ORDER
1. The petitioner is a director of United Rubber Works (Private Limited. The prosecution concerned is one under Section 14(2) of the Employees’ Provident Funds Act, 1952 (Act XIX of 1952) read with Clauses (a), (c) and (e) of paragraph 76 of the Scheme framed under the Act Upon the applicant being summoned, she applied for dispensation of her personal attendance in Court under Section 205 of the Code of Criminal Procedure. This application was refused. The applicant then moved the Additional Sessions Judge, 5th Court Alipore but her prayer was again refused. Thereafter the present Rule was issued.
2. Upon due notice to the State Mr. Dutt has contended that the present prosecution as against the petitioner should be quashed on the ground that the petition of complaint did not disclose any offence so far as the petitioner was concerned. In support of this contention Mr. Dutt has not only taken me through the petition of complaint but has referred to Section 14A of the Employees’ Provident Funds Act which is in these terms:
“14A. Offences by companies.–(1) If the person committing an offence under this Act or the Scheme made thereunder is a company, every person, who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall he liable to be proceeded against and punished accordingly:
Provided that nothing contained in this subsection shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
2. Notwithstanding anything contained in Sub-section (1), where an offence under this Act or the Scheme thereunder has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to, any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.–For the purposes of this section,–
(a) ‘company’ means any body corporate and includes a firm and other association of individuals; and,
(b) ‘director’ in relation to a firm, means a partner in the firm’.”
3. Mr. J.M. Banerjea appearing for the State has referred me to paragraph 2 of the petition of complaint and has contended that the allegation in that paragraph disclosed the petitioner’s liability under the Act. In my view, Sub-section (1) of Section 14A makes it quite clear that it is incumbent upon the prosecution to prove that the director concerned was in charge of, and was responsible to, the company for the conduct of the business of the company. It is only when that initial onus is discharged by the Prosecution that there is any onus upon the person concerned to prove that the offence wag committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. There is nothing in the petition of complaint to suggest that the petitioner was in charge of and was responsible to the company for the conduct of the business of the company. There is therefore no case against the petitioner to answer.
4. I would accordingly quash the prosecution as against the petitioner and make the Rule absolute.
