Calcutta High Court
Dhanraj Bagaria vs S.C. Chatterjee And Ors. on 18 October, 1996
Equivalent citations: 1997CRILJ823
ORDER Asish Baran Mukherjee, J.
1. 9 revisional applications mentioned above were heard together in analogous (sic) since the parties and the points involved are exactly the same.
2. Nine criminal proceedings being 125-C/85, 126-C/85, 128-C/86, 132-C/86, 130-C/86, 186-C/86, 133-C/86, 185-C/86 and 13I-C/86 were started against the petitioner and M/s. Shree' Ambica Jute Mills Ltd., for alleged offences under Section 14(2-A) and read with Section 14-A(1) of the Employees' Provident Funds and Miscellaneous Provisions Act of 1952 for alleged omission on the part of the Company to deposit the employers share of Provident Fund contribution for certain periods. In obedience to summons the accused persons entered appearance and were released on bail. The petitioner sought permission to represent the Company by resorting to an application under Section 305 Cr.P.C. which was allowed by the Ld. Magistrate. During pendency of the criminal cases Company went into liquidation by an order of this Court and liquidator was appointed and took charge of the entire affairs of the Company and as such the petitioner and the other Directors became functus officio. Subsequently, the petitioner filed an application in the Trial Court praying for an order of releasing him from representing the Company any further but the Trial Court by orders of different dates passed in individual criminal proceedings rejected the said prayer on the ground that the petitioner in some other criminal proceedings actually represented the Company even after the said Company went into liquidation and pleaded guilty and those proceedings accordingly come to an end. It is alleged that the petitioner can no longer represent the Company since it has gone into liquidation and the liquidator is in the field. Accordingly, the petitioner has prayed for setting aside the relevant orders passed in all these proceedings.
3. I have heard the learned Advocate representing both the sides. It is submitted for the petitioner that the Company went into liquidation on 26-5-87. The learned Advocate submits that the petitioner, who at his instance was allowed to represent the Company by resorting to a petition under Section 305, Cr.P.C. has got no legal right to represent the Company any further since the Company can now be represented by the liquidator alone with the leave of the Court appointing such liquidator. He is can did enough to submit that individual responsibility of the petitioners obviously remains since he at the' relevant time was one of the Directors of the Company. It is his only contention that the Company cannot have any liability any further and in support of his contention he relied on Section 446 of the Companies Act which of course in my opinion does not help him. He also relied on an unreported decision of this Court being Criminal Revision 1842 of 1984 passed by a Division Bench of this Court on 11-4-85. It is true, that the same case also dealt with the offences under the Providend Fund Act but in that case since the Company was no longer in existence after it was nationalised and a separate undertaking came in its place and also in view of the fact that so far as the erstwhile Directors of the Company are concerned the proceeding was earlier quashed by this Court, the proceeding against the Company was also quashed in course of the revisional application relied on by the learned Advocate. In the present case it cannot be said that the liability of the Company is over since the company though not functioning is very much in existence though the liquidator is in charge. Therefore, the liability of the Company in the shape of omission to deposit the employer's contribution of Provident Fund for particular period is still there but in view of the change of circumstances the petitioner can no longer represent the Company due to the appointment of official liquidator.
4. On the other hand, the learned Advocate representing the O. Ps. relied on a decision . This in my opinion has got no bearing in the present case. It is an authority of the point that non-payment of employer's contribution to the Provident Fund is a continuing offence and, therefore, the period of limitation prescribed by Section 468, Cr.P.C. is not applicable rather it is a case in which Section 472, Cr.P.C. is applicable as limitation runs at every moment of the time during which the offence continues. The decision is also not applicable in the present case since the fact is completely different. It is an authority on the point that relief under Section 633 of the Companies Act cannot be extended in respect of liability under any Act other than the Companies Act. The offence on account of nonpayment of employees' Provident Fund dues by the Officers of the Company shall attract the liability in terms of Section 14-A(1) of 1952 Act and as such in the said case the relief under Section 633 of the Companies Act was not given to the Officers of the Company.
5. After giving my anxious consideration to the submissions of both the sides, I come to the conclusion that in view of the admitted position that the Company in question went into liquidation on 26-5-87 and an official liquidator having been already appointed by the Court the petitioner who at one point of time being a Director of the Company voluntarily took upon himself the responsibility of representing the Company, by resorting to an application under Section 305 Cr.P.C. cannot hold good at the present moment. The only person who can represent the Company at the present moment is the official liquidator and appropriate steps need be taken for making him a party so as to represent the Company in all the proceedings pending before the trial Court. It is made clear that the liability of the Company notwithstanding its liquidation in my opinion still continues since offence was committed at a point of time when the company was functioning properly. It is also made clear that the liability of the petitioner as a Director of the Company shall also remain in accordance with the appropriate provisions of the Act of 1952. But the only exemption which he gets in this scope of the revisional applications is that he is absolved from the liability to represent the Company who also figures as an accused in the aforesaid proceedings. The revisional applications are accordingly disposed of on contest in the light of the observations made in the body of the judgment.