ORDER
S.B. Majage, J.
1. Since in these petitions filed by the petitioners accused, facts involved, grounds urged, relief claimed and parties are similar they are taken together.
2. The case of respondent-complainant in all these petitions is : The first petitioner-first accused namely, M/s Aravinda Parimala Works, at Mysore is an establishment within the meaning of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the ‘Act’) and one H.S. Rao (shown as representing the first petitioner in these petitions now), is the Managing Partner whereas, other persons are its partners. All the said persons are shown in Form 5-A as persons in-charge of and responsible to the first petitioner for the conduct of its business under the Employees’ Deposit Linked Insurance Scheme. But, in spite of request, insurance/provident fund contributions due in respect of the employees of the first petitioner and required to be paid for different period (s) within stipulated time under the Employees’ Deposit Linked Insurance Scheme, were not paid as shown in complaints and thereby committed offence under that Scheme read with the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. So, complaints were filed on 27-10-1999 by the respondent-complainant. After cognizance was taken, process came to be issued against them in all the complaints. However, Contributions due were paid in the year 2000 or 2001. So, challenging the issue of process against them, petitioners are before this Court.
3. After notice to the respondent-complainant, heard both sides. It was vehemently argued for the petitioners-accused that simply because in Form 5-A, they (all partners) have been shown as the persons in charge and responsible for conducting business of the establishment, they cannot be held responsible without establishing that they are in- charge and responsible personally in the matter of conducting the business of the Company, as held by this Court in the case of M/s. Anantharamaiah Woollen Factory v. The State (1981 Lab IC 538), when they were not responsible for the violation as they were not in-charge of and conducting business of the establishment and, that as the Contributions due to be paid have been already remitted, it is not necessary to proceed further against them particularly when the first petitioner-Company is running under loss and that as the non-payment of Contributions in time was due to severe financial problem faced by the establishment but remitted already in the year 2000 or 2001, the proceedings initiated against them by the respondent-complainant require to be quashed.
On the other hand, the learned counsel for the respondent complainant supported the initiation of proceedings as, according to her, the proceedings initiated against the petitioners are in accordance with law and do not suffer from any infirmity and hence, they cannot be quashed. Perused the records carefully.
4. Admitted facts are that the first petitioner is an establishment covered under the Act and, that H.S. Rao is the Managing Partner whereas, others are partners of the first petitioner and, that Contributions to be paid by the establishment first petitioner, as shown in the complaints, were not paid within the stipulated period and paid after complaints were filed and about 1 1/2 years after due dates. Keeping in mind these admitted facts, let. me now consider the points raised.
5. It is true that in the case of Katta Sujatha (Smt.) v. Fertilizers & Chemicals Travancore Ltd. (ILR 2003 Kar 4856) (SC), the Supreme Court has held that the term “person in charge” means that the person should be in overall control of the day today business of the firm and if the partner is not in-charge of or, not responsible for the firm to the conduct of its business and if there is no evidence that offence was committed with the consent or connivance of such partner or was attributable to any neglect on his part, then such partners cannot be prosecuted and proceedings initiated against such partners require to be quashed. The same could be said for the Directors of a Company as well.
6. However, it may be noted that in the said case before the Supreme Court, there was no averment in the complaint that the petitioner therein was in-charge of and was responsible for the conduct of the business of the firm or, that the offence was committed with her consent or connivance of, or was attributable to any neglect on her part. But, in the case on hand, not only there is averment in the complaint that all the said persons are in-charge of and responsible to the establishment for the conduct of its business, there is a record/Form 5-A, which shows them as the persons in-charge of and responsible for the conduct of the business of the first accused. It is an undisputed document of the first accused showing them as persons in-charge of and responsible for the conduct of the business of the first accused establishment. That apart, what is found in Form No. 5A referred to above, is stated in the petitions filed before this Court. So, it cannot be said now that they were/ are not in charge of or and responsible for, the conduct of the business of the first accused.
7. Of course, the word “employer” as defined under the Act was relied on for the petitioners besides a decision of this Court in the case of M/s Anantharamaiah Woollen Factory (supra). But, in the said case of Anantharamaiah (supra). Form-5 referred Anantharamaiah as the Manager and the person in the ultimate control of the affairs of the factory and establishment and not the accused Nos. 3 to 5 therein, which is not so in the case on hand.
8. Further, in the case of Ananatharamaiah, without any supporting material, the allegation was that accused Nos. 3 to 5 therein had consented or connived in the commission of offence/offences alleged whereas, in the case on hand, the allegation is not that the petitioners 2 to 5 are responsible on account of their consent or connivance or negligence but, the allegation is that, they are the persons in charge of and responsible for the conduct of the business of the first accused establishment. Not only that, said averment is supported by the contents of Form 5-A filled up by the first accused establishment itself. Hence, said decision has no application to the facts of the case and neither the definition of the word “employer” nor the said decision comes to the aid of the petitioners.
9. That apart, in the case of Srikanta Datta Narasimharaja Wodiyar v. Enforcement Officer, Mysore relied on for the respondent complainant, the Supreme Court has observed as under :
“………………. the declaration therefore in Form 5A including appellant as one of the persons in charge and responsible for affairs of the company was in accordance with law and therefore his prosecution for violation of the Scheme does not suffer from any error of jurisdiction or law.”
So and in view of Form 5A produced in the case and not disputed by the petitioners accused, the petitioners 2 to 5 could not be said to have been prosecuted wrongly.
10. Of course, in spite of Form 5-A, during trial, the petitioners 2 to 5 can show that they were actually not in-charge of and responsible for the conduct of the business of the first accused during the relevant period. But, that cannot be a ground to take note at this stage so as to quash the proceedings when prima facie they are liable to be prosecuted for the contravention alleged because, admittedly, the Contributions due were paid in the year 2000 or 2001, that too, after the complaints were filed in the year 1999.
11. That is why the petitioners rely on the payments made subsequently i.e. after complaints were filed since, according to them, in view of the decision of the Supreme Court in the case of Adoni Cotton Mills Limited v. Regional Provident Fund Commissioner (1996(2) LLJ 739), the proceedings cannot continue and require to be quashed in such cases. So also, relied on a decision of Calcutta High Court in the case of Jasoda Glass and Silicate v. Regional Provident Fund Commissioner (2002(3) LLJ 1047).
12. It is true that the Contributions due were paid in the year 2000 or 2001 after the complaints were filed on 27-10-1999. So, let me consider, whether the said decisions help the petitioners or not.
13. In the case of Adoni Cotton Mills (supra), the Supreme Court has quashed the proceedings initiated in pursuance of the show cause notices issued and not the prosecution initiated against the accused, that too, in the facts and circumstances of the case, as is clear from the following observations made in para No. 3 of that judgment:
“3. We do not think it is necessary for us to go into the details of the High Court’s judgment or the contentions raised on behalf of the appellants. The prosecution was initiated in respect of certain offences alleged to have been committed in 1976, about 15 years back. We are informed that two of the appellants have subsequently died. The offence alleged is the failure to deposit the amounts under the enactments for a short period of four months immediately following the discharge of the appellant – company from the receivership. During the pendency of these appeals, this Court granted stay of further proceedings by way of prosecution on condition that the appellants deposited an amount of Rs. 40,000/- and furnished a bank guarantee for a sum of Rs. 60,000/- to the satisfaction of the Registrar of the High Court within a period of six weeks. We are informed that the sum of Rs. 40,000/- has been deposited and that the bank guarantee for Rs. 60,000/- has also been furnished. We are also informed that the amount in respect of which there was default would also be in the region of about Rs. 90,000/-. Taking into account all these circumstances, we are of the opinion that this is a case in which the proceedings by way of prosecution need not be pursued provided the amounts deposited in Court and secured by the bank guarantee are paid over to the Regional Provident Fund Commissioner for credit to the appropriate Accounts…………..” (Underline emphasized)
14. Thus, it is clear that in the case of Adoni Cotton Mills Ltd. (supra), the Supreme Court has not at all considered any legal aspect nor declared any law on any point and as such, the said decision does not come to the aid of the petitioners. Further, writ, proceedings therein were initiated when show cause notices issued and before prosecution was launched. It is not so in the matters on hand.
15. Of course, based on the decision in the case of Adoni Cotton Mills (supra), proceedings and prosecution initiated on the complaint filed were quashed by Calcutta High Court in the case before it but, without noticing that no law has been declared in the case of Adoni Cotton Mills (supra). So, mere fact of payment of contributions after about 1 1/2 years cannot be taken to hold that the proceedings initiated for failure to pay the contributions in time require to be quashed.
16. Reliance was also placed on a decision of the Madras High Court in the case of R. Dhandayuthapani v. C. R. Kaleel (2003(103) FJR 856). But therein, the proceedings had been quashed on the ground of limitation and on facts, when found that the petitioner-accused therein an Engineer by profession, having his office at Erode, could not have been in overall charge of accused No. 1- Company situated at Pethappampatti and had ceased to be a Director of the Company as early as on 27-21997 according to Form No. 32 issued by the Registrar of Companies.
17. However, it is not the case of the petitioners in the present matters that petitioners 2 to 5 – accused 2 to 5 or any of them had ceased to be or was not a partner at any point of time either on the due date of the Contributions alleged or subsequent thereto till complaints were filed or, that they or any of them reside at a place far away from the place, where accused No. 1 – establishment is situated and as such they could not be held to be in overall charge of accused No. 1 – establishment.
18. Lastly, a faint attempt was made for the petitioners-accused and submitted that the complaints filed were barred by limitation. However, later rightly, did not press said point into service, probably in the light of the settled law namely, non-payment of contributions is a continuing offence. In this connection, reference can also be had to a decision of the Supreme Court in the case of Bhagirath Kanoria v. State of M. P., . Further, in the present matters, payment of the Contributions fallen in arrears had been made in the year 2000 or 2001 i.e., after complaints were filed in the year 1999 and as such, it cannot be said that the complaints filed were barred by time. Thus, none of the grounds urged helps the petitioners in any way nor make out a case requiring this Court to invoke inherent powers under Section 482 of Cr. P. C. No other point has been urged nor raised for consideration.
In the result, the petitions are rejected. However, while imposing punishment, the learned Magistrate to take note of the payments made, though late.
Send back the L.C. Rs. immediately, but latest within a month, if received, and report compliance to the Registrar (Judicial).