Kongarar Spinners Ltd. vs Mr. S. Sankaralingam, Enforcement Officer, Employees Provident Funds

K. Mohan Ram, J.—The petitioners are the accused facing trial in C.C. Nos. 234, 237, 240, 238, 239 and 233 of 2006, respectively,

pending on the file of the Judicial Magistrate No. II, Udumalpet and they have filed the above petitions seeking to quash the above said criminal

proceedings.

The brief facts that are necessary for the disposal of the above criminal original petitions are set-out below:

Under Sections 6 and 6-A read with paragraphs 30 and 38 of the Employees'' Provident Funds Miscellaneous Provisions Act, 1952 and

Employees'' Provident Funds Scheme the accused are required to pay the employer''s contributions to the Employees'' Pension Fund in respect of

the employees of the said establishment within fifteen days of the close of every month.

It is the case of the respondent in each of the petitions that inspite of several requests the accused failed to pay the Employees Pension Fund

Contributions for the following periods before the due date:

Month & Year Employer''s Share towards Employees'' Pension Fund Due date for payment

12/2000 188046 15/01/2001

01/2001 193364 15/02/2001

02/2001 167274 15/03/2001

Total 548684

Month & Year Employer''s Share towards Employees'' Pension Fund Due date for payment

09/2001 177500 15/10/2001

10/2001 178439 15/11/2001

11/2001 169788 15/12/2001

Total 525727

Month & Year Employer''s Share towards Employees'' Pension Fund Due date for payment

06/2002 172534 15/07/2002

07/2002 179098 15/08/2002

08/2002 180468 15/09/2002

Total 532100

Month & Year Employer''s Share towards Employees'' Pension Fund Due date for payment

12/2001 185628 15/01/2002

01/2002 186252 15/02/2002

02/2002 173549 15/03/2002

Total 545429

Month & Year Employer''s Share towards Employees'' Pension Fund Due date for payment

03/2002 182250 15/04/2002

04/2002 178414 15/05/2002

05/2002 177036 15/06/2002

Total 537700

Month & Year Employer''s Share towards Employees'' Pension Fund Due date for payment

09/2000 162978 15/10/2000

10/2000 179697 15/11/2000

11/2000 171887 15/12/2000

Total 514562

respectively. Under the above said circumstances since the accused/petitioners herein have committed offences under Sections 14(1A) and 14A of

the Employees'' Provident Funds and Miscellaneous Provisions Act 1952, the respondent has filed a complaint before the Court of Judicial

Magistrate No. II, Udumalpet, on 13.09.2005 and the same has been taken cognizance and process have been issued to the petitioners.

Challenging the validity of the said prosecution launched against the petitioners the petitioners have come before this Court by invoking the

provisions contained in Section 482 of the Criminal Procedure Code to quash the said proceedings on the only ground that the complaint filed by

the respondent is barred by limitation as per the provisions contained in Section 468 of the Criminal Procedure Code.

Heard the learned Counsel on either side.

Learned Counsel for the petitioners in each of the petitions by referring to Section 468(1)(c) of the Criminal Procedure Code submitted that

since the maximum punishment that could be imposed for the offence committed under Sections 14(1A) and 14A of the Employees'' Provident

Fund Act is only three years, the complaint ought to have been filed within a period of three years, but admittedly the complaint has been filed

beyond the period of three years and hence the criminal original petitions are liable to be quashed. In support of the above said contention the

learned Counsel for the petitioners relied upon a decision of a learned single Judge of this Court reported in S.G. Gopiah Vs. State by Inspector of

Police, District Crime Branch, and submitted that it was a case where the offence committed was under Sections 21 and 36(E) of the Tamil Nadu

Forest Act 1882 read with Rules 3 and 7 of the Tamil nadu Sandalwood Possession Rules, 1970 and since the complaint filed was beyond the

period of limitation prescribed the criminal case was quashed. In the said decision in paragraph 3 it is observed as follows:

The Government Advocate concedes that in this case the cognizance has been taken only after the period of limitation. u/s 468 Cr.P.C., for the

offences punishable up to three years, the charge-sheet or complaint has got to be filed within three years. Beyond the said period of limitation the

Court will not be empowered to take cognizance of the case since there is a bar provided under the said section. Therefore, in view of legal

infirmity in the matter of taking cognizance, I feel that the order passed by the lower court is not sustainable in law, and therefore it is liable to be

set aside.

Relying upon the above said decision the learned Counsel for the petitioner in each of the petitions submitted that all the criminal cases pending

against the petitioners are liable to be quashed. Except the above said submissions no other submissions have been made by the learned Counsel

for the petitioner.

Countering the said submissions the learned Counsel for the respondent in each of the petitions submitted that the offence under Sections

14(1A) and 14A are continuing offences and as such the period of limitation prescribed u/s 468(1)(c) of the Criminal Procedure Code is not

applicable to these cases. Earned Counsel further submitted that the decision reported in 1997 (I) CTC 388 (referred to supra) is not applicable to

the facts of this case. To substantiate the same the learned Counsel for the respondent relied upon the following decisions:

(i) 1980 L.W. (Crl) 226 (DB) Premier Studs & Chaplets Co., In re: (D.B. - Order of Reference, Maheswaran, J.), wherein in paragraph 20 of the

said decision it is laid down as follows:

The statute creates a duty on the part of the employers to pay a contribution as laid down by Sections 6 and 6A of the Act and paragraph

76(a) of the Scheme penalises the failure to pay such contribution and paragraph 76(b) penalises the deduction or attempting to deduct from the

wages or other remuneration of a member the whole or any part of the employer''s contribution and paragraph 76(c) penalises the failure or refusal

to submit any return, statement or other document required under the Scheme. The failure to pay any such contribution or to submit any return or

statement continues from day to day; a fresh offence is committed by the accused so long as he continues in his failure to pay the contribution or to

submit the return or statement. It is not mere failure to obey an order or to comply with a direction. It is not as if once he fails to pay the

contribution or to submit the return on the due date, the employer is relieved of his duty and there is nothing more to be done. The duty to pay the

contribution or to submit the return still remains and continues till the contributions are made or the returns submitted. Therefore, a failure to pay the

contribution or to submit the return is a continuing breach of a duty which continues till it is performed and the non-performance of such a duty

from day to day is a continuing wrong. We are unable to agree with Natarajan, J''s observation that since the contributions and charges have to be

paid under the Act or the Schemes on the 15th of the month next after the one for which the contributions or charges were due the offences

become completed as soon as the contributions or charges were not remitted within the stipulated time. A failure to pay the contributions or to

submit the returns is an offence which is susceptible of continuance and is certainly distinguishable from the one which is committed once and for all

and it is a liability which continues until the contribution is made or the return submitted and as such the offence complained of against the revision

petitioners in our opinion, comes clearly within the definition of a continuing offence as contained in the decision of the Supreme Court in State of

Bihar v. Deokaran Menshi (1973) L.W. Crl. 129. In the aforesaid case the Supreme Court was dealing with Sections 66 and 79 of the Mines Act

and the Indian Metaliferous Regulations, (1926) Regulation 3 and the Supreme Court held that the infringesment in that case occurred on January

21 of the relevant year under Regulation 3 read with S. 66 and is complete on the owner failing to furnish the annual returns by that day. The

Supreme Court further noticed that the regulation did not lay down that the owner, manager, etc., of the mine con-lerned would be guilty of an

offence if he continues to carry on the mine without furnishing the returns or that the offence continued until the requirement of Regulation 3 was

complied with or, in other words, Regulation 3 does not render a continued disobedience or non-compliance of it an offence. It might be noted that

the Supreme Court has in the aforesaid decision referred with approval to the decision in State Vs. A.H. Bhiwandiwalla, : Therefore, in our view,

the offences complained of, against the revision petitioners are continuing offences and as such u/s 472, Crl.P.C. a fresh period of limitation would

begin to run at every moment of the time during which the offence continues.

(ii) Bhagirath Kanoria and Others Vs. State of M. P., wherein the Apex Court in paragraph 21 has laid down as follows:

For these reasons, we are of the opinion that the offence of which the appellants are charged, namely, non-payment of the employer''s

contribution to the Provident Fund before the due date, is a continuing offence and, therefore, the period of limitation prescribed by Section 468 of

the Code cannot have any application. The offence which is alleged against the appellants will be governed by Section 472 of the Code, according

to which, a fresh period of limitation begins to run at every moment of the time during which the offence continues.

I have carefully considered the above said submissions made by the learned Counsel on either side. The contention of the learned Counsel for

the petitioner that since the maximum punishment that could be imposed for the offence committed under Sections 14(1A) and 14A of the

Employees'' Provident Fund Act is only three years, the complaints ought to have been filed within a period of three years as provided for u/s

468(1)(c) of the Criminal Procedure Code and whereas admittedly the complaints have been filed beyond the period of three years and as such

the complaints are liable to be quashed has to be rejected in the light of the law laid down by a Division Bench of this Court in 1980 L.W. Crl. 226

(referred to supra) and the law laid down by the Apex Court in the decision reported in Bhagirath Kanoria and Others Vs. State of M. P., . Since

as per the above said two decisions the offences, for which the petitioners are facing criminal trial, are continuing offences the period of limitation

prescribed u/s 468(1)(c) of the Criminal Procedure Code will not apply to these cases. The law laid down by the Apex Court squarely applies to

the facts of these case.

The above criminal original petitions are devoid of merits and the same are liable to be dismissed and accordingly dismissed. Consequently

connected MPs are closed.