Bangalore District Court
M/S Essential Services vs # 260/ on 26 November, 2015
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 26th day of November 2015
PRESENT
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
CRIMINAL APPEAL No.383/2014
APPELLANTS/ 1. M/s Essential Services
ACCUSED : # 260/1, Roopa Complex,
R.No.5, 1st Floor, 3rd Main,
Chamarajpet,
Bengaluru - 560 018.
Represented by its Proprietor,
N.Ravindranath.
2. N.Ravindranath,
Proprietor,
M/s Essential Services,
# 260/1, Roopa Complex,
R.No.5, 1st Floor, 3rd Main,
Chamarajpet,
Bengaluru - 560 018.
(By Sri.Desureddy and Associates,
Advocates)
- Versus -
RESPONDENT/ The Enforcement Officer,
COMPLAINANT : Employees Provident Funds
Organizations,
No.13, Raja Ram Mohan Roy Road,
Bengaluru.
(By Smt.Nanditha Haldipur, Advocate)
JUDGMENT
The appellants/accused have preferred this appeal under Sec.374(2) Cr.P.C. challenging the judgment passed by the 2 Crl.Appeal.383/2014 Special Court for Economic Offences, Bengaluru, in C.C.1790/2004 dated 26-03-2014, wherein she has convicted the accused No.2 for the offence under Sec.14(1A) r/w Sec.14(A) of Employees Provident Funds and Miscellaneous Provisions Act, 1952 and sentenced to undergo simple imprisonment for one year and to pay fine of Rs.5,000/- in default of fine to undergo simple imprisonment for 3 months.
2. The appellant No.1 and 2 were the accused and respondent was the complainant before the trial court. For the sake of convenience, rank of parties is referred to as stood before the court below.
3. The brief facts leading for disposal of this appeal are as follows:
Complainant is an Inspector appointed under Sec.13 of Employees Provident Funds and Miscellaneous Provisions Act, 1952 and he is a public servant within the meaning of Sec.21 of I.P.C. It is the case of complainant that accused No.1-M/s Essential Service, Bengaluru, is an establishment within the meaning of Employees Provident Funds and Miscellaneous Provisions Act, 1952. Employees Provident Funds and Miscellaneous Provisions Act, 1952 are applicable to the accused No.1-Establishment. Accused No.1 has obtained Code 3 Crl.Appeal.383/2014 Number which is KN/19633. It is the case of complainant that accused No.2 is the person in-charge of the Establishment and accused No.2 is responsible for the conduct of the business and accused No.2 is required to comply all the provisions of the above referred Acts in respect of the accused No.1-
Establishment. It is the case of complainant that, under Paragraph-30 and 39 of Employees' Provident Fund Scheme 1952, the accused are required to pay the employees and employers contributions to the Provident Fund in respect of the employees of the said establishment together with Administrative charges for every month within 15 days of the close of that month. It is the case of complainant that, the accused No.2 in spite of several requests has failed to pay the P.F. contribution and administrative charges for a period from January-2001 to March-2001 in sum of Rs.4,23,285/- and Rs.38,801/- respectively. Accused has failed to pay the said amount in time and thereby accused No.1-Establishment has committed the offence under Sec.76(d) of the EPF Scheme, 1952 r/w Sec.14(1A) and 14(A) of Employees Provident Funds and Miscellaneous Provisions Act, 1952, on or about the following dates;
4 Crl.Appeal.383/2014
Date on which the
Month and Year
offence was committed
January - 2001 16-03-2001
February - 2001 16-03-2001
March - 2001 16-04-2001
4. It is the case of the complainant that accused No.1 and 2 were in charge of the Establishment during the above said period and they are responsible for non payment of the said amount. It is the case of complainant that the, Regional Provident Fund Commissioner, Bengaluru, Karnataka has given sanction for prosecuting against the accused No.1 and 2 on 28-10-2004 for the above said offences, so he has lodged the complaint against the accused persons.
5. The complainant has lodged the complaint before the trial court and trial court has taken cognizance and registered the case against the accused No.1, 2 and issued summons to accused No.1 and 2. Accused No.2 appeared himself and on behalf of accused No.1 and accused No.2 has been enlarged on bail. The trial court has furnished the copy of the complaint and other documents produced by the complainant along with the complaint to the accused, thereafter trial court has posted the case for evidence before charge. Thereafter, trial court by considering the evidence 5 Crl.Appeal.383/2014 placed before it passed an order stating that the materials before the court are sufficient for framing the charge against the accused for the offences under Sec.14(1A) r/w 14(A) of Employees Provident Funds and Miscellaneous Provisions Act, 1952 and framed charge against accused No.2 and read-over the said charge to the accused No.2 in the open court, accused pleaded not guilty and claimed to be tried. Thereafter, trial court called upon the complainant to prove his case by leading oral and documentary evidence. The complainant in order to prove the case got examined himself as PW.1. Complainant in support of his case produced 26 documents and got them marked as Ex.P1 to Ex.P26 and closed its side. During the cross-examination of PW.1, two documents came to be marked on behalf of the accused as Ex.D1 and 2 thereafter trial court has posted the case for recording Sec.313 Cr.P.C. statement of accused to enable him to explain incriminating circumstances appearing against him in the prosecution witnesses. Accused denied the statement in toto and further stated that he has no defence evidence and nothing to say thereafter trial court has posted the case for arguments.
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6. The trial court heard the arguments advanced by the counsel for the complainant and accused in length and pronounced the judgment on 26-03-2014, the trial court has convicted the accused for the offence punishable under Sec.14(1A) r/w Sec.14(A) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and sentenced to undergo simple imprisonment for one year and to pay fine of Rs.5,000/- in default of fine to undergo simple imprisonment for 3 months.
7. The accused being aggrieved by the judgment and order passed by the trial court in C.C.1790/2004 dated 26-03- 2014 came in appeal on the following among other grounds;
The trial court has committed grave error in law in taking cognizance of the offence. The trial court has committed error in law in accepting and acting upon the evidence of PW.1 which is inadmissible. The evidence taken by the trial court is manifestly erroneous and argument employed by the trial court for convicting the accused utterly unsustainable in law. The judgment passed by the trial court is one sided. The observation of the trial court that the accused has to produce the relevant document to prove that he has paid the contribution is erroneous. The trial court has 7 Crl.Appeal.383/2014 erred in not considering the fact that the prosecution has not examined the material witnesses to prove its case. The trial court has erred in not taking into consideration the fact that the Inspection Report received from E.O. is not mentioned in Sanction Order. The sentence passed by the Magistrate is harsh and severe one. On these grounds and among others the appellant/accused prayed for setting aside the judgment and sentence passed by the trial court and prayed for acquitting the accused.
8. This appeal was presented before the Hon'ble City Civil & Sessions Judge, Bengaluru, it is registered as Criminal Appeal No.383/2014 and made-over to this court for disposal according to law. After the receipt of the records this court has issued notice to the respondent and the respondent appeared through its counsel. Thereafter the LCR's were secured and they are before the court.
9. Heard the arguments advanced by the learned counsel for the appellant. Perused the written arguments submitted by the respondent.
10. The points that arise for my determination are as under:
8 Crl.Appeal.383/2014
1. Whether the trial court has committed any error appreciating the oral and documentary evidence on record?
2. Whether the trial court has committed any error in not considering the fact that material witnesses have not been examined and non-
examination of the material witnesses is fatal to the case of prosecution?
3. Whether the interference is necessary in the impugned judgment and sentence under appeal from this court?
4. What Order?
11. After hearing the arguments and perusal of documents placed before me, my findings to the above points are as follows:
Point No.1 to 3 : In the Negative;
Point No.4 : As per final order
for the following;
REASONS
12. POINT No.1 TO 3: The above points are inter-
connected, hence they are taken up for discussion together in order to avoid repetition.
13. In the present case, accused No.2 has not disputed that he is the Proprietor of accused No.1- Establishment i.e., M/s Essential Services, No.260/1, Roopa 9 Crl.Appeal.383/2014 Complex, R.No.5, 1st Floor, 3rd Main, Chamarajapet, Bengaluru. Further the accused No.2 has appeared on behalf of accused No.1 also and accused No.2 has not disputed the fact that he is looking after accused No.1-Establishment and he is the Proprietor of accused No.1-Establishment. Further accused have not disputed the fact that, it will come under the purview of the Employees Provident Funds and Miscellaneous Provisions Act 1952, the Employees Provident Fund Scheme 1952 and Employees Pension Scheme 1995 and the said provisions are applicable to accused No.1-Establishment. Further accused have not disputed that accused No.1- Establishment has been allotted Code No.KN/19633. Further accused No.2 has not disputed that he is in-charge of the Establishment and he is responsible for the conduct of the business of accused No.1-Establishment. Further accused No.2 has not disputed that he is required to comply with the provisions of the above referred Acts. Further it is undisputed that under Paragraph No.30 and 39 of EPF Scheme 1952, the accused are required to pay the employees and employer's contribution to the Provident Fund in respect of the employees of the said establishment together with Administrative charges for every month within 15 days of the close of that month.
10 Crl.Appeal.383/2014
14. It is the case of complainant that, accused have not paid the P.F.Contribution and the Administrative Charges for the month of January-2001 to March-2001 the tune of Rs.4,23,285/- and Rs.38,801/- respectively. It is the case of complainant that he has requested the accused persons for making payment of the same on several occasions but they have not made payment in spite of repeated requests, thereby accused have committed the offences under Sec.14(1A) r/w Sec.14(A) of Employees Provident Funds and Miscellaneous Provisions Act, 1952.
15. The defence of the accused is general denial. It is the case of accused that he is not liable to pay the employees and employers contribution to the Provident Fund in respect of the employees of the accused No.1-Establishment together with Administrative charges for every month within 15 days of the close of that month. He has supplied the employees to HAL, MEI, ITI, Grand Ashoka and other Establishments and the principle employers are liable to pay the said amounts and the complainant can take action against the principal employer and false case is filed against him. Further another defence of the accused is that, complainant has not produced any documents to show that he was in-charge of the accused 11 Crl.Appeal.383/2014 No.1-Establishment. 7(A) Order is passed without giving opportunity to him. In Ex.P25-Sanction Order reference of 7(A) Order is not made. The complainant has not produced documentary evidence to show that he has not paid the GPF contribution of the employees for the month of January-2001 to March-2001 as alleged in the complaint.
16. Complainant in order to prove his case examined himself as PW.1 and PW.1 has reiterated the averments of the complaint in his examination-in-chief. Complainant in his evidence stated that he is working as Enforcement Officer, EPFO, Regional Office, Bengaluru, since 2003 from 2004. He is working as E.O, EPFO (Prosecution case). He has been appointed as E.O. as per Sec.31 of the EPF and MP Act and he has produced his attested copy of the Identity Card and the same is marked at Ex.P1. He has also produced the attested copy of Office Order regarding his posting as E.O. (Prosecution Case) and the same is at Ex.P2. Further PW.1 has stated that Inspectors are also appointed as Asst. Public Prosecutors and to show the same has produced the attested copy of the Notification and the same is Ex.P3. Further, complainant has produced the attested copy of Notification to show that Enforcement Officer of EPFO are appointed as Inspectors and 12 Crl.Appeal.383/2014 the same is Ex.P4 and stated that as per Ex.P4-Notification he is authorized to give evidence and conduct cases. Further PW.1 has stated that, he is giving evidence on the basis of the records. He know the accused No.1-Establishment and accused No.1-Establishment comes within the meaning of Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the Code Number of the said Establishment is KN/19633. Further PW.1 has stated that, accused No.2- Ravindranath is the Proprietor of accused No.1-Establishment and he is in-charge of accused No.1-Establishment and he is responsible for the conduct and business of accused No.1- Establishment. Further PW.1 has stated that, accused No.1- Establishment came to be covered from 01-10-1996 as per coverage letter dated 06-01-1997 sent them to accused No.2 and identified the attested copy of the letter sent to accused No.2 as Ex.P5. Further PW.1 has stated that accused No.1- Establishment is covered on voluntary basis and he has produced the attested copy of Notification dated 23-01-1998 and the same is marked at Ex.P6 and relevant entry on Ex.P6 is on Page No.5 and the same is at Ex.P6(a).
17. Further PW.1 has produced the attested copy of Form No.5(A) filed by the accused and the same is at Ex.P7 13 Crl.Appeal.383/2014 and perusal of the Ex.P7 discloses that accused No.2 is shown as the owner in Column No.8 and person responsible for conduct of business at Column No.11 and the same is signed by accused No.2. Further PW.1 has stated that as per Para-38 of EPF Scheme 1952, the accused was required to pay the P.F. Contribution and Administrative Charges within 15 days of the following month in which the payment fell due. The failure to comply with the said requirement is an offence punishable under Sec.14(1A) r/w Sec.14(A) of Employees Provident Funds and Miscellaneous Provisions Act, 1952. Further PW.1 has stated that, accused No.1 and 2 have failed to pay the employees' share to P.F. contributions and Administrative charges in a sum of Rs.4,23,285/- and Rs.38,801/-for the period from January-2001 to March-2001 respectively within 15th of the following months in which it fell due and thereby committed the offence under Sec.14(1A) r/w Sec.14(A) of Employees Provident Funds and Miscellaneous Provisions Act, 1952.
18. Further PW.1 has stated that Show Cause Notice came to be issued to accused No.2 on 08-10-2002 and identified the attested copy of the same and the same is at Ex.P8. Further PW.1 has stated that Ex.P8 is received by the 14 Crl.Appeal.383/2014 Manager of the accused No.1-Establishment as per the endorsement made in the office copy. Further PW.1 has stated that, the accused have failed to give any reply to the said Notice and they have also not paid the contributions. Hence, the enquiry is initiated under Sec.7(A) of EPF and MP Act. In this regard, summons under Sec.7(A) dated 08-11- 2002 was issued to accused No.1-Establishment and produced the attested copy of the summons and the same is at Ex.P9. Further PW.1 has stated that, Ex.P9 is served to one Sri.M.Srinivasa-Manager of accused No.1-Establishment as per the endorsement made in the office copy. Further PW.1 has stated that accused have written letter dated 17-01-2003 claiming to have remitted Rs.79,94,100/- and identified the attested copy of the same as Ex.P10. Further PW.1 has stated that after verifying the records in his office, they found discrepancy in amount claimed to have been remitted and actual payments made by the accused.
19. Further PW.1 has stated that, his office has written letter to the Branch Manager, SBI, N.T.Pet Branch, Bengaluru- 18, seeking confirmation of remittance made by the accused and also identified the attested copy of the said letter as Ex.P11. Further PW.1 has stated that, State Bank of India has 15 Crl.Appeal.383/2014 sent reply to the said letter which is dated 16-04-2003 and wherein the State Bank has clearly stated the actual remittance made by the accused persons and PW.1 has identified the attested copy of the said letter as Ex.P12. Further PW.1 has stated that the Enforcement Officer has sent Report to the RPF Commissioner along with statement showing the actual remittance made by the accused persons and identified the attested copy of Report and statement and they are at Ex.P13 and 14. Further PW.1 has stated that, as per Ex.P14 the differences in actual payment made and claimed to be made by the accused is Rs.38,48,739/-. Further PW.1 has stated that, the Enforcement Officer have filed complaint against the accused before the Central Police Station, Bengaluru and the case is registered in Crime No.62/2003 and identified the attested copy of the complaint and FIR and they are at Ex.P15 and 16. Further PW.1 has stated that, they have issued 7(A) Notice dated 18-09-2013, 15-10-2003, 03-02-2004, 23-03-2004 and 02-04-2004 to accused No.1-Establishment and identified the attested copies of the same as Ex.P17 to 21. Further PW.1 has stated that, the said Notice were received by one Sri.Ramesh Babu, Advocate for accused as per the endorsement made in the 16 Crl.Appeal.383/2014 office copies. Further PW.1 has stated that EPF Commissioner after due enquiry has passed order dated 18-05-2004 determining the contributions payable for the period from October-1996 to November-2002 and identified the attested copy of the order as Ex.P22. Further PW.1 has stated that, they have sent copy of the order to accused No.1- Establishment along with the covering letter and identified the same as Ex.P23. Further PW.1 has stated that the same is received by one Ramesh Babu, Advocate for the accused as per the endorsement made in the office copy of the covering letter. Further PW.1 has stated that 7(A) enquiry reveals that accused No.2 has defrauded EPFO by changing the amount in the challan after the seal of the Bank was affixed. Further PW.1 has stated that even after the receipt of 7(A) Order, accused has not paid the contribution in question. Further PW.1 has stated that, the Central Government has delegated its powers to RPF Commissioner to issue Sanction and identified the attested copy of the Notification to that effect as Ex.P24. Further PW.1 has stated that, all the records were placed before the RPF Commissioner and after going through all the records and applying his mind, the RPF Commissioner has issued Sanction Order to prosecute the accused persons 17 Crl.Appeal.383/2014 and identified the Sanction Order as Ex.P25. Further PW.1 has identified the complaint lodged by him as Ex.P26 and prayed for convicting the accused.
20. The counsel for the accused has cross-examined PW.1 and PW.1 in his cross-examination stated that, "he is giving evidence on the basis of records, he is not having personal knowledge about the facts of the case. The complaint lodged in this case is in printed form. Without seeing the records he cannot say the total arrears of the accused to be paid to the complainant-Authority. He cannot say the arrears of the contribution to be paid by the accused in this case."
21. Relying upon the above admission, the counsel for the accused has submitted that PW.1 has stated that he is giving evidence on the basis of records, he is not having any personal knowledge in this case, he cannot say the arrears of the accused to be paid to the Authority without referring the documents, so his evidence cannot be relied upon. The complainant in his examination-in-chief also has clearly stated that he is giving evidence on the basis of the records, PW.1 is in a position to answer the questions put to him by verifying the records. The complainant has produced Ex.P1 to 26- 18 Crl.Appeal.383/2014 documents and the said documents clearly discloses that what is the arrears of the accused to be paid to the Authority, what is the contribution made by the accused to the Authority and what is the arrears remaining. The said documents are undisputed and clearly goes to show that the accused are in arrears of the amount as alleged in the complaint and they have not made the payments, so for that reason the evidence of PW.1 cannot be discarded. This is an economical offence and based on the documentary evidence. Further Ex.P22 is a 7(A) Order passed by the EPF Commissioner and wherein it is clearly stated regarding the arrears of amount and directions have been given to the accused to pay the said amounts, accused has not paid the said amounts. The order as per Ex.P22 is final as accused has not preferred any appeal or revision against the same as provided under GPF Act, so the Order as per Ex.P22 is final and conclusive. If the accused is aggrieved regarding the order as per Ex.P22, he has to challenge before the proper authority and correctness of Ex.P22-Order cannot be looked into by this court. This court is not the appellate authority to decide the correctness of Ex.P22-Order. Ex.P22-Order is final and conclusive as the accused has not preferred any appeal or revision against the 19 Crl.Appeal.383/2014 said order as provided under the GPF Act and Rules. In Ex.P22-Order, it is clearly mentioned regarding the arrears of amount to be paid by the accused and even directions have been given to the accused persons to pay the same, accused have not preferred any appeal. Further the Notices were issued and enquiry has been held by EPF Commissioner and after giving opportunity to the accused, order as per Ex.P22 is passed. Ex.P1 to 20-documents, clearly goes to show that before passing Ex.P22-Order, Notice was served to the accused, opportunity was given to the accused to submit his say and produce the documents and thereafter Order has been passed as per Ex.P22. Order as per Ex.P22 is a speaking order and wherein it is clearly mentioned regarding the arrears of the amount to be payable by the accused. So, the above admission of PW.1 will no way affect the case of complainant. The trial court has also considered the said aspect in its judgment. So, the contention of the appellant/accused that trial court has not considered the said admissions is unacceptable one. Further the learned counsel for the accused has submitted that, PW.1 has admitted in his evidence that "with respect to the P.F. Act, in case the contractor fails to deposit EPF contribution, the same can be 20 Crl.Appeal.383/2014 recovered from the principle employer, we have not taken any action to recover the arrears of contribution from the principle employer". The said admission goes to show that the complainant-authority can also take action against the principle employer for recovery of EPF contribution. In the present case accused No.2 has voluntarily submitted Form No.5 and complainant-Authority has produced the attested copy of Form No.5 submitted by accused No.2 which is at Ex.P7. Accused No.2 has not disputed Ex.P7. In Ex.P7, accused No.2 is shown as the owner in Column No.8 and person responsible for the conduct of business at Column No.11, Ex.P7 is signed by accused No.2 and Ex.P7 clearly discloses that accused No.2 is a person in-charge of accused No.1-Establishment and accused No.2 is responsible for the conduct of business of accused No.1-Establishment. Accused No.2 is required to comply with all the provisions of Employees Provident Fund Act. So, complainant-authority is entitled to proceed against the accused No.1-Establishment and same is made very clear in Para-30 and 38 of the Employees Provident Fund Scheme 1952 and trial court has considered the said aspect and negatived the contention of the accused. So, the contention of the counsel for the accused that as the 21 Crl.Appeal.383/2014 complainant-authority has not made the principle employer as party to the present proceedings, the present proceeding is void under law is unacceptable one.
22. Further PW.1 in his cross-examination admitted that, he has not produced the copies of the Bank challans in all the cases against the accused, he is not having any difficulty for producing the said challans before the court, he is not having any difficulty to examine the Bank Manager, he cannot say that without referring the Bank challans 7(A)-Order is passed, he has not verified the Bank challans before filing the complaint as everything is reflected in 7(A)-Order. The counsel for the accused relying upon the above admission has submitted that, the complainant has not produced the challans filed before the Bank, complainant has not examined the Manager of the Bank to prove that the accused have not deposited the amount in the Bank as per the letters given by them to the complainant-authority. So, the complainant has failed to prove the arrears claimed in the complaint. In the present case, Ex.P1 to 22-documents, clearly goes to show that EPF Commissioner has held enquiry and passed the 7(A)- Order as per Ex.P22. The EPF Commissioner has verified the documents produced by the complainant-Authority, given 22 Crl.Appeal.383/2014 opportunity to the accused to submit his say, the documents which are at Ex.P1 to 21 clearly goes to show that sufficient opportunity was given to the accused to prove that he has paid the entire amount of PF Contribution and he is not having any arrears and accused has failed to prove the same and EPF Commissioner has passed Order as per Ex.P22. The Order as per Ex.P22 is final and conclusive. This court will not hold any enquiry and decide whether the accused has paid the entire amount or not. Ex.P22-Order clearly goes to show that accused is in arrears of contribution and the said order is final and conclusive. Before passing the said order, challns of the Bank, letter written by the Bank were verified and EPF Commissioner came to the conclusion that after Bank has passed the challan, accused has made over writing on the challan and produced the same before the complainant- authority and thereby EPF Commissioner has concluded that accused is in arrears of amount as claimed in the complaint. So, the above admission of PW.1 will no way affect the case of complainant in any way.
23. The counsel for the accused has contended that, in Ex.P25-Sanction Order, there is no reference in respect of Ex.P22, 7(A) Order. So, the Sanction is not in accordance 23 Crl.Appeal.383/2014 with law. Further the counsel for the accused has submitted that the trial court in its judgment Para-56 observed as under;
"The accused has also taken a contention that 7(A) order is not referred in the Sanction Order. I have perused the Sanction Order marked at Ex.P25 where 7(A) Order is not referred and contended that the Sanction Order is not in accordance with law."
24. Perusal of Ex.P25-Sanction Order discloses that, there is mentioned regarding the receipt of Report of Enforcement Officer by EPF Commissioner which can be seen from the recitals of Ex.P25, they are as under;
"WHEREAS I, Sri.S.Narasimhan, Regional Provident Fund Commissioner, Karnataka, have received a report from the Enforcement Officer, Employees' Provident Funds.
WHEREAS I am satisfied that the Employer of M/s. Essential Services, No.260/1, 'Roopa Complex', R.No.5, 1st Floor, 3rd Main, Chamarajapet, Bengaluru - 18, KN/19633 has
1) Failed to pay the Provident Fund contributions amounting to Rs.4,23,285/- (Rupees Four Lakh Twenty Three Thousand Two Eighty Five only) for the period from January-
2001 to March-2001 as per the particulars mentioned below which they are liable to pay within the prescribed time under the Act, and The Employees' Provident Fund Scheme, 1952 and such failure is an offence punishable under Sec.14(1A) and 14(A) of the Act."
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25. The said recitals clearly goes to show that the RPF Officer has verified the 7(A) Order while passing the Sanction Order as per Ex.P25. So, the contention of the counsel for the accused that in Ex.P25 there is no reference regarding order passed as per Ex.P22 is unacceptable one.
26. Further the learned counsel for the accused has relied upon Ex.D1, 2 and submitted that the complainant- Authority had attached the immovable property for surety of the accused No.1 one G.N.Chandrappa and as per Ex.D2 the Asst. P.F. Commissioner has written letter to the Sub- Registrar, Nelamangala Taluk, Nelamangala, Bengaluru Rural District, for creating encumbrance on the property of surety as per Ex.D1, so the complainant-Authority again cannot proceed against the accused persons. The present case is filed against the accused persons for violation of provisions of Sec.14(1A) r/w 14(A) of EPF and MP Act 1952 and for recovery of the amount. The said provision is a penal provision, non-payment of the employees' and employers contribution in respect of the employees of the Establishment for every month within 15 days of the close of that month is punishable as per Sec.14(1A) r/w 14(A) of EPF and MA Act, 1952.
25 Crl.Appeal.383/2014
27. The perusal of the judgment of the trial court, trial court has sentenced the accused No.2 for committing breach of payment mentioned in the complaint and sentenced to undergo simple imprisonment for one year and pay fine of Rs.5,000/- in default of payment of fine to undergo simple imprisonment for 3 months. The trial court has not passed any order regarding the directions to pay the arrears amount in the judgment. Further Ex.D1 and 2, nowhere discloses that amount is recovered from the surety. The only objection of the accused that property of the surety is attached and encumbrance is made to the property of the surety. Accused has not produced any documentary evidence to show that the entire amount has been recovered. Further recovery of amount is one aspect and penal provision for committing default is another aspect. If the accused shows that entire amount is recovered from him, then only he is entitled for leniency at the time of imposing sentence, as the recovery proceedings and the penal proceedings are different. So, the contention of the counsel for the accused that as the property of the surety of accused No.2 is attached and encumbrance is made on the property, the complaint liable to be dismissed is unacceptable one.
26 Crl.Appeal.383/2014
28. The counsel for the appellant has relied upon the judgment of our own Hon'ble High Court of Karnataka in Crl.Revision Petition No.1439/2010 C/W 1485 - 1488 & 1490
- 1514/2010 (Case: M/s V.M.Confectionery Ltd. and another Vs. The Enforcement Officer, EPFO) and submitted that if the court comes to the conclusion that accused have committed the offence, in such case leniency may be shown while sentencing the accused and accused may be sentenced to undergo 1 day imprisonment till raising of the court. In the above referred petition, the petitioner-Company was closed in the year 2004 due to loss suffered by it and the petitioner has deposited the amount within the period mentioned by the trial court in its judgment and looking to the facts and circumstances in the said case, the Hon'ble High Court has modified the sentence passed by the trial court and sentenced the accused for imprisonment for 1 day till raising of the court. In the present case in hand, it is no where case of the accused that they have deposited the amount. Further in the present case it is no where case of the accused that they have stopped the Establishment due to losses. So, the facts and circumstances in the present case are different to that of the above referred judgment of Hon'ble High Court. So, giving full 27 Crl.Appeal.383/2014 respect to the lordship in the above cited judgment, I am of the opinion that principles laid down in the above cited appeals are not applicable in the present case in hand.
29. Perusal of the judgment of the trial court clearly goes to show that the trial court has appreciated the oral and documentary evidence lead by the parties. The judgment of the trial court is well reasoned, trial court has not committed any illegality, so no interference is necessary from the hands of this court. Further the counsel for the appellant/accused has not pointed out to me which are the material witnesses which the complainant has not examined and which are the material documents which the complainant has not produced. In the present case in hand, order passed by EPF Commissioner under Sec.7(A)-Enquiry, clearly goes to show that the appellant/accused have been given sufficient opportunity to produce the documents and show that he has made the entire payments. Further the EPF Commissioner has given Notice to the Bank and obtained reply, verified all the documents and passed the order as per Ex.P22. The order as per Ex.P22 is not challenged by the appellant/accused, so the said order is final and conclusive. The court will not decide regarding the correctness of the said order. So, the 28 Crl.Appeal.383/2014 contention of the appellant/accused that the complainant has not examined the material witnesses and complainant has not produced the material documents, so the order of the trial court is not sustainable under law is unacceptable one. Looking from any angle, the judgment of the trial court not suffers from any illegality, so no interference is necessary. Hence, for the above discussions, I answer point No.1 to 3 in the NEGATIVE.
30. POINT No.4: In view of my findings on point Nos.1 to 3 and reasons stated therein, I proceed to pass the following:
ORDER The Criminal Appeal preferred by the appellant/accused is dismissed with cost.
The judgment of the trial court, under appeal is confirmed.
Send back the LCR's along with the copy of judgment to the trial court.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 26th day of November 2015).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.