Regional Provident Fund Commissioner vs Atma Ram and Sons and Another

Inderjit Singh, J.—This judgment will dispose of above five criminal appeals i.e. Criminal Appeal No. D-640-DBA to 644-DBA of 1996 as these have been filed by same appellant i.e. the Regional Provident Fund Commissioner against the same respondents i.e. M/s. Atma Ram and Sons and another. These appeals have arisen out of five different judgments dated 22.12.1995 passed by Sub-Divisional Judicial Magistrate, Khanna. The above criminal appeals have been filed against the five different judgments dated 22.12.1995 passed by Sub-Divisional Judicial Magistrate, Khanna, whereby accused-respondents M/s. Atma Ram & Sons and Shri Prem Nath, Partner of M/s. Atma Ram and Sons have been acquitted.

The brief facts of the prosecution have been taken from Criminal Appeal No. D-640-DBA of 1996. The proceedings in the above cases were initiated by Mr. D.R. Batra, Provident Fund Inspector, Khanna, by instituting complaints under paragraph 38 of the E.P.F. Scheme, 1952 read with Sections 6, 14(1A) and 14(A) of the E.P.F. Act against the accused respondents for imposing punishment of imprisonment for the offence u/s 14(1A) and 14(A) of the Employees Provident Fund and Misc. Provisions Act, 1952 (hereinafter referred to as the ''Act''). M/s. Atma Ram and Sons, G.T. Road, Khanna was an establishment within the meaning of the Act and accused-respondent No. 2 Prem Nath was its Managing Partner, hence responsible and accountable for all the lapses committed by the firm. They were bound to deposit a sum of ''441 on account of E.P.F. contribution and ''75 on account of Family Pension Fund contribution for the period November 1985, December 1985 and January 1986 in case No. 5/1 of 9.2.1989; Rs. 33 on account of insurance funds contribution and ''6.45 on account of insurance funds administrative charges for the period November 1985, December 1985 and January 1986 in case No. 6/1 of 9.2.1989; Rs. 33 on account of insurance funds contribution and ''6.45 on account of insurance funds administrative charges for the period February 1986 to April 1986 in case No. 7/1 of 9.2.1989; Rs. 33 on account of insurance funds contribution and 6.45 on account of insurance funds administrative charges for the period from February 1986 and April 1986 in case No. 12/1 of 9.2.1989 and Rs. 16 on account of administrative charges towards the EPF contribution for the period from May 1986 and June 1986 in case No. 13/1 of 9.2.1989. However, the accused-respondents failed to deposit the same with the authority concerned. Therefore, the complaints were filed after obtaining necessary permission from the authorities concerned wherein it was claimed that the accused-respondents by not depositing the amount as stated above had committed an offence punishable under paragraph 8 of the Employees'' Deposit Link Insurance Scheme, 1976 read with Section 14(1), 14(B) and 14(A) of the Act. It was claimed that accused No. 2 being the Managing Partner of the firm in question, during the relevant period, was the in-charge of the establishment and hence was responsible and accountable for the lapses committed by the firm in question.

The accused-respondents were summoned to face trial. The accused appeared and pleaded innocence and claimed trial.

In order to prove its case, the complainant appeared as PW-2 and one Sukhvinder Singh, Head Cleric of the authority concerned was examined as the only witness.

After the evidence of the complainant was closed by the counsel, whole of the incriminating evidence was put to the accused. The accused admitted that the firm in question was covered under the provisions of the Act in question and that it was allotted No. PN/5279. However, it was denied that any notice was issued to them by the complainant for raising the demand in question. He also denied that any show cause notice Ex. P.1 was issued to him. He also denied that summons Ex. P.3 were served upon him for initiating proceedings u/s 7(A) against him. He also denied the assessment order Ex. P.4. He also denied the receipt of the revenue certificate. It was claimed that the accused were innocent and the cases were false. However, in defence, no evidence was produced.

After going through the evidence and material on record, the learned trial Court vide above impugned judgments acquitted the accused respondents as stated above.

At the time of arguments, the learned counsel for the appellant argued that all these appeals have arisen from the judgments of acquittal of the respondents in the present cases. She argued that the respondents have been wrongly acquitted in the present cases. There is sufficient evidence produced by the complainant and cases of the complainant-appellant have been duly proved.

On the other hand, learned Amicus Curiae argued that these are criminal complaints and prosecution/complainant has to prove its case beyond reasonable doubt. The respondents are not supposed to lead evidence to prove anything. They have a right to keep silent during the trial. He argued that in the present cases there is no cogent evidence on record that at the relevant time, respondent No. 1 firm was running. There is also no cogent evidence or document on record that how many workers were engaged by the firm. Only then the question of deposit of EPF etc. will arise. Learned counsel for the respondents further argued that even from the evidence on record there is nothing to show that any notice was served as required under the Act upon the respondents. Therefore, he argued that the good reasoning has been given as per law for acquittal of the respondents.

I have gone through the evidence on record minutely and carefully and have heard learned counsel for the appellant and learned counsel appearing for the respondents.

From the record, I find that the complaints have been filed under paragraph 38 of the E.P.F. Scheme, 1952 read with Sections 6, 14(1A) & 14(A) of the Act on the ground that M/s. Atma Ram and Sons was ah establishment within the meaning of Employees'' Provident Fund and Misc. Provisions Act, 1952 and Prom Nath was its Managing Partner and the accused-respondents were bound to deposit amounts on account of EPF and on account of Family Pension Fund contribution for the different period as stated above and the accused-respondents failed to deposit the same. The case of the respondents before the lower Court is that in the year 1985 itself the accused-firm had been closed and no employee was working and accused-firm was not under duty to make any contribution. A perusal of the record shows that there is no cogent evidence on record brought by the complainant to show that during the material time, the firm in question was working. There is also no cogent evidence on the record to show whether the firm had employed any worker or how many workers were working in the firm. When no cogent evidence has been produced on the record regarding the same, then question of depositing of amount of EPF and family pension fund contribution does not arise. PW-1 in his statement has stated that necessary demand notices were issued to the accused-respondents. PW-1 also proved a copy of said notice Ex. P.1. But there is nothing on the record to show that this notice was ever served upon the respondents. No despatch register was produced to show that the notice in fact had been issued. No receipt of the RC etc. has been produced. Therefore, there is no evidence on record to show that notice Ex. P.1 or any other notice had been served upon the respondents. As per the complaints also, no such allegation that the respondents refused to show their books or had made any false statement to avoid the payment in any scheme has been alleged. A perusal of the judgments dated 22.12.1995 passed by learned Sub-Divisional Judicial Magistrate, Khanna shows that while acquitting the accused in these cases, good reasoning has been given and the evidence on the record has been discussed and the judgments dated 22.12.1995 passed by the learned SDJM are as per law.

The parameters in the appeal against acquittal are different. Even if the appellate Court has second opinion, even then the opinion in favour of the accused is to prevail. Therefore, from the perusal of the judgments, I do not find that these are perverse or against law and evidence. Therefore, the same are upheld.

Finding no merit in the appeals, the same are dismissed.