IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 209 of 2004(A)
1. M/S.RAM BAHADUR THAKUR LIMITED,
... Petitioner
2. C.B.SHARMA, CHAIRMAN, M/S.RAM BAHADUR
3. MANOJ MOHAN SHARMA, DIRECTOR,
4. S.M.SHARMA, DIRECTOR,
Vs
1. J.THULASEEDHARAN PILLAI, ENFORCEMENT
... Respondent
2. STATE OF KERALA REP. BY THE
For Petitioner :SRI.JOSEPH KODIANTHARA
For Respondent :SRI.S.GOPAKUMARAN NAIR, SC, P.F.
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :22/12/2009
O R D E R
P.Q. BARKATH ALI, J.
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CRL. R.P. 209 of 2004
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Dated: DECEMBER 22, 2009
ORDER
The revision petitioners are accused Nos.1 to 4 in S.T.Case
No.717/1996 of Judicial First Class Magistrate Court, Peerumedu.
They, along with accused No.8, are convicted under sec.14(2A) read
with sec.6A(2) of the Employees Provident Funds and Miscellaneous
Provisions Act, 1952 (for short, the EPF Act) read with paragraphs 9
and 10 of Employees Family Pension Scheme, 1971. They, along with
accused No.8, were sentenced to undergo rigorous imprisonment for
three months and to pay a fine of Rs.5000/- each under sec.14(2A) of
the EPF Act, in default to undergo simple imprisonment for one month.
Proceedings against accused Nos.5 to 7 were dropped by the trial
court as per order in CMP 5227/1999 dated 19.2.1999. On appeal
by accused Nos.1 to 4 as Crl.A.17/2001 of Addl.District and Sessions
Court, Thodupuzha, the lower appellate court altered the charge into
sec.41(d) of Family Pension Scheme and confirmed the substantive
sentence, but reduced the fine to Rs.4000/-. The appeal by the 8th
accused as Crl.A.11/2001 was allowed by the lower appellate court
and he was found not guilty and acquitted of all the charges levelled
against him. Accused Nos.1 to 4 have now come up in revision
challenging their conviction and sentence.
Crl.R.P.209/04 2
2. The 1st accused/1st revision petitioner is a limited company
having 9 estates in Idukki District and engaged in agricultural
activities. The 2nd accused is the Chairman and accused Nos.3 to 7
are the Directors of the company. The 8th accused is the Manager of
the estates. The 1st respondent, the Enforcement Officer, Employees
Provident Fund in Idukki District filed the complaint before the trial
court alleging that the accused persons, in violation of the mandatory
provisions of the EPF Scheme of 1971 failed to remit the Family
Pension Fund contribution of the company’s employees together with
the employer’s share of contribution and thereby committed the
offence punishable under paragraph 76(d) of the EPF Scheme, 1952
read with sec.14(1A), 14(2) and 14(A) of Provident Funds Scheme. It
is alleged in the complaint that for the month of June 1995, the 1st
accused company failed to remit an amount of Rs.29286/- towards
the Family Pension Fund Contribution which include the employees’
share and employer’s share in respect of Munjamullay Estate within
15 days from the close of the month, and that accused Nos.2 to 8 are
the persons in charge and responsible for the conduct of the business
of the establishment of the 1st accused company and hence they are
liable for the non-payment of the dues. The complaint was filed after
getting the required sanction for prosecution from the competent
Crl.R.P.209/04 3
authority, who in this case is the Regional Provident Fund
Commissioner, Kerala.
3. The revision petitioners on their appearance before the trial
court pleaded not guilty to the charge mentioned above. The
complainant officer was examined as PW.1 and Exts.P1, P2, P3 series
and P4 were marked on his side. When questioned under sec.313 of
Cr.P.C. the accused persons denied the allegations. On the side of
the accused persons Dws.1 to 5 were examined and Exts.D1 to D13
were marked.
4. The trial court on an appreciation of evidence found the
revision petitioners guilty of the offence alleged against them,
convicted them and sentenced them as aforesaid. On appeal by
Accused Nos.1 to 4, the lower appellate court altered the charge to
sec.41(d) of Family Pension Scheme and confirmed their substantive
sentence, but reduced the fine to Rs.4000/-. Accused Nos.1 to 4 have
now come up in revision challenging their conviction and sentence.
5. Heard the counsel for the revision petitioners and the counsel
for the revision 1st respondent and also the Public Prosecutor.
6. The following points arise for consideration:-
I. Whether the conviction of the revision petitioners under
sec.41(d) of the Family Pension Scheme by the lower
appellate court can be sustained?
Crl.R.P.209/04 4
II. Whether the sentence imposed is excessive or unduly
harsh?
Point No.I
7. When the revision petition came up for hearing counsel for
the revision petitioners submitted that the entire dues from the
company has already been paid and produced the information obtained
under the Right to Information Act to the effect that the entire dues
upto 1996-97 outstanding with the 1st accused company has already
been paid, which is also not disputed by the other side. Counsel for
the 1st respondent argued that the respondent should be permitted to
recover any other dues which are not paid by the 1st accused company.
Therefore I confirm the conviction of the revision petitioners under
sec.41(d) of the Employees Family Pension Scheme.
Point No.II
8. Taking into consideration the fact that the revision petitioners
have paid the entire dues upto 1996-97, I feel that the sentence
imposed against the revision petitioners can be reduced to the fine
amount only. In the circumstances I feel that the fine of Rs.4000/-
imposed by the lower appellate court would meet the ends of justice.
In the result the revision petition is allowed in part. The
conviction of the revision petitioners under sec.41(d) of the Employees
Family Pension Scheme is confirmed. They are sentenced to pay a
Crl.R.P.209/04 5
fine of Rs.4000/- each, in default revision petitioners 2 to 4 to
undergo simple imprisonment for three months. One month time is
granted for payment of fine. The amount, if any, deposited by the
accused persons before the trial court shall be adjusted towards the
fine imposed.
P.Q. BARKATH ALI, JUDGE
CRL.M.A. 782 of 2004
Dismissed.
22.12.2009 P.Q. BARKATH ALI, JUDGE mt/-