IMPORTANT POINT
Directors of a company cannot be prosecuted for non-deposit of provident fund contributions as the company itself is the principal employer responsible for such obligations.

JUDGMENT :

Ajay Kumar Gupta, J:

1. This instant Criminal Revisional application has been filed by the petitioners under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the proceedings of G.R. Case No. 3974 of 2013 arising out of Shakespeare Sarani (EB) Police Station Case No. 385 dated 31.10.2013 under Sections 406/409/34 of the Indian Penal Code pending before the learned Chief Metropolitan Magistrate, Calcutta in which a charge sheet No. 59/2014 dated 26.03.2014 under Sections 406/34 of the Indian Penal Code has also been submitted in connection with the aforesaid proceedings.

2. The factual matrix of the instant case leading to filing of this revisional application is as under:

2a. The petitioners are Directors of a Company named and styled as Infinity Lifestyle Pvt. Ltd. (previously known as “Omega Coaters Private Limited”, which subsequently known as “Infinity Decoratives Pvt. Ltd.”) which has its place of business having its registered office at 24, Park Street, Park Centre Building, Kolkata 700 016.

2b. A complaint was lodged by the opposite party no. 2 i.e. Sri Shyamal Kumar Auddy, Enforcement Officer, E.P.F.O., Sub Regional Office, 44 Park Street, Kolkata – 700 016 with the Deputy Commissioner of Police, Enforcement Branch, Kolkata dated 17.10.2013 which in turn filed with the Officer-in-Charge of Shakespeare Sarani Police Station with an allegation, inter alia, to the effect Infinity Lifestyle Private Limited (previously known as “Infinity Decoratives Pvt. Ltd.”) had deducted a sum of Rs. 31,061/-(Rupees Thirty One Thousand and Sixty One Only) from the salaries of its employees as Employees’ share of provident fund contribution for the month of August, 2013 but had failed to deposit the same and such fact came to the knowledge of the complainant in course of inspection on 17.10.2013. The petitioners were alleged to be persons who were responsible for conducting of business of the said company. Thus a prayer was made alleging criminal breach of trust and for initiating an FIR against the petitioners vide Shakespeare Sarani Police Station Case No. 385/2013 under Sections 406/409/34 of the IPC dated 17.10.2013 though the claims of the petitioners are that they are completely innocent and in no way connected with the commission of the alleged offences at all but have been falsely implicated in the instant case.

2c. Subsequently, after completion of investigation, the investigating officer submitted report in final form vide Charge Sheet No. 59/2014 dated 26.03.2014 wherein it was stated that a prima facie charge has been established against the petitioners punishable under Sections 406/34 of the Indian Penal Code.

2d. It is the contention of the petitioners that on 17.10.2013, the complainant visited the petitioners’ company and carried out an inspection under Section 13 of the EPF & MP Act, 1952 and due to alleged default in payment towards Employees’ contribution of Provident Fund for the month of August, 2013 amounting to a sum of Rs. 31,061/-was detected pursuant to which a notice was given to the Directors of the Company to make good the amount so defaulted.

2e. On the very same date i.e. 17.10.2013 without accorded any time to the petitioners to pay off the dues, the concerned provident fund officer forwarded a written complaint to the Deputy Commissioner of Police, Enforcement Branch, Kolkata for alleged offence for criminal breach of trust punishable under Sections 406/409 of the IPC.

2f. On 28.10.2013, the company complied with the notice given to them by paying off the dues vide Account Payee Cheque No. 993700 for Rs. 66,083/-drawn on United Bank of India, Park Street Branch, Kolkata – 700 016. On the next date i.e. 29.10.2013, the cheque paid to EPFO received due clearance and the same is reflected in the bank statement of the company’s account in United Bank of India and also from the combined challan dated 30th October, 2013.

2g. On 31.10.2013 i.e. the date of the receipt of the alleged default