Tapan Biswas vs The State of West Bengal & Anr.

Challenging the legal pregnability of continuance of proceeding of G.R.

Case No. 5316 of 2010 under Section 406 of I.P.C. pending before the

learned C.J.M., the petitioner filed this application and prayed for quashing

of aforesaid proceedings.

Prosecution case is such that the petitioner deducted Rs.8.277 from

his employees share of provident fund contribution but did not deposit the

same within the stipulated time and so there is violation of Section 6 of the

Act of 1952. According to them an offence under Section 406 of I.P.C. is

established and the F.I.R. was lodged on 19.11.2010.

Thereafter on 25.11.2010 the petitioner deposited the entire dues

and so, according to him, the proceedings should be quashed. Factual

aspect is not disputed but the legal aspect has been seriously disputed.

The core question to be decided here if after initiation of a

proceeding for non-deposit of provident fund amount before the appropriate

authority, if the employer deposits the same whether it would absolve the accused persons of the liability of the criminal offence or not. Let me discuss

the decisions on which the petitioner relied.

The petitioner herein has relied on the decision of Adoni Cotton

Mills Ltd. -vs.- Regional Provident Fund Commissioner & Ors ., reported

in (1995) Supp. 4 S.C.C. 580, Jasoda Glass & Silicate & Ors. -vs.-

Regional Provident Fund Commissioner & Ors . reported in 2002 (2)

C.H.N. 407, and also a decision of M/s. AIR Transport Corporation and

Ors. -vs.- State of West Bengal & Anr . reported in (2006) 1 C. Cr. L. R.

(Cal) 616, Howrah Motor Company Ltd. -vs.- Samir Kumar Das

reported in (2004) 4 C.H.N. 291.

On the other hand, the opposite party i.e. P.F.Authority relied on

the decision of Mr. Debidas Dutta -vs.- State of West Bengal reported in

2006 (1) CLJ (Cal) 593, Anjuman Tea Company Ltd. & Ors. -vs.- State

of West Bengal & Ors . reported in 2008 (1) CHN 1061, M/s. Hotel Dock

Palace Private Ltd and another -vs.- State of West Bengal & Anr .

reported in (2007) 2 CLT LT 259 (HC) and an unreported decision passed in

connection with Madan Gopal Kundu -vs.- State of West Bengal in

C.R.R. 1607 of 2015 and Susil Kumar Bagla -vs.- State reported in

(2003) 3 CLT 470 (HC) and also an unreported decision of this Court

passed in C.R.R. 2303 of 2014, in which this court had relied upon the

decision reported in (2003) 3 C.L.T. 470 and also the unreported decision

passed in connection with C.R.R. 1607 of 2015.

At the very outset, I would like to refer the decisions reported in

2006 (1) C.R.R. (Cal) 616 wherein the Co-ordinate Bench relied on two

decisions reported in 1995 Supp. (4) S.C.C. 580, and (2004) 4 C.H.N. 291. Relying on the said decisions, the said learned Co-ordinate Bench held that

since the payment is made and the purpose has been fulfilled the question

of continuance of the proceeding, in his opinion, would be an abuse of the

process of the court and accordingly the Co-ordinate Bench has quashed the

proceeding. But in the said judgment the Co-ordinate Bench held "no doubt

the allegation made in the complaint cannot be white-washed by any

subsequent payment." Now, this court is to consider the relevant decision

on which the Co-ordinate Bench has relied.

Factual aspects of Adoni Cotton Mills Ltd. -vs.- Regional

Provident Fund Commissioner & Ors . reported in (1995) Supp. 4 S.C.C.

580 is such that the said prosecution was initiated in respect of certain

offences alleged to have been committed in 1976 i.e. about 15 years back

from the date of passing of the judgment by the Hon''ble Apex Court. Hon''ble

Court granted stay of further proceeding on condition that the appellants

would deposit an amount of Rs.43,000/- and also furnished a bank

guarantee for sum of Rs.60,000/- and that was complied with by the said

appellant by depositing the same. It would be apt to mention that in the said

case the company made a default to make relevant deposits for the months

of April 1976 to July 1976. But before that a writ petition was filed in the

same High Court and the first appellant was appointed as a Receiver to

manage the affairs of the Mills. The said writ petition was filed challenging

"The Textile Undertaking Nationalisation ordinance" and the said writ

petition was dismissed on 27.7.1976. Therefore, it can be safely presumed

that due to pendency of writ petition before the said High Court up to

August 1976, the defaults occurred. So the default was up to July 1976. Considering all the above-stated circumstances, Hon''ble Apex Court came to

the finding and quashed the proceedings on certain terms.

The petitioner also relied on another decision reported in (2004) 4

C.H.N. 291 in Howrah Motor Company Ltd. -vs.- Samir Kumar Das

wherein a Co-ordinate Bench quashed the proceeding. Factual aspects of

that case is such that due to an order passed in C.S. 384 of 1998 the

respondents of that case were restrained from withdrawing the amount

from the banks. The respondent also sought for an order to pay the entire

amount and expressed its intention to liquidate the remaining dues as

early as possible and permission was accorded to liquidate the remaining

dues by six monthly instalments. As there was an order from a competent

court, by which the said respondents were restrained from withdrawing the

money from the bank, so the learned Co-ordinate Bench held "things,

however, were not within the effective control of the petitioners

either." That problem was eventually sorted out with the appointment of a

special officer overseeing the disbursement of salary and other dues of the

employees. Considering all these aspects learned Co-ordinate Bench has

relied on the decision in connection with Adoni Cotton Mills Ltd. -vs.-

Regional Provident Fund Commissioner & Ors. In that case also there

were certain contingencies and exceptional facts for which the Hon''ble Apex

Court quashed the proceeding. Another decision was cited which is reported

in 2002 (2) C.H.N. 408 ( Jasoda Glass & Silicate & Ors. -vs.- Regional

Provident Fund Commissioner & Ors .). While disposing of the said case,

Hon''ble Division Bench of this court has considered the decisions reported

in connection with Adoni Cotton Mills Ltd. -vs.- Regional Provident Fund Commissioner & Ors . and the decision reported in AIR 1987 SC 1738 in

Provident Fund Inspector, Faridabad -vs.- Jaipur Textile Faridabad . In

the said case, Hon''ble Apex Court held that since the arrear had been

deposited prior to the lodging of criminal case, the prosecution could

not be proceeded with. Not only that in the said judgment, Hon''ble Apex

Court specifically indicated that the same was not to be treated as a

precedent. Therefore, factual aspects of Adoni Cotton Mills Ltd., and

Jaipur Textile Faridabad are different in nature.

Learned Counsel appearing on behalf of the Provident Fund

Authority relied on the decision of Mr. Debidas Dutta -vs.- State of West

Bengal reported in 2006 (1) CLJ (Cal) 593. In the said judgment learned

Co-ordinate Bench held that it would not be proper to quash the proceeding

pending before the Court below and after considering the judgment reported

in Jasoda Glass & Silicate & Ors. -vs.- Regional Provident Fund

Commissioner & Ors . directed the trial court for taking into consideration

the claim that the entire payment has since been made while disposing of

the case finally. If after scrutiny, it appears to the court below that entire

payment has been made, then he can dispose of the case in the light of the

observation as made by the Division Bench in connection with Jasoda

Glass & Silicate & Ors. -vs.- Regional Provident Fund Commissioner &

Ors.

Learned Counsel for the opposite party relied on a decision

reported in Anjuman Tea Company Ltd. & Ors. -vs.- State of West

Bengal & Ors . reported in 2008 (1) CHN 1061. The factual aspect of that

case is almost similar to this case under adjudication. The learned Judge opined that "subsequent deposit, that welcome, as it is better late than

never, cannot and does not absolve the accused persons of the liability

of the criminal offence" and ultimately the learned Co-ordinate Judge was

not inclined to quash the criminal proceedings.

The learned Counsel appearing on behalf of the opposite party

cited the decisions reported in (2003) 3 CLT 470 (HC) in connection with

Susil Kumar Bagla -vs.- State and a decision reported in (2007) 2 CLT LT

259 (HC) in connection with M/s. Hotel Dock Palace Private Ltd & Anr. -

vs.- State of West Bengal & Anr. In the aforesaid cases both the learned

Judges dismissed the revisional application of the respective parties after

recording sound reasons. In the judgment reported in connection with M/s.

Hotel Dock Palace Private Ltd & Anr. -vs.- State of West Bengal & Anr.

the Co-ordinate Bench held "I am of the considered judgment that the

applications seeking for quashing of the proceedings under Section

482 of Cr.P.C. cannot be allowed. It can also be said that subsequent

payments are necessarily a circumstance that should not miss the

attention of the learned trial court, if and when the learned trial

court proceed to award punishment to the petitioners only when guilt

is established according to law and this circumstance is indeed, a

good circumstance and a mitigating circumstance to be taken

cognizance of only at the conclusion of the trial and only when the

offender is proved guilty."

Therefore, this Court had the opportunity to have considered two

judgments of this Court, which favours the offender of such type of cases.

One of those judgments was passed by a Division Bench in connection with Jasoda Glass & Silicate & Ors. -vs.- Regional Provident Fund

Commissioner & Ors . reported in 2002 (2) C.H.N. 407. Practically in that

case Hon''ble Division Bench exercised its criminal appellate writ

jurisdiction and had no scope to deal with quashing of proceeding in the

light of Section 482 of Cr.P.C. The Hon''ble Division Bench did not quash the

proceeding for obvious reasons and so they directed the learned trial court

to dispose of the said case on certain terms. Practically no ratio is laid down

in that judgment. So, in my considered view, that judgment is not at all

applicable in this case.

I have already discussed why the decision reported in M/s. AIR

Transport Corporation and Ors. -vs.- State of West Bengal & Anr .

reported in (2006) 1 C. Cr. L. R. (Cal) 616 cannot be applied in this case.

With utmost respect to the Hon''ble Judge, I may be permitted to say that in

the said judgment, the learned Co-ordinate Bench without discussing as to

how the factual situation fits in with the facts situation of the said decision,

on which reliance is sought to be placed came to a finding. It is perhaps

needless to say that it is to be remembered that the judicial utterances are

made in the fitting of the facts of a particular case. Therefore, none of the

authorities cited by the petitioners, makes it a law that subsequent payment

would liquidate the offence. While dealing with this case this Court is not

oblivious to the decision reported in AIR 1981 Supreme Court 81 in

connection with Harihar Prasad Dubey -vs.- Tulsi Das Mundhra & Ors .,

wherein relying on a decision of Madhya Pradesh High Court (in Akharbhai

Nazarali -vs.- Md. Hussain Bhoi ) Hon''ble Apex Court quoted "... the mere

fact of telling the employees that it is their contribution to the provident fund scheme and then making deduction or recovery and

retaining it, constitutes the offence of criminal breach of trust."

Echoing the ratio of the said judgment of that Madhya Pradesh High Court, I

may be permitted to reproduce the finding "this is so obvious that nothing

more need be said about it." In my view, the judgment of the Hon''ble Apex

Court squarely fits in this case. With due respect to the learned Co-ordinate

Bench, who passed the judgment in M/s. AIR Transport Corporation and

Ors. -vs.- State of West Bengal & Anr. I am of the view that it is not at all

a good law. Although he held "no doubt the allegation made in the

complaint cannot be white-washed by any subsequent payment."

Therefore, it seemed to me that the Hon''ble Judge was possibly confused as

to what is to be done. I may be permitted to say with great respect to the

said Co-ordinate Bench that the said judgment was passed either out of

ignorance or forgetfulness of some authority binding on the Court

concerned. The logic and reason given by the said Co-ordinate Bench is

demonstratably erroneous and has become per incurium. Having so

opined. I cannot commatose my judicial conscience. Sophocles said "Laws

can never be enforced unless fear supports them." If anyone ventures to defy

law, he must face the wrath of law.

Having regard to the facts and circumstances of the case, I have

no hesitation in my mind that there is no merit in this revisional application

and it is accordingly dismissed.

However, learned court shall proceed with the case in accordance

with law and at the end of trial, if he finds the accused petitioner is guilty, in that case subsequent payment (which has been claimed to have paid

already) be treated as a mitigating circumstance.

Let a copy of this judgment and the L.C.R. be sent to the learned

Court below for information and taking necessary action in accordance with

law.

Urgent certified photocopy of this Judgment and order, if applied

for, be supplied to the parties upon compliance with all requisite formalities.