Criminal Misc.
M No.7874 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Misc.
M No.7874 of 2011 (O&M) Date of Decision: December 07, 2012 Dervinder Singh ...........Petitioner Versus Provident Fund Inspector ..........Respondent Coram: Hon'ble MRS.Justice Sabina Present: Mr.Vivek Salathia,Advocate for the petitioner.
Mr.Rajesh Hooda,Advocate for the respondent -- Sabina, J.
Petitioner has preferred this petition under Section 482 of the Code Criminal Procedure, 1973 seeking quashing of the Criminal complaint No.72 of 2.2.2009 titled as `Provident Fund Inspector versus Tip Top Dry Cleaners and Dyers and OtheRs.(Annexure P1) and summoning order dated 2.2.2009 (Annexure P2) alongwith all consequential proceedings arising therefrom.
Learned counsel for the petitioner has submitted that as per the Employees' Provident Funds and Miscellaneous Provisions Act,1952 (for short `the Act').only those partneRs.who were responsible for the conduct of the business of the establishment, could be impleaded as accused.
As per form 5A (Annexure P3) submitted by the establishment, Paramjit Singh was the person who was Incharge of and responsible for the conduct of Criminal Misc.
M No.7874 of 2011 (O&M) 2 the business of the establishment.
The said partner was facing the criminal proceedings.
Petitioner was although one of the partner of the establishment but he was not responsible for the conduct of the business of the establishment.
Even otherwise, the entire amount in question had already been deposited by the establishment.
Learned counsel for the respondent, on the other hand, has opposed the petition.
However, he has admitted the factum of the deposit of the amount in question by the establishment.
After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed.
It has been held in State of Haryana versus Bhajan Lal, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482,Cr.P.C.Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1)Where the allegations made in the fiRs.information report or the complainant, even if they are taken at their face value and accepted in their entirety do not prima Criminal Misc.
M No.7874 of 2011 (O&M) 3 facie constitute any offence or make out a case against the accused.
(2)Where the allegations in the fiRs.information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused.
(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is Criminal Misc.
M No.7874 of 2011 (O&M) 4 specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”
The case of the respondent-complainant, in brief, is that the petitioner and his co-accused were the partners of the `Tip Top Dry Cleaners and Dyers .' The accused had failed to deposit the Provident Fund Contribution, Employees' Pension Contributions and the Administrative Charges, Deposit Linked Insurance Contributions and EDLI Administrative charges for the period in question.
Annexure P3 is the form 5-A submitted by the establishment- M/s Tip Top Dry Cleaners and DyeRs.A perusal of the same reveals that in Column No.8 particulars of the owner have been given.
Petitioner is also mentioned as one of the partners of the establishment.
As per Criminal Misc.
M No.7874 of 2011 (O&M) 5 column No.11, Paramjit Singh has been described to be the person who was Incharge and responsible for the conduct of the business of the establishment.
Section 2(e) of the Act reads as under:- “Employers'' means- (i)in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manger of the factory under clause (f) of sub-section (1) of Section 7 of the Factories Act, 1948 (63 of 1948, the person so named; and (ii) in relation to any other establishment, the person who, or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent;]..”
A perusal of the complaint (Annexure P1) reveals that it is not the case of the respondent-complainant that the establishment was registered under the Factories Act.
Thus, the employer with regard to the establishment in question would be the person who has the control over the affairs of the establishment.
As per Annexure P3, Paramjit Singh, partner is the Incharge of and responsible for the conduct of the business of establishment.
Hence, the continuation of criminal proceedings against the petitioner, who is not the Criminal Misc.
M No.7874 of 2011 (O&M) 6 Incharge of and responsible for the conduct of the business of the establishment, would be nothing but an abuse of process of law.
So far as Paramjit Singh, partner is concerned, he is stated to be facing criminal proceedings .
Admittedly, the amount in question has been deposited by the establishment.
Accordingly, this petition is allowed.
Criminal complaint No.72 of 2.2.2009 titled as `Provident Fund Inspector vs Tip Top Dry Cleaners and Dyers and OtheRs.(Annexure P1) and all consequential proceedings arising thereto including summoning order dated 2.2.2009 (Annexure P2) are quashed.
( Sabina ) Judge December 07, 2012 arya