S.K. Budhiraja Vs. State of Haryana Through the Chief Secretary to Govt. and anr. - Court Judgment

Excerpt:
- orderg.s. chahal, j.1. s. k. budhiraja who was the managing director of m/s. avon automotive components private limited, faridabad (for short the company) has come to this court in this petition under section 482 cr. p. c. read with article 227 of the constitution of india praying that the 62 complaints filed against the petitioner and pending in the court of cjm, faridabad, additional cjm, faridabad and judicial magistrate, faridabad, may be quashed.2. the petitioner has averred that the provident fund commissioner has through the provident fund inspector put in 6 complaints against the petitioner, with the purpose of prosecuting him for the offences under paragraph 38 of the employees provident fund scheme 1952 read with sections 60, 14(1b) and 14a of the act. these complaints are pending in different courts. copies of four complaints annexures p-l, p-2, p 4 and p-5 have been attached. the order of the winding up of the company had been passed by the delhi high court vide annexure p 3 and subsequent to the date of winding up of the company, the occupier was not under any liability to make the payment and the liability, if any, was of the official liquidator. that no notice had been served on the petitioner to specify as to the total amount of which he was liable.3. annexure p-3 is the order passed by the delhi high court in company petition no. 102 of 1984 and the company was ordered to be wound up and the official liquidator was directed to proceed in accordance with law for taking possession of the property, the assets, statutory books and other account books of the company this order is dated may 15, 1986.4. there is force in the contention of the learned counsel that in view of the provisions of section 456 of the companies act, the official liquidator shall be deemed to have entered into possession of the properties of the company and having assumed charge of the company. thereafter the liability to make the payment with respect to provident fund rested with the official liquidator and no other person who at one time held any office in the company will be liable. the complaints annexure p-l, p-2 and p 4 relate to the period june 1986 i.e. the period subsequent to the winding up of the company. complaint annexure p 5 relates partly to a period prior and partly to a period subsequently to the winding up of the company. the petitioner cannot be prosecuted with respect to the period beyond may 15, 1986. since the dues relate to april 1986 became payable on may 15, 1986, it was the duty of the official. liquidator to make that payment and' the petitioner cannot be prosecuted for non-payment of the dues for april 1986 and may 1986.5. accepting the arguments of the learned counsel, complaints annexure p-1, p-2 and p-4 in their entirety and annexure p-5 in respect to the period of amount due for april 1986 and may 1986 are liable to be quashed and i order accordingly. the question as to whether the petitioner was liable in his capacity as managing director of the company to pay the dues is left open for the very reason that it shall be a matter of evidence if the petitioner was the occupier of the company. with respect to the other complaints, the petition is silent as to the period to which they relate. the counsel can obviously take the necessary objection before the trial court or any other forum, if law so provides. with these observations and directions referred to above, the petition stands disposed of.

Judgment:
ORDER

G.S. Chahal, J.

1. S. K. Budhiraja who was the Managing Director of M/s. Avon Automotive Components Private Limited, Faridabad (for short the Company) has come to this Court in this petition under Section 482 Cr. P. C. read with Article 227 of the Constitution of India praying that the 62 complaints filed against the petitioner and pending in the Court of CJM, Faridabad, Additional CJM, Faridabad and Judicial Magistrate, Faridabad, may be quashed.

2. The petitioner has averred that the Provident Fund Commissioner has through the Provident Fund Inspector put in 6 complaints against the petitioner, with the purpose of prosecuting him for the offences under paragraph 38 of the Employees Provident Fund Scheme 1952 read with Sections 60, 14(1B) and 14A of the Act. These complaints are pending in different Courts. Copies of four complaints Annexures P-l, P-2, P 4 and P-5 have been attached. The order of the winding up of the company had been passed by the Delhi High Court vide Annexure P 3 and subsequent to the date of winding up of the company, the occupier was not under any liability to make the payment and the liability, if any, was of the Official Liquidator. That no notice had been served on the petitioner to specify as to the total amount of which he was liable.

3. Annexure P-3 is the order passed by the Delhi High Court in Company petition No. 102 of 1984 and the company was ordered to be wound up and the Official Liquidator was directed to proceed in accordance with law for taking possession of the property, the assets, statutory books and other account books of the company This order is dated May 15, 1986.

4. There is force in the contention of the learned counsel that in view of the provisions of Section 456 of the Companies Act, the Official Liquidator shall be deemed to have entered into possession of the properties of the company and having assumed charge of the company. Thereafter the liability to make the payment with respect to provident Fund rested with the Official Liquidator and no other person who at one time held any office in the company will be liable. The complaints Annexure P-l, P-2 and P 4 relate to the period June 1986 i.e. the period subsequent to the winding up of the company. Complaint Annexure P 5 relates partly to a period prior and partly to a period subsequently to the winding up of the company. The petitioner cannot be prosecuted with respect to the period beyond May 15, 1986. Since the dues relate to April 1986 became payable on May 15, 1986, it was the duty of the Official. Liquidator to make that payment and' the petitioner cannot be prosecuted for non-payment of the dues for April 1986 and May 1986.

5. Accepting the arguments of the learned counsel, Complaints Annexure P-1, P-2 and P-4 in their entirety and Annexure P-5 in respect to the period of amount due for April 1986 and May 1986 are liable to be quashed and I order accordingly. The question as to whether the petitioner was liable in his capacity as Managing Director of the company to pay the dues is left open for the very reason that it shall be a matter of evidence if the petitioner was the occupier of the company. With respect to the other complaints, the petition is silent as to the period to which they relate. The counsel can obviously take the necessary objection before the trial Court or any other forum, if law so provides. With these observations and directions referred to above, the petition stands disposed of.