Mihir Kumar Dutta vs B. Mukherjee and Another

R.P. Gupta, J.—This judgment will dispose of 10 (ten) Revision petitions filed against prosecution u/s 14(A)(1) of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952. The petitioner accused was liable to pay employee''s share as well as his own contribution to the Provident Fund for the month of October, 1985 to February, 1986. They had failed. Proceedings for recovery were started against them under Sections 8 of the Act. Certificates were issued by the Certificate Officer for the recoveries. The accused-petitioner made payment by challans dated July 28, 1986, March 25, 1987, April 13, 1987, May 19, 1987, August 28, 1987, June 20, 1987 and lastly September 10, 1987. Thus the last payment pertaining to the default period had been completed by September 10, 1987.

The above ten complaints were filed on October 26, 1989 before the Additional Chief Judicial Magistrate, Alipore 24 Parganas (South) and the learned Magistrate took cognizance and directed summon to be issued against the accused petitioner.

The details of the complaints according to the number of revisions along with subject matter of the complaints may be noted here as under:

No. of Cr. Rev. No. of Comp. case. Period of default Nature of default in P.F. contribution Amount Date of Payment

No.618/90 C 1505/89 October, 85 Employer''s share P.F. Rs. 250/- 9-7-86

Employer''s share Family Fund Rs. 60/- 15-7-86

No.670/90 C 1501/89 February, 86 Employer''s share P.F. Rs. 242/- between 25-3-87 and 28-8-87

Employer''s E.P.F. Contr. Rs. 51/- 20-8-87

No.671/90 C 1502/89 January, 86 Employer''s share P.F. Rs. 261/- 25-3-87 and 28-8-87

Employer''s share Family Pension Rs. 60/- 20-6-87

No.672/90 C 1505/89 December, 85 Employer''s share Rs. 245/- 9-7-86

Employer''s share Family Pension Rs.50/- 20-6-87

No.673/90 C 1504/89 November, 85 Employer''s share Rs. 245/- 9-7-86

Employer''s share Family Pension Rs.50/- 15-7-86

No.674/90 C 1506/89 September, 85 1. Employee''s share P.F. Rs. 50/- between 9-7-86 and 28-8-87

Employer''s share P.F. Rs.418/-

Employee''s share of F.P.F. Cont. Rs.38/- 15-7-87

Employer''s share of F.P.F. contr. Rs. 96/- 19-5-87

Administrative charges Rs. 11.55/- 15-7-86

No.675/90 C 1507/89 August, 85 1. Employees share P.F. Rs.93/- 9-7-86

Employer''s share P.F. Rs.340/- 25-3-87

Employees share P.F. Rs.21/- 15-7-87

Employ. Share P.F. Rs.80/- 19-5-87 and 10-9-87

Adminits. Charge Rs.5.85/- 16-7-86

No.676/90 C 1508/89 Aug.85 to Oct.85 Deposit linked Insurance Fund Contr. Rs. 96/- 15-7-86

No.677/90 C 1509/89 Nov. 85 to Jan. 86 Deposit Linked Insurance Fund Contr. Rs. 74/- 15-7-86

No.678/90 C 1510/89 Feb.86 Deposit Linked Insurance Fund Contr. Rs. 20/- 15-7-86

The petitioner has come in revision before this Court for quashing of the entire proceedings. The contention of the petitioner of all these cases is that the complaints were filed after the period of limitation prescribed in Section 468(2)(b) of the Code of Criminal Procedure which prescribes the period of limitation for taking cognizance as one year from the date of offence. The assertion is that although the default for payment of employer''s contribution or employees share of Provident Fund or Pension Fund or other charges under the Act are a continuing offence but the offence continues only so long as the default continues. On the payment being made, the offence remains a post offence and from the date of payment the prosecution must be started within one year as these offences were punishable with imprisonment upto six months at the time when they were committed, and even up to the time they continued that is upto September, 1987. It was only w e f. March 1, 1988 that such an offence was made punishable with imprisonment upto three years. Any offence punishable with imprisonment upto six months as was the pre-amendment, would attract provision of limitation for starting prosecution within one year. The assertion is that since more than one year passed before the complaints were filed or cognizance was then, taken the Court could not take cognizance due to the bar laid down u/s 468(2)(b) of the Code of Criminal Procedure. Hence, prayer for quashing prosecution.

I have heard the learned Counsel Mr. Soumen Kr. Ghosh appearing with Mr. Aloke Nath Ghosh for the accused petitioner and Shri Anil Gupta for the Commissioner of Provident Fund. Shri Anil Gupta has vehemently urged that a continuing offence continues without any hindrance and complaint can be filed at any time and payment of the defaulted dues does not stop the continuity of the offence.

I have given my thought to the respective arguments of both sides and perused the records. The Apex Court in its judgment cited at AIR 1988 SC 1688 titled as Bhagirath Kenojia and Ors. v. State of M.P. observed that payment of employee 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 of Criminal Procedure cannot have any application. The offence will be governed by Section 472 according to which, a fresh period of limitation begins to run at every moment of the time during which the offence continues.

The contention of the learned Counsel for the Providend Fund Commissioner is that offence continues once the payment is not made in due time u/s 6 of the Act well as paragraph 30 of the Employees'' Provident Fund Scheme read with para 30 of the Employees'' Provident Fund Scheme which is punishable in paragraph 76 of the aforesaid Scheme. The learned Counsel for Provident Fund Commissioner also drew my notice to a judgment of the Single Bench of this Court in C.R. I 249- 1258/ 91 titled as Sanyal H. & Co. Ltd v. C.B. Pal. The Single Bench held that payments made after complaint is filed do not obviate the offence under the Employees'' Provident Fund and Miscellaneous Provisions Act. Clearly then the judgment stands on different fact. The complaint there was filed before any payment of the default money was made. Question of limitation was therefore, not involved,

As regards the Supreme Court pronouncement that is the main guidance of the Apex Court on the subject which is relevant and words on the limitation runs at every moment of the time during which the offence on defaulted payment will continue so long as the default continues and once the payment is made, the default stops. Offence, becomes a past one and the period of limitation will start running u/s 468 of the Code of Criminal Procedure, after the payment. Section 472 of the Code of Criminal Procedure will Stop applying after the date of payment. That Provisions will apply until the date of payment and not beyond. The Supreme Court had observed as under:

"A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arised out of a failure to obey or comply with a rule or its requirement and which involved a penalty, the liability for which continues until the rule of its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed, the distinction between the two kinds of offences is between an act or omission which constitutes an of fence once and for all and no act or omission which continues and, therefore, constitutes a fresh offence every time of occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."

Thus the law is clear that the offence u/s 14(A) (1) and (2) as well as the offence under paragraph 76 of the scheme are continuing offences, but these continue so long as the default in payment continues and thereafter the running nature of the offence stops and it becomes a completed offence which continued till the date of payment. So the period of limitation starts running finally from the date of payment.

Thus in this case limitation has to he counted from the last date of payment of the dues which was not beyond September 10, 1987. The complaint was filed on August 26, 1989. It may be noticed that the Sanctioning Authority was moved by the concerned Officer on September 4, 1986 and the sanction was given for prosecution u/s 14(A)(C) on February 5, 1988. It is conceded by the learned Counsel for the petitioner that this period of 155 days has to be added to the period of limitation of one year. Still at the most, the period will come to one year and 155 days. But the complaint having been filed in all these cases on August 26, 1989 it was filed after more than one year and 12 days. So the cognizance could not be taken to the bar provided u/s 468(2)(b) of the Code of Criminal procedure.

Considering the facts and circumstances of the cases and the law which is clearly applicable including the bar of limitation, it is apparent that the prosecution in these cases was started after the period of limitation prescribed u/s 468(2)(b) and due to the bar provided therein cognizance could not be taken and was bad in law. Hence, the prosecution proceedings in all these cases are quashed. The petitioner is freed from all the bonds in these cases. However, in the facts and circumstances of this case, I will make no order as to costs.

This revisional application is allowed.