Allowed

Baiju Radhakrishanan v. the Enforcement Officer, Employees Provident Fund Organization

Kerala HC6 Jun 2023Crl.MC/720/2018

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminalMisc. case to quash prosecution against a petitioner who was the second accused. The court held that since the petitioner resigned as Managing Director in 2007, before the alleged non-submission of returns occurred between 2013 and 2014, the prosecution was unsustainable.

What did the court decide?

Proceedings initiated against the petitioner/2nd accused in S.T.No.1538/2015 are quashed.

Baiju Radhakrishanan Vs the Enforcement Officer… — Writ and Judicial Review | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

¶4

TUESDAY, THE 6TH DAY OF JUNE 2023 / 16TH JYAISHTA, 1945

¶5

CRL.MC NO. 720 OF 2018

¶6

[IN THE PROCEEDINGS IN ST.NO.1538/2015 ON THE FILE OF THE JUDICIAL

¶7

FIRST CLASS MAGISTRATE COURT NO.II, ERNAKULAM]

¶8

PETITIONER/2ND ACCUSED:

¶9

BAIJU RADHAKRISHANAN
AGED 50 YEARS
S/O K.N.RADHAKRISHNAN NAIR, RESIDING AT CHANDRATHIL,
KUDAMALOOR, KOTTAYAM, PIN:686001.
BY ADVS.
SRI.K.S.SAJEEV KUMAR
SRI.MOHANDAS K.CHACKO

¶10

RESPONDENT/S:

¶11

1THE ENFORCEMENT OFFICER, EMPLOYEES PROVIDENT FUND
ORGANIZATION(MINISTRY OF LABOUR, GOVERNMENT OF
INDIA),BHAVISHYA NIDHI BHAVAN, SUB-REGIONAL
OFFICE,KALOOR, KOCHI-682 017.
2M/S. AGREENCO VIDESH PVT. LTD.
CAREER STATION ROAD, ERNAKULAM SOUTH-682 016.
3THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM-682031.

¶12

BY ADV SRI.S.PRASANTH, SC, EMPLOYEES PROVIDENT FUND
ORGANIZATION

¶13

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
10.03.2023, THE COURT ON 06.06.2023 PASSED THE FOLLOWING:

¶14

CRL.MC No.720/2018 2

¶15

O R D E R

¶16

The petitioner is the 2ndaccused in

¶17

S.T.No.1538/2015 on the file of the Judicial First

¶18

Class Magistrate Court-II, Ernakulam.

¶19

2.The aforesaid proceedings were initiated
based on a complaint submitted by the 1st
respondentEnforcementOfficer,Employees

¶20

Provident Fund Organization. The above complaint
was preferred alleging the offences punishable
under Section 14(2) and 14-A of the Employees’
Provident Funds and Miscellaneous Provisions Act,

¶21

1952 r/w. Paragraphs 76(b) and 76(d) of the
Employees’ Provident Fund Scheme, 1952.

¶22

3.The basic allegation against the accused is
that the 1st accused Company failed to submit
monthly returns in respect of the wages of the
employees for the period commencing from the month

¶23

CRL.MC No.720/2018 3 of May 2013 till the month of December, 2014. The complaint was submitted in such circumstances, and cognizance thereon was taken by the learned Magistrate. This Crl.M.C. is filed to quash the said proceedings.

¶24

counsel for the petitioner and Sri.S.Prasanth, the

¶25

learned Standing Counsel for the 1st and 2nd

¶26

respondents.

¶27

5. The main contention put forward by the
learned counsel for the petitioner is that under
no circumstances he can be implicated as an
accused in the said case. It is averred in the

¶28

complaint that the petitioner being the Managing
Director of the Company, was responsible for the
affairs of the Company, and therefore he has to be
prosecuted for non submission of the monthly
return during the period mentioned above. The

¶29

CRL.MC No.720/2018 4 learned counsel for the petitioner contends that,

¶30

as on the date of default alleged in the
complaint, the petitioner was not the Managing
Director. According to him, he resigned from the

¶31

aforesaid Company with effect from 21.2.2007.

¶32

Annexure A-2 is the extract of the minutes of the
meeting of the Board of Directors accepting the

¶33

resignation of the petitioner from the
Directorship and Managing Directorship with effect

¶34

from 21.2.2007. On the basis of the same, the

¶35

Company forwarded necessary documents to the

¶36

Registrar of Companies and the Registrar of

¶37

Companies accepted the resignation. The petitioner

¶38

places reliance upon Annexure A3, Form No.32

¶39

issued by the Registrar of Companies wherein it is
specifically mentioned that the petitioner is not

¶40

associated with the Company with effect from

¶41

21.2.2007. Therefore, it is pointed out that,

¶42

under no circumstances the petitioner can be

¶43

CRL.MC No.720/2018 5

¶44

proceeded against.

¶45

6.A statement has been filed by the Standing

¶46

Counsel for the 1st respondent. In the said
statement, it is averred that the 1st accused
establishment was covered under the Employees’
Provident Funds and Miscellaneous Provisions Act,
1952, with effect from 1.1.2014 with EPF Code
No.KR/19928. When the establishment applied for
coverage under section 1(4) of the Act on
voluntary basis, an ownership certificate in Form

¶47

5A was furnished by the employer in terms of
paragraph 36-A of the Employees’ Provident Fund
Scheme. In the said ownership certificate, the
petitioner herein was shown as one of the owners
and the person in charge of and responsible for
the conduct of the business of the establishment

¶48

and the employer in relation to the said

¶49

establishment as defined under section 2(e) of the

¶50

Employees’ Provident Funds and Miscellaneous

¶51

CRL.MC No.720/2018 6

¶52

Provisions Act, 1952. Subsequently, based on the
interim order dated 13.2.2019 passed by this Court
directing the 1st respondent to ascertain and
submit as to whether the petitioner had already
resigned from the establishment or not, an inquiry
was conducted in this regard. In such inquiry, it
was revealed that the petitioner indeed resigned
from the Directorship and Managing Directorship of
the Company with effect from 21.2.2007.

¶53

7.Thus, it is an admitted position that the

¶54

petitioner was not the Managing Director or

¶55

Director of the 1staccused Company after
21.2.2007. The allegation raised against the

¶56

accused is the non-submission of the monthly
returns for the period from May 2013 to December,
2014. Since the petitioner was not holding any
responsible position in the 1st accused Company at

¶57

the relevant time, the prosecution initiated
against him is unsustainable.

¶58

CRL.MC No.720/2018 7

¶59

In such circumstances, this is a fit case in
which the powers of this Court under section 482
Cr.PC is to be invoked. Accordingly, this Crl.M.C.
is allowed, and the proceedings initiated against
the petitioner/2nd accused in S.T.No.1538/2015 on
the file of the Judicial First Class Magistrate
Court-II, Ernakulam are hereby quashed.

¶60

Sd/-
 ZIYAD RAHMAN A.A.
JUDGE

¶61

pkk

¶62

CRL.MC No.720/2018 8

¶63

APPENDIX OF CRL.MC 720/2018

¶64

PETITIONER’S ANNEXURES
ANNEXURE A1:A TRUE COPY OF THE COMPLAINT IN ST 1538/2015
ON THE FILE OF THE JUDICIAL MAGISTRATE OF
FIRST CLASS NO.II, ERNAKULAM.
ANNEXURE A2:A TRUE COPY OF THE EXTRACTS OF THE MINUTES OF
THE MEETING OF THE BOARD OF DIRECTORS OF
AGREENCO VIDESH PVT. LTD., HELD ON 21.2.2007
ANNEXURE A3:A TRUE COPY OF FORM NO.32 NOTICE SUBMITTED BY
THE COMPANY.

Baiju Radhakrishanan v. the Enforcement Officer, Employees Provident Fund Organization

Case brief

What is this about?

What did the court decide?

Baiju Radhakrishanan v. the Enforcement Officer, Employees Provident Fund Organization

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sibi Jose, Vs State of Kerala

P.Kumar Vs State Bank of India

Biju Sundar Vs Asst. Labour Officer (Grade-Ii), Paravur

James, S/O. Thomas, Vs State of Kerala,Rep.by the

Haris Vs State of Kerala

Joseph Milton Mendez Vs State of Kerala