD,, WORLI, BOMBAY.

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3SHRI.P.K.SINGH
MANAGER, KOLICKANAM ESTATE, VANDIPERIYAR.
BY ADVS.
N.JAMES KOSHY
SRI.JOSEPH KODIANTHARA
SRI.M.RAMESH CHANDER

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OTHER PRESENT:

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SMT.T.N.GIRIJA FOR APPELLANT

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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-2-

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Crl.A.No. 677 of 2006

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P.V.KUNHIKRISHNAN, J.

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====================================================== Crl.A.No. 677 of 2006

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Dated this the 11^th day of July, 2022

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JUDGMENT

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This appeal is filed against the acquittal order passed by

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the Judicial First Class Magistrate Court, Peermade in CC No.81 of 2004. This case is registered based on a private complaint filed by the Enforcement Officer, Employees Provident Fund, Idukki, against the accused alleging offences under Paragraph 42 of the Employees’ Pension Scheme, 1995 read with Section 14-A and Section 14(1-A) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. It is alleged by the complainant that A1 is an estate owned by M/S.RBT Ltd., and is an establishment within the meaning of the above Act. The 2^nd and 3^rd accused are the persons in charge of and responsible to the estate and for the conduct of its business. As per Rule 3 and 4 of the Employees Pension

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Crl.A.No. 677 of 2006

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-3-

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Scheme, 1995, the accused are required to pay the employer’s share of contribution to the pension fund every month. It is the case of the complainant that the accused failed to remit the above contribution amounting to Rs.2,31,112/- for the month of October, November and December, 1996. Hence, it is alleged that the accused committed the aforesaid offences.

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After going through the evidence available, the

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learned Magistrate found that there is no sufficient ground made out to frame charge against the accused and consequently the accused were discharged under Section 245(1) Cr.P.C. Aggrieved by the same, this appeal is filed.

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Heard the counsel for the appellant and the counsel appearing for the respondents.

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Admittedly the impugned order was passed under

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Section 245(1) Cr.P.C. If that is the case, only a revision under

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-4-

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Crl.A.No. 677 of 2006

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Section 397 Cr.P.C. is maintainable. The appeal itself is not maintainable. Moreover, the trial court, after considering the entire materials available, discharged the accused. It will be better to extract the relevant portion of the order.

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“5. Admittedly, the company M/s RBT Ltd, is not made an accused. A1 is the Kolickanam estate owned by the company, M/S RBT Ltd., Bombay. A2 is alleged to be the Director of the Company and A3 is alleged to be the manager of the estate. As per Ext.P1 proceedings of the Regional Provident Commissioner Code No. K.R/67 is allotted to M/S RBT Company. Kolickanam estate is a property owned by the above company. A property is not a legal person against whom a complaint could be lodged. The employer is the RBT Company which has been allotted code No.K.R/67 by Provident Fund Department. Hence I find that complaint filed against a property is not maintainable.

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6. A2 is alleged to be the Director of the RB T Company. According to the complainant, A2 and 3 are liable as employers to remit the contributions. As per Ext.P4 Sanction, it is clear that A2 and 3 are prosecuted as employers. In a similar case c.c.21/200, the Director of the RBT Company was convicted and an appeal before the Hon'ble Sessions Court as criminal appeal No.98/04, the Hon'ble Sessions Court

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Crl.A.No. 677 of 2006

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Thodupuzha, acquitted the director holding that the person who was in ultimate control over the affairs of the establishment alone is responsible as an employer and not all directors of the company. The above order is binding on this court. In this case also there are no materials or allegation to the effect that A2 has ultimate control over the affairs of the company. Hence I find that A2 is not liable and is to be discharged.

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7. A3 is alleged to be the manager of the Kolickanam estate. He is also prosecuted being the employer and in control of the affairs of the establishment. Ext.P1 is the proceedings of the Provident Fund Commissioner, determining liabilities. It shows that the accused are liable. On what basis it was determined is not at all mentioned. Ext.P1 is a proceedings u/s 7A of the above Act. A reading of S. 7-A (3) would show that before issuing a proceedings u/s 7-A the employer concerned shall be given a reasonable opportunity to represent its case. No scrap of paper is produced to show that a notice was despatched and served on A3. Ext.P2 is the notice issued to show cause against the prosecution. In Ext.P2 the name of A3 P.K Singh is mentioned as manager but also D. Dogra is mentioned as the manager. Ext.P3 series acknowledgement cards also shows that D.Dogra was issued a notice and not A3. There are no other materials to show that A3 is the manager of the establishment.

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Crl.A.No. 677 of 2006

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8. For the above discussions I find that no sufficient grounds are made out to frame charge against the accused and the evidence which would be adduced even if stands unrebutted would not warrant conviction of the accused. In the result, the accused are discharged u/s 245 (1) Cr.P.c.”

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I see no reason to interfere with the above finding.

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Accordingly, there is nothing in it. Therefore, this Crl.A. is

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dismissed.

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sd/-

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P.V.KUNHIKRISHNAN

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JUDGE