An offence committed under the Employees' Provident Funds and Family Pension Fund Act, 1952 and the Scheme is not a continuing offence.

P. C. Borooah, J.: The petitioners in all these Rules are being prosecuted In the court of the Metropolitan Magistrate, 7th Court, Calcutta under the provisions of Ss. 14 (1A), 14 (2), 14A (1) and 14AA of the Employees' Provident Funds and Family Pension Fund Act, 1952 read with para 78 (b) of the Employees' Provident Funds Scheme (hereinafter the Act and the Scheme) on the basis of complaints filed by the Provident Fund Inspector, West Bengal.

2. The common question of law which arises in all these Rules is whether a complaint can be lodged and cognizance taken after a period of one year from the date of the alleged contravention of the aforesaid provisions of the Act and the Scheme?

3. According to the complaints the first petitioner along with petitioner Nos. 2, 3 and 4 who are its Directors had not paid the employer's and employees' share of the contributions and administrative charges for the different months which are the subject matter of the cases started against them.

4. In support of the Rules we have heard Mr. Bejoy Kumar Bhose. We have also permitted Mr. J. N. Ghose and Mr. D. K. Dutta to intervene as they are appearing on behalf of the petitioners in other Rules pending before us in which the aforesaid question of law also arises.

5. Mr. Bhose submitted before us that under S. 14 (2A) of the Act the maximum penalty provided for contravention or making a default in complying with any provisions of the Act is imprisonment which may extend to three months or with fine which may extend to rupees one thousand or with both. Therefore, under S. 468 (2) (b) of the Cr.P.C. 1973 (hereinafter the Code), no court can take cognizance of any offence committed under the Act after the lapse of a period of one year from the date of default or contravention. As such the complaint in the cases, which are the subject matter of the Rules, having been instituted more than one year after the payments become due, the cognizance taken by the learned Magistrate is without jurisdiction and has to be quashed.

6. Mr. J. N. Ghose submitted that under paragraph 38 of the Scheme the offence was complete on the expiry of file fifteenth day of the month following the month for which there was a default, and this default became a complete offence on and from the sixteenth day of the month, As such it was a continuing offence,

7. Mr. Dilip Kumar Dutta also submitted that under para 38 of the Scheme an employer is required within fifteen days of the close of every month to pay the necessary contributions and the administrative charges to the Fund. This according to Mr. Dutta clearly shows that if an employer makes any default and does not make the payments within fifteen days of the close of every month, on the sixteenth day the offence becomes complete and cannot be deemed to continue to be an offence from day to day. In support of his argument Mr. Dutta has referred to a decision of the Supreme Court in the case of State of Bihar v. Deokaran Nenshi AIR 197,3 SC 908: (1973 Cri LJ 347).

8. Mr. Dutta also drew our attention to S. 9 of the Employees' Provident Funds and Family Pension Fund (Amendment) Act, 1973 by which an explanation has been added to S. 405 I. P. C. and by which an employer is deemed to be a trustee in respect of the deductions made from the employees for credit to the Provident Fund or Family Pension Fund. In view of this amendment S. 405 I. P. C. Mr. Dutta's contention is that a defaulting employer becomes liable to prosecution under S. 406 or 409 I. P. C. and as such the default cannot be a continuing offence.

9. Mr. Birendra Nath Mitra, the learned Public Prosecutor, opposes these Rules. According to him an offence committed under the provisions of the Act and the Scheme is a continuing offence and, as such S. 472 of the Code is attracted and a fresh period of limitation shall begin to run throughout the period the offence continues. Mr. Mitra also submitted that by S. 9 of the 1973 Amendment Act an offence under the Act and the