JUDGMENT
D.P. Sircar, J.
1. All these cases under Section 482 Cr. P.C. are challenging the orders passed by the learned Judicial Magistrate, I Court, Barrackpore, North 24-Parganas over the same matter involving the same person and over the same incident and as such all those cases, filed challenging the respective order in different complaint cases over the self-same issue are taken up together and covered by this single judgment.
2. The petitioner’s case is that at one point of time he was the Director of Kankinara Company Limited, the accused No. 1 in all the complaint cases before the learned Magistrate over the same issue namely complaint Case No. C/302/90, complaint Case No. C/303/90, complaint Case No. C/304/90 and 3 complaint Case No. C/305/90 and complaint Case No. C/308/90. The petitioner resigned from the same Company in 1989. The O.P. a Provident Fund Inspector lodged the aforesaid complaint against the Company as above implicating also the petitioner among others alleging commission of offence under Section 14(2-A) read with Section 14-A(1) and 14-A(2) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. The petitioner, one of the accused persons appeared and was granted bail and also exemption was accorded to him from personal appearance under Section 205, Cr. P.C. On the date fixed for submission of the service return an appearance of the petitioner although he was represented by the learned Advocate as per permission accorded. The learned Magistrate issued warrant of arrest against the accused-company in the name of the present petitioner, although the learned Advocate representing the petitioner submitted to the Court that the petitioner was on Court bail authorised to be represented by the Advocate and the petitioner was not authorised by the Company to represent it and as such for any lapse on the part of the Company the petitioner could not be held responsible. The learned Magistrate, however, mechanically directed the petitioner to represent the Company although at no point of time the Company appointed the petitioner to represent it for the purpose of enquiry or trial. The act of the learned Magistrate about issuing warrant was, therefore, illegal. The petitioner prays for quashing that order as impugned in these cases.
3. The O.P. appears through the learned Advocate. Heard learned Advocates of both the parties.
The learned Advocate for the petitioner argues that the petitioner was never authorised to represent the Company and as such he cannot be held responsible for non-appearance of the Company on the relevant date, as Company should be represented by the authorised person. Although the petitioner was Director of the accused-company on certain point of time, he resigned from the office in 1989 and in respect of the complaint in 1990 he cannot have any responsibility. But even then he appeared and although he himself was permitted to be represented by the learned Advocate, as the Company failed to take steps, the petitioner was held responsible without rhyme and reason and for that warrant was issued against the petitioner, instead the person who was authorised to represent the Company. The learned Advocate further argues that when the lapse was on the part of the Company it was illegal on the part of the learned magistrate to try to enforce its attendance by issuing warrant against any Director or Principal Officer as the only remedy in such a case is of imposing monetary penalty. The learned Advocate relies on a ruling per the Hon’ble Mr. Justice R. BHATTACHARYA in C.R. No. 2570 of 1995.
4. The O.P. submits that the petitioner has not filed any document to show that he never resigned from the post of the Director of the Company and admittedly he was a Director at certain time and hence unless it is found from the document filed by the petitioner that in the relevant time he was not the Director of the Company, he cannot be absolved of the allegation in the case. There is no law calling upon the Court to impose monetary penalty alone forbidding any case of lapse of the Company in appearance. The petitioner being the Director of the Company, as a principal executive he was responsible for appearance of the Company. Documents to show that some other person was the principal executive or Principal Officer in the relevant time was not produced. This point about the responsibility of the petitioner may be agitated before the learned Trial Court. For reasons best known to him the petitioner have screened the document from which it could be found as to who was authorised to represent the Company and for that the learned Magistrate rightly proceeded against the principal executive (that is the petitioner) for appearance of the Company. He submits that these petitions should be dismissed and the petitioner should be directed to appear before the learned Trial Court and to face trial as per law.
5. I have considered the argument of the learned Advocates of both the parties and perused the rulings cited by the learned Advocate for the petitioner. The petitioner in his personal capacity appeared before the learned Magistrate for taking trial and was allowed to be represented under Section 205 Cr. P.C. but as the Company did not comply with the summons the learned Magistrate issued warrant of arrest against the petitioner holding that the petitioner represented the Company. The learned Advocate for the petitioner submits that this decision of the learned Magistrate was illegal and unjustified as the petitioner was never authorised by the Company to appear for it and the petitioner was not the Director of the Company in the relevant time although erstwhile he was one of the Directors. The cardinal principle of law is that he who alleges the fact has the onus to establish it. When the petitioner claims that erstwhile he was the Director of the Company but he resigned from the office in 1989 and was no longer related with the Company in 1990, that is when these cases were filed and also that the Company must have been consequently represented by some other person, the onus is definitely upon the petitioner to prove these two facts, namely, that – (i) although he was a Director at one time before 1989, he resigned from the office in 1989 and in the relevant time he had no concern with the Company, and (ii) that the Company could be represented by him in this circumstance or that the Company authorised somebody else to represent it. I am afraid the petitioner has failed hopelessly to discharge either of these responsibilities on him. I am sure that if the petitioner actually resigned from the office of the Director in 1989 there must have been some documents to produce it in appropriate offices. The petitioner did neither call for those documents nor produce any such at any time. This matter again, may be decided by the learned Trial Court, and, it cannot be held, without sufficient materials, by this Court that this petitioner actually resigned in 1989 from the office he held in the Company and that since 1990 he had no concern with this Company. Nothing has also been shown to establish that the Company authorised somebody else to represent it. From the orders dated July 31, 1992 of the learned Magistrate about the correctness of which there is a presumption under Section 114(g) of the Evidence Act, as were passed in Case No. C/305/90 and Case No. C/308/90 that the learned Magistrate issued summons under Section 63 of the Cr. P.C. upon the Company addressing it to the Principal Officer and the petitioner himself received those summons on behalf of the Company on the relevant dates; but he did not appear on behalf of the Company or take steps on behalf of the Company to cause its appearance through any other authorised person. Under these circumstances, the petitioner having received the summons on the relevant dates as it appears from the orders of the learned Magistrate, without any sufficient material to thwart the presumption of correctness of this Order, It must be presumed that on the relevant dates also this petitioner was the Director of the Company, received the summons on dates on behalf of the Company, as its principal executive, but the Company did not appear in obedience to the process issued by the learned Magistrate. Consequently I reject the contentions of the petitioner on those points. As the petitioner accepted the processes on behalf of the Company, there cannot reasonably be any scope for presumption that in the relevant time the petitioner was not the Director of the Company. We have no material to hold at this stage that some other person was authorised to appear.
6. As is found in Section 2(e)(i)(ii) read with Sub-section (k) of the same section, it is evident that the Director of the Company must be held to be the employer as defined in those provisions and responsible for the work of somebody else used to run the day to day administration of the Company and was responsible on its behalf. From the fact of the receipt of the summons by the present petitioner it must be held, prima facie, that he was the person in charge of day to day administration and as such the order passed by the learned Magistrate against him does not appear to be illegal or unjustified in any way. Of course, there is scope for decision by the Trial Court otherwise if the present petitioner establishes with cogent evidence that at the relevant time he was not the Director or that some other person was in charge of administration of the Company in the relevant time or was authorised to represent it. But at present there is no material to accept this contention of the petitioner.
7. The learned advocate for the petitioner submits that although this petitioner himself appeared before the learned Magistrate and obtained exemption from appearance under Section 205 Cr. P.C. it was quite illegal on the part of the learned Magistrate to issue warrant of arrest against him and that, in that case, the negligence being on the part of the Company, the only lawful procedure was to issue process of Dw/attachment against the Company without dragging the petitioner to the Court. In support of his contention he relies on two rulings, one in C.R. No. 2570 of 1995 per the Hon’ble Mr. Justice R. BHATTACHARYYA (unreported) and the other reported in (1) 1994 C.Cr. LR (Cal) 114 per His Lordship A.K. DUTTA, J. I have considered the rulings with due respect. In the ruling in Criminal Revision No. 2570 of 1995, the Hon’ble Mr. Justice R. BHATTACHARYYA allowed petitioner, overlooking the exemption and the bail allowed, for not representing the Company. In that case His Lordship came to that decision in the term that as the petitioner was allowed exemption previously but was directed to appear in response to the warrant of arrest overlooking the order of exemption and the order was conspicuously silent as to whether the bail granted was recalled or cancelled in the event he does not appear before the Court the order was illegal. It appears that this order was directed against the petitioner in his individual capacity for his failure to represent the Company. It was observed by the Hon’ble Judge that at the most in the state of circumstances, the learned Magistrate could issue distress warrant or order of attachment against the Company, which is a Corporate Body. But in the same breach His Lordship observed that the modes the Court would avail of were not for determination of the High Court as to whether the Court on the said materials-on-record would issue distress warrant or order of attachment and that it fell much behind the premises of the said decision. Under this circumstance, the decision of the Hon’ble Judge that the Magistrate issued the warrant instead of distress warrant was not based on sufficient legal provision but was held as on obiter dictum and cannot be held to be a
pronouncement of legal principle. No provision of law or case law has been cited in support of such contention as to why in such a case of total absence of the Company in disobedience of such summons, warrant of arrest cannot be issued against the principal executive who was representing the Company and found to be responsible for administration and that under what provision of law distress warrant or warrant of attachment was the only procedure. The learned Advocate for the petitioner has also failed to produce any such law in support of his contention. Consequently this ruling has to be respectfully distinguished as not based on any legal provision and the obiter dictum cannot have the binding effect as an enunciation of legal principle. Again, according to this ruling also it must be held that it is for the learned Magistrate to decide what process will be issued to cause appearance of the accused. As the learned Advocate for the petitioner fails to refer to any legal provision forbidding the steps taken by the Trying Magistrate, this Court cannot interfere and quash the order and the steps taken by him.
8. The other ruling per Hon’ble Mr. Justice A.K. DUTTA as reported in 1994 C. Cr. LR (Cal) 114 the fact of the case was quite otherwise. In that case in absence of the Company the learned Judge revoked the order allowing the petitioner to be represented. In that case the order was passed revoking the exemption order in favour of the petitioner in his individual capacity. In this case the facts and circumstances are quite otherwise. The petitioner liable for representing the Company, did not cause its production and for that the exemption order granted to the petitioner was not revoked, but for his failure to cause appearance of the Company the Principal Officer was held up for his vicarious liability. This ruling also is respectfully distinguished on the question of facts and circumstances.
9. As laid down in Section 14-A(1) and 14-A(2) of Employees’ Provident Funds and Miscellaneous Provisions Act in case of offence by any Company every person who at the time of the offence was in-charge of or was responsible to the Company for the conduct of the business of the Company, as well as the Company itself, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. This offence if committed by the Company must have been committed with the consent or connivance of or is attributable to the neglect on the part of any Director etc. of the Company and unless it is provided by consideration of fact that the present petitioner was not. So, he cannot prima facie absolved from the responsibility of the offence committed by the Company. A company, being a Corporate Body acts through its principal executive. Such a person cannot absolve himself and wash his hands clean by claiming that for such criminal offences Company alone should be held up and not the principal executive.
10. In fine I must hold this revisional applications must fair.
11. All these revisional applications are dismissed on contest. The stay order as passed in these cases are hereby vacated. The learned Lower Court is directed to proceed with the cases as per law at the earliest.
12. No observation made in this judgment as to the merit of the complaint cases shall be binding upon the Trial Court and the Trial Court shall be free to come to its own decision considering the facts and circumstances placed before it, including the point of representation of the Company and liability of the present petitioner about the alleged offences.
Revisions dismissed.