A. M. BHATTACHARJEE, J.

( 1 ) HAVING heard the learned Counsel for the parties, we are satisfied that these four revisional applications are to be allowed and the impugned orders of taking cognizance in the four criminal cases giving rise to these four revisional applications are to be quashed. These four revisional applications challenging the prosecutions launches under the provisions of S. 14 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereafter, 'employees' Provident Funds Act' for short), involving common questions, have been heard together and are being disposed of by this common judgement.

( 2 ) THE offences alleged in the relevant complaints are "failure to pay" the contributions and administrative charges payable under the provisions of the Employees' Provident Funds Act, 1952 and the Employees' Provident Funds Scheme framed thereunder. It has not been disputed by Mr. Nandi appearing for the accused petitioners that the amounts payable were not paid within time prescribed; but he has alleged that all these amounts were duly paid long before the prosecutions have been initiated and in support of his contention, Mr. Nandi has drawn our attention to the copies of the relevant Chalans annexed with the revisional applications and has also produced the original Chalans before us in Court. Mr. Biswas appearing for the respondent 1 and Mrs. Mitra appearing for the State have also not disputed such payments prior to the institution of the relevant complaints. Mr. Nandi has accordingly urged that the amounts payable having already been paid before the prosecutions were initiated, those were not maintainable under the law and Mr. Nandi has mainly relied on a single Judge decision of this Court in Hooghly Docking and Engineering Co. v. Inspector Employees' Provident Fund (1980) 1 Cal HN 280 in support of his contention.

( 3 ) WE have not been able to agree to accept this contention if "failure to pay within the prescribed time" is an offence under the Act and the Scheme, and there has been such a failure to payin time, any later payment, even though before any prosecution for the offence has been initiated cannot, by itself, in law stand in the way of the prosecution. It can be a mitigating circumstance, a relevant factor to be taken into consideration in determining the sentence, but not a one to forestall prosecution and conviction.

( 4 ) WE have examined the single Judge decision in Hooghly Docking and Engineering Co. (1980-1 Cal HN 280) (supra) and have not been able to regard the same to be an authority for that broad a proposition that even though failure to pay within time prescribed is an offence, any delayed but pre-prosecution payments would debar a prosecution. The case in Hooghly Docking and Engineering Co. (supra) had peculiar facts of its own, where on its failure to pay the Provident Fund dues, the Company proposed in writing to the Regional Provident Funds Commissioner to clear up all the arrears in instalments so that all the pending prosecutions for non-payment of dues are dropped. It appears further that the Commissioner informed the Company by a letter that the Government had agreed to accept such payment as proposed, but that though the Company thereafter continued to pay the arrears in accordance with that agreed proposal, the criminal prosecutions were nevertheless proceeded with. The Company then moved this Court under Art. 226 of the Constitution and the learned Judge, after taking into consideration, among others, that the Company "had been sustaining losses in its business", that its "available working fund was completely depleted" and that it was nevertheless going on paying the arrears regularly in accordance with the terms agreed, and that by the time the Rule came up for hearing before this Court, "the entire amount of arrears had been paid up and had been accepted by the Respondents" according to the terms agreed between the parties, thought that "it will not he in

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