Ashim Kumar Roy, J.
1. Heard Mr. Satrajit Sinha Roy, the learned Advocate, appearing on behalf of the petitioners, Mr. Swapan Kumar Mullick, the learned Advocate, appearing on behalf of the State as well as Mr. Anil Kumar Gupta, the learned Advocate, appearing on behalf of the Provident Fund Authorities.
2. The only point that arises for consideration in this criminal revision, whether a case registered under Sections 406/409 of the Indian Penal Code against the employer for non-depositing the employees' contribution to provident fund deducted from the wages payable to the employee is liable to be quashed, on subsequent deposit of the said amount.
3. Mr. Sinha Roy, the learned Advocate, appearing on behalf of the petitioner pointed out before this Court that an FIR has been lodged alleging commission of offence punishable under Sections 406/409 of the Indian Penal Code against the present petitioners, the company as well as its three Directors for non-depositing a sum of Rs. 13,73,978/- which they deducted from the salary of the employees as the contribution towards their respective provident fund. He further submitted after institution of the aforesaid case the petitioners have deposited their entire amount of money with the Provident Fund Authorities and in support of such claim he draws the attention of this Court to the xerox copy of the receipts showing making of such payment annexed with the instant criminal revisional application. Mr. Sinha Roy further submitted that in view of subsequent deposits of the said amount in question the instant prosecution against the petitioners is liable to be quashed.
4. In this connection Mr. Sinha Roy relied on a decision of a Division Bench of our High Court in the case of Jasoda Glass & Silicate and Ors. v. Regional Provident Fund Commissioner and Ors. reported in 2002(2) CHN 407 and submitted before this Court that this Hon'ble Court after elaborately considering the every pros and cons of the matter directed the concerned Magistrate to drop the proceedings against the petitioners therein, in the event, it was found that the entire dues have already been paid.
5. On the other hand, Mr. Anil Kumar Gupta, the learned Advocate, appearing on behalf of the Provident Fund Authority vehemently opposed the prayer for quashing. Mr. Gupta submitted before this Court that the said case relates to the offences punishable under the Provident Fund Act but not relates to any offence punishable under Indian Penal Code. He further submitted that subsequent payment of amount, in any event, does not obliterate commission of an offence under Indian Penal Code and at best that would be a mitigating circumstances, when after conviction the question of imposition of sentence will arise. In this connection, he relied on an unreported decision of the Division Bench of our High Court, in the case of Universal Heavy Mechanical Lifting Enterprise and Anr. v. Union of India and Ors. in connection with Matter No. 97 of 1993. The relevant portion of the said judgment is quoted herein below:
We have given the matter our anxious thoughts and we are of the considered view that under Section 14(1A) of the Act any person who commits a default in complying with the provisions of Section 6 or Clause (a) of Sub-section (3) of Section 17 or paragraph 38 of the scheme, is liable to be punished. The amounts realized by the appellants along with their own contribution had to be deposited by the appellants under Section 6 of the aforesaid Act and they having not paid the amounts within the stipulated time, the offence stands committed and any subsequent deposit would not cause a waiver of the prosecution. That apart, by virtue of the amendment brought in the statute, non-payment of the employees' share of contribution amounts to criminal misappropriation within the meaning of the penal statute and temporary misappropriation be also criminal misappropriation within the meaning of law. Subsequent payments even though accepted by the Provident Fund Commissioner will not constitute condonation of the offence itself, but then if the Trial Court ultimately finds that the amount of contribution which was due and on account of which prosecution has been launched, has been actually paid before lodging of the prosecution or even immediately thereafter, the Trial Court may pass minimum sentence in accordance with law, under proviso to Section 14(1A) of the Act the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a lesser term as has been indicated in the statute itself and the powers of the Trial Court are obviously not fettered in this particular prescription.
6. Mr. Gupta further referred to two very recent decisions of our High Court and submitted that in one of such case, Debidas Dutta v. State of West Bengal reported in 2006(1) CLJ(Cal) 593, in similar facts and circumstances, while this Hon'ble Court rejected the accused persons prayer for quashing on the ground of subsequent payment, directed that in the event the said accused are found to be guilty such subsequent payment shall be taken into consideration in deciding the question of sentence. Mr. Gupta also relied upon another decision of our High Court, in the case of Kamala Tea Co. Ltd. and Ors. v. State of West Bengal and Anr. reported in 2007(2) CLJ(Cal) 124 and submitted that same view as that of the earlier one was taken by this Hon'ble High Court and in this regard referred paragraphs 10, 22, 23, 24 and 25 of the said decision which are quoted below:
Para 10. In the case of Employees State Insurance Corporation v. S.K. Aggarwal and Ors. reported in : 1998CriLJ4027 , the liability of the 'Directors' in a Public Limited Company was dealt with. The Apex Court held that the 'Directors' are not 'employer' as in the Public Limited Company, the company itself is 'principal employer'. This was in the context of Exp. 2 of Section 405 of Indian Penal Code. This significant aspect may perhaps be better appreciated in the context of the factual backdrop of a particular case. Any dispute involving mixed questions of law and facts can certainly be better decided at the time of trial.
22. It clearly emerges from the aforesaid discussion that there is no such law, nor any decision which conclusively dictates that in case of subsequent payment of the amount of employees' share of contribution towards P.F., however, belated it might be, the criminal prosecution must be quashed. It is rather the settled position of law that subsequent payment does not by itself condone the lapse but certainly is a factor to be taken into consideration at the subsequent stage and most certainly at the time of imposition of punishment, if at all.
23. Liability of the Directors, as earlier indicated, can be best decided at a subsequent stage. There could be Directors who cannot be held responsible for the alleged offences. But, it is neither possible nor desirable for this Court to quash the criminal proceedings initiated against them now. This Court at this stage is also not in a position to analyse the allegations against any particular accused person.
24. It is perhaps needless to mention that the Employees Provident Fund and Miscellaneous Provisions Act, 1952 is a social legislation. It is the result of decades of struggle of millions and millions of bare-footed workers. No authority can be permitted to unnecessarily tinker with it. Much was sought to be submitted regarding the difficult position the various companies were facing at the relevant time. Labour unrest, recession, decline of value in the market and many other grounds had been highlighted in the applications under reference. But, can all these be considered as sufficient justification for not depositing the money? This Court is, however, of the firm opinion that subsequent deposit, though welcome, as it is better late than never, cannot and does not absolve the accused persons of the liability of the criminal offence. Ours is a welfare State and the E.P.F. and Misc. Provisions Act is undoubtedly a welfare legislation. It helps the weak, the exploited, the oppressed and the wretched of the earth to survive in the midst of the turmoil created by stagflation in our economy. It attempts to take care of the future of the employees. The scheme cultivates among the workers spirit of saving something regularly. The employees cannot be left to the mercy of their masters. The legislation attempts to ensure that the future of the employees is not thrown into an ocean of uncertainty.
25. Considering all these aspects, this Court is not inclined to quash the criminal proceedings under reference.
7. According to Mr. Gupta, in the aforesaid two decisions, our High Court taken into consideration the decision relates to Jasoda Glass & Silicate and Ors. (supra) and passed the aforesaid order.
8. Mr. Swapan Kumar Mullick, the learned Advocate, appearing on behalf of the State supported the contention of Mr. Gupta and opposed the prayer for quashing on the ground of subsequent deposits of provident fund dues.
9. Heard the rival submissions of the parties. I found no reason to differ with the conclusions arrived at by this Court in the case of Debidas Dutta (supra) and Kamala Tea Co. Ltd. (supra) and to quash the impugned proceedings. I direct the learned Court below to take into consideration the subsequent deposits of provident fund dues while awarding the sentence in accordance with law, if ultimately the accused petitioners are found guilty for the commission of the alleged offence.
10. The criminal revision thus stands dismissed.
11. At this stage this Court's attention has been drawn to the fact that after filing of the chargesheet, on the prayer of the investigating agency, a warrant of arrest has been issued against the petitioner Nos. 2 and 3 in connection with the aforesaid Madarihat Police Station Case No. 44 of 2002 dated August 26, 2002, I direct the operation of the impugned order of warrant of arrest shall remain stayed for a period of six weeks and during such period of stay of execution of warrant of arrest, if the petitioners surrenders in Court and make any prayer for bail, the learned Court shall consider the same sympathetically in accordance with law, if it is found, that already the entire alleged dues have been deposited.
12. Let an urgent xerox certified copy of this order be supplied to the parties, if applied for, as early as possible.
Later:
13. Keeing in view of the fact that the main criminal provisional application being CRR No. 576 of 2006 has been disposed of, the instant application for appropriate order being CRAN No. 72 of 2007 in connection with the main criminal revisional application become infructuous and no order is required to be passed. The application being CRAN No. 72 of 2007 is, thus, disposed of.