{"id":124711,"date":"2003-04-01T00:00:00","date_gmt":"2003-03-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-rita-agencies-vs-the-enforcement-officer-on-1-april-2003"},"modified":"2014-07-19T09:04:54","modified_gmt":"2014-07-19T03:34:54","slug":"ms-rita-agencies-vs-the-enforcement-officer-on-1-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-rita-agencies-vs-the-enforcement-officer-on-1-april-2003","title":{"rendered":"M\/S.Rita Agencies vs The Enforcement Officer on 1 April, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
M\/S.Rita Agencies vs The Enforcement Officer on 1 April, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 01\/04\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE V.KANAGARAJ\n\nCRIMINAL ORIGINAL PETITION NO.2631 OF 2003.\n\n\nM\/s.Rita Agencies,\nChennai-24, rep. by its\nPartner\nRajan Syal.                                             ...     Petitioner\n\n-Vs-\n\n1. The Enforcement Officer,\n   Employees provident Fund\n   Organisation,\n   Chennai-14.\n\n2. The Deputy Commissioner of\n   Police,\n   Central Crime Branch,\n   Egmore,\n   Chennai-8.                                           ...     Respondents\n\n\n        Petition filed under Section  482  of  the  Criminal  Procedure  Code,\npraying for the relief as stated therein.\n\nFor petitioners:       Mr.M.Aravind Subramaniam\n\nFor respondents:  Mr.V.Vibishanan for R.1\n                Mr.O.Srinath,\n                Govt.  Advocate for R.2.\n\n:O R D E R\n<\/pre>\n
                This  petition  has  been filed praying to quash the complaint
\nNo.TN\/1 9783\/Ch.II\/Reg1\/2002 dated 10.01.2003 made by the first respondent  to
\nthe  second  respondent  herein  against  the  petitioner to prosecute for the
\noffence alleged under Sections 406  and  409  IPC  for  breach  of  trust  for
\nnon-payment of Employees Provident Fund, on the following grounds:-\n<\/p>\n
(a) that the impugned complaint is mala fide as it has deliberately suppressed
\nthe pendency of writ proceedings before this Court in W.M.  P.No.30981 of 2002
\nin  W.P.No.22422  of  2002  relating  to the same alleged demand; (b) that the
\nimpugned complaint is not maintainable as it lacks the  basic  ingredients  of
\nmens  rea  necessary  for  IPC  offences;  ( c) that the impugned complaint is
\nillegal as it suffers from the vice of the  Principles  of  “Double  Jeopardy”
\nwhen  the  special provision of the Employees Provident Fund and Miscellaneous
\nProvisions  Act,  1952  (hereinafter  referred  to  as  the   `Act’)make   the
\nnon-payment of  Provident  Fund  dues as an offence u\/s.14(2A) r\/w.  14AB, the
\npetitioner cannot be prosecuted for the same offence under the  provisions  of
\nthe  IPC;  (d)  that  the complaint is not maintainable as also for the reason
\nthat it has been instituted upon a complaint made by a person, who is not  the
\nproperly authorised person on this behalf under the Act; (e) that the impugned
\ncomplaint  ought  to  be  quashed  since the element of entrustment is totally
\nabsent; (f) that the other ingredient, viz., ” with a view to  cause  wrongful
\nloss  or  gain”  is  also not there and that the complaint has been filed only
\nafter the writ petition was admitted and notice has been received by the first
\nrespondent.\n<\/p>\n
                2.  On the contrary, the complaint  lodged  by  the  Employees
\nFund  Organisation  Regional  Office,  Tamil  Nadu  Region  before  the second
\nrespondent against the petitioner herein as the accused  would  highlight  the
\nfailure  to  pay  the  employees’  share  of contributions under the Employees
\nProvident Fund on the part of the petitioner agencies which were deducted from
\nthe salaries of their employees on ground that the petitioner agencies  is  an
\n`establishment’ covered under the provisions of the Act; that under Para 38(1)
\nof  the  Employees Provident Funds Scheme, 1952 framed under the said Act, the
\nemployer in relation to an establishment covered under the Act is required  to
\ndeduct  the  members’  share  of provident fund contribution from the wages of
\nmember employees and remit the amount into the State  Bank  of  India  to  the
\ncredit  of Employees Provident Fund Account within fifteen days from the close
\nof the month succeeding the month for which the contributions  were  deducted;
\nthat  Para 32(3) of the Employees Provident Funds Scheme, 1952 stipulates that
\nany sum deducted under the scheme by an employer from the wages of an employee
\nshall be deemed to have been entrusted to him for the purpose  of  paying  the
\ncontributions  into  the  Fund  in  respect  of which it was deducted; that by
\nCentral Act No.40 of 1973, which came into force with effects from  1.11.1973,
\nthe  following  explanation have been added to Section 405 of the Indian Penal
\nCode:\n<\/p>\n
“A person being an employer who deducted the Employees’ Contributions from the
\nwages payable  to  the  employee  for  credit  to  Employees’  Provident  Fund
\nestablished  by  law for the time being in force, shall be deemed to have been
\nentrusted with the amount of the contributions so deducted by him  and  if  he
\nmakes  default  in  the  payment  of  such  contributions  to the said fund in
\nviolation of the said law shall be deemed to have been  dishonestly  used  the
\namount of the said contribution in violation of law as aforesaid.”\n<\/p>\n
                3.   Extracting  the  above  explanation,  the complaint would
\nfurther state that the petitioner\/employer has deducted the members’ share  of
\nProvident  Fund  contributions from the wages of the employees’ from November,
\n1999 to June, 2002 to the tune of Rs.4,29,980\/=, but  these  amounts  deducted
\nfrom  the  employees’  have  not been remitted to the Employees Provident Fund
\naccounts  maintained  in   the   State   Bank   of   India   and   hence   the
\npetitioner\/accused  have  committed the offences punishable under Sections 406
\nand 409 of the IPC and hence would request the respondent to register the case
\nunder those provisions of law.\n<\/p>\n
                4.  During arguments, the learned counsel appearing on  behalf
\nof  the  petitioner  reiterating  the  same  points brought forth in the above
\ncriminal original petition would also cite a judgment of the  Honourable  Apex
\nCourt   delivered   in  MADHAVRAO  JIWAJI  RAO  SCINDI  AND  ANOTHER  ETC  vs.
\nSAMBHAJIRAO CHANDROJIRAO ANGRE AND OTHERS ETC.<\/a>  reported in AIR 19 88  SC  709
\nwherein it has been held:\n<\/p>\n
“The  legal  position  is  well-settled that when a prosecution at the initial
\nstage is asked to be quashed, the test to be applied by the  court  is  as  to
\nwhether  the  uncontroverted  allegations  as  made  prima facie establish the
\noffence.  It is also for the court to  take  into  consideration  any  special
\nfeatures which appear in a particular case to consider whether it is expedient
\nand in  the  interest of justice to permit a prosecution to continue.  This is
\nso on the basis that the court cannot be utilised for any oblique purpose  and
\nwhere  in the opinion of the court chances of an ultimate conviction are bleak
\nand, therefore, no useful purpose  is  likely  to  be  served  by  allowing  a
\ncriminal   prosecution   to   continue,   the  court  may  while  taking  into
\nconsideration the special facts of a  case  also  quash  the  proceeding  even
\nthough it may be at a preliminary stage.”\n<\/p>\n
                5.   Yet another judgment relied on by the learned counsel for
\nthe petitioner is one delivered by the Honourable Apex Court in ASHIM K.   ROY
\nvs.   BIPINBHAI VADILAL MEHTA AND OTHERS<\/a> reported in Volume 91-1998 Reports of
\nCompany Cases, Page 1, wherein the Honourable  Apex  Court,  adhering  to  the
\nfacts  of  the  case  handled by it, wherein the person who is alleged to have
\nreceived money on behalf of the company was not a Director  at  relevant  time
\nbut  became Director thereafter, held that it is not a case of criminal breach
\nof trust and no offence under Sections 120-B and 409 IPC was made out.   Based
\non  these  judgments,  the  learned counsel would seek to the relief extracted
\nsupra.\n<\/p>\n
                6.  On the part of the learned standing counsel for the  first
\nrespondent  and the learned Government Advocate on the criminal side appearing
\non behalf of the second respondent, they would lay emphasis on  the  complaint
\nlodged  by the first respondent before the second respondent since the same is
\nbearing specific allegations of collection of  the  Employees  Provident  Fund
\namounts  from  the employees by the petitioner\/employer making deductions from
\ntheir salaries to the tune of Rs.4,29,980\/= but defaulted in  the  payment  of
\nsuch contributions to the fund, in violation of relevant provisions of the Act
\nand  since  being  a  clear  cut  violation  of  law,  the complaint has to be
\nregistered both under Sections 406 and 409 IPC and has to be investigated into
\nand there is absolutely no legal impediment in the  same  and  would  pray  to
\ndismiss the above criminal original petition as without merit.\n<\/p>\n
                7.   In  consideration  of the facts pleaded, having regard to
\nthe materials placed on record and upon hearing the learned counsel for  both,
\nthe  main  grounds  of  pleadings  and  arguments put forth on the part of the
\npetitioner herein are dual in nature, the first one  being  `the  doctrine  of
\ndouble  jeopardy’  stating  that  when special provision is made under the Act
\nunder Sections 14(2A) and 14AB of the Act, the petitioner cannot be prosecuted
\nunder the provisions of the IPC.  The  second  one  is  that  the  element  of
\nentrustment  is  totally  absent in this case besides the ingredient `with the
\nview to cause wrongful loss or gain’ is absent in the complaint registered  by
\nthe  first  respondent  and that this complaint has been lodged only after the
\nwrit petition was admitted.\n<\/p>\n
                8.  So far as the first  point  raised  on  the  part  of  the
\npetitioner i.e.    `the  doctrine  of  double  jeopardy’  is  concerned, it is
\nembodied in Article 20(2) of the Constitution of India which  is  specific  to
\nthe  effect  that  `no  person  shall  be prosecuted and punished for the same
\noffence more than once’.  So far as the case in hand is concerned, it  is  the
\nargument of the petitioner that when there is an enabling Section and Sections
\n14(2A) and 14AB of the Act covering the nonpayment of the provident fund dues,
\nthe  first respondent has given the complaint making out a case under Sections
\n406 and 409 IPC also and therefore Article 20(2) of the Constitution of  India
\nis attracted.\n<\/p>\n
                9.   First of all, neither there are two proceedings initiated
\nnor is there any possibility for the petitioner to be prosecuted and  punished
\ntwice  for the same offence, which is prohibited by the Constitution of India.
\nBut, at the same time, there is absolutely no  impediment  for  any  provision
\nunder  the  Special  Act  to go along with the relevant Sections of the IPC if
\noffences are made out under the provisions of the IPC also and  therefore  the
\nact  of either independently owned provisions of the Act or along with the IPC
\nSections conjointly being prosecuted and punished, it cannot constitute either
\nprosecution or punishment twice for one and the same offence since  altogether
\nthey  would  only  make a single prosecution and punishment, in case the Court
\narrives at such conclusions.\n<\/p>\n
                10.  The learned counsel for the petitioner would loiter  much
\nabout  non-prosecution of the petitioner under Sections 14(2A) r\/w.14AB of the
\nAct.  It must be noted that the case is yet to be  registered  by  the  second
\nrespondent  who  will be at liberty to register the case under such provisions
\nof law as aforementioned and to investigate into the facts  and  circumstances
\nof  the  case  and  if  a case is made out, to lay the charge on such relevant
\nprovisions of law before the jurisdiction Court.  Even that is  not  final  so
\nfar as the charges are concerned since based on the materials collected on the
\npart  of  the prosecuting authorities, they would file the charge-sheet and it
\nis upto the jurisdiction Court to frame the charges ultimately  based  on  the
\nmaterials made available before it prior to commencing the trial and to attain
\nthis  stage,  a  very  long way is still to go and therefore it is a premature
\nstage at which all these arguments could be placed before  this  Court  for  a
\nquash  of  the  complaint  which has been lodged for further processing in the
\nmanner provided for by law.  Therefore, it is safe to conclude that  there  is
\nabsolutely no flaw in filing the complaint under the provisions of the IPC nor
\nthe  principles  of  `double jeopardy’ would creep in under such circumstances
\nand hence this argument put forth on the part of the petitioner becomes liable
\nonly to be rejected.\n<\/p>\n
                11.  Coming to the second point raised  on  the  part  of  the
\npetitioner  that the element of entrustment is totally absent in the complaint
\nand therefore no prosecution could be launched, it could very well be answered
\nby citing Explanations 1  and  2  to  Section  405  IPC  which  are  extracted
\nhereunder:\n<\/p>\n
“Explanation  1  –  A  person,  being  an  employer, who deducts the employees
\ncontribution from the wages payable to the employee for credit to a  Provident
\nFund  or  Family  Pension  Fund  established  by any law for the time being in
\nforce, shall be deemed to have been entrusted with the amount of  contribution
\nso deducted by him and if he makes default in the payment of such contribution
\nto  the  said  Fund  in  violation  of  the  said law, shall be deemed to have
\ndishonestly used, the amount of  the  said  contribution  in  violation  of  a
\ndirection of law as aforesaid.\n<\/p>\n
Explanation  2  –  A  person,  being  an  employer, who deducts the employees’
\ncontribution from the  wages  payable  to  the  employee  for  credit  to  the
\nEmployees’  State  Insurance Fund held and administered by the Employees State
\nInsurance Corporation established under the Employees’ State Insurance Act (34
\nof 1948), shall be deemed to have  been  entrusted  with  the  amount  of  the
\ncontribution so deducted by him and if he makes default in the payment of such
\ncontribution to the said Fund in violation of the said Act, shall be deemed to
\nhave  dishonestly  used  the amount of the said contribution in violation of a
\ndirection of law as aforesaid.”\n<\/p>\n
No further explanation need be necessary  since  the  above  explanations  are
\nself-explanatory for the element of entrustment that is pleaded on the part of
\nthe petitioner.\n<\/p>\n
                12.   The  other  point  conjoin herein that the ingredient of
\nwrongful loss or wrongful gain is  not  there,  cannot  be  answered  at  this
\nprimitive  stage since on the very face of the complaint, it is vivid that the
\nwrongful loss has been caused  to  the  first  respondent  to  the  extent  of
\nRs.4,29,980\/=  and  it is automatic that the petitioners are construed to have
\nobtained the wrongful gains by such of their acts.\n<\/p>\n
                13.  The petitioner would also point out that a writ  petition
\nhas  been  admitted  and  notice has been received by the first respondent and
\ntherefore the complaint cannot be lodged  during  the  pendency  of  the  writ
\npetition and  hence  would  plead  to quash the same.  Any writ petition filed
\nbefore this Court as it is said to have been done by the petitioners,  cannot,
\nin  any  manner,  by  the  reason  of the same being filed and admitted, would
\nobstruct any criminal complaint to be lodged in such matters as  it  has  been
\nresorted  to  in the case in hand, unless, there is any specific order against
\neither filing of such complaint or registering a  case  or  investigating  the
\nsame  and  therefore taking on file a writ petition said to have been filed by
\nthe petitioner is not an impediment for proceeding with the  complaint  lodged
\nby the first respondent and this argument also does not hold water and becomes
\nliable to be rejected.\n<\/p>\n
                14.   Regarding the judgments cited on the part of the learned
\ncounsel for the petitioner, the first judgment is general in nature  and  does
\nnot,  in  any  manner,  deal with the facts of the case in hand and the second
\njudgment  has  also  been  delivered  completely  under  different  facts  and
\ncircumstances and therefore the principles laid down in those judgments by the
\nHonourable Apex Court cannot be applied to the facts of the case in hand.\n<\/p>\n
                15.  On a overall consideration of the facts and circumstances
\nencircling the whole case as put up on the part of the petitioner in the above
\ncriminal original petition, there is no merit in the same for the prayer to be
\nanswered  in  the  affirmative and the same become only liable to be dismissed
\nand hence the following order:\n<\/p>\n
                In result, the above criminal original petition does not merit
\nacceptance and it becomes  liable  only  to  be  dismissed  and  the  same  is
\ndismissed accordingly.\n<\/p>\n
Index:  Yes
\nInternet:  Yes
\nRao<\/p>\n
To\n<\/p>\n
1.  The Enforcement Officer,
\nEmployees provident Fund
\nOrganisation,
\nChennai-14.\n<\/p>\n
2.  The Deputy Commissioner of
\nPolice,
\nCentral Crime Branch,
\nEgmore,
\nChennai-8.\n<\/p>\n
3.  The Public Prosecutor,
\nHigh Court, Madras.\n<\/p>\n
4.  Mr.O.Srinath,
\nGovernment Advocate (crl.side),
\nHigh Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M\/S.Rita Agencies vs The Enforcement Officer on 1 April, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01\/04\/2003 CORAM THE HONOURABLE MR.JUSTICE V.KANAGARAJ CRIMINAL ORIGINAL PETITION NO.2631 OF 2003. M\/s.Rita Agencies, Chennai-24, rep. by its Partner Rajan Syal. … Petitioner -Vs- 1. The Enforcement Officer, Employees provident Fund Organisation, Chennai-14. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-124711","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM\/S.Rita Agencies vs The Enforcement Officer on 1 April, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-rita-agencies-vs-the-enforcement-officer-on-1-april-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S.Rita Agencies vs The Enforcement Officer on 1 April, 2003 - 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