IMPORTANT POINT
The special law governing Provident Fund contributions prevails over the general law, and the absence of mens rea can be a decisive factor in determining criminal liability.

JUDGMENT :

1. Heard Mr. A.K. Choudhury, learned counsel for the petitioners. Also heard Mr. N.C. Das, learned Senior Counsel, assisted by Ms. J. Baishya, learned counsel for the respondents.

2. This criminal petition has been registered on filing of an application under Section 482 of the Code of Criminal Procedure, 1973, by the petitioners, namely, 1. Shiv Kumar Kanoi and 2. Ranjit Kumar Nath praying for quashing of the First Information Report dated 27.09.2011 filed by one Nirmal Roy Choudhury, Fund Control Officer, Assam Tea Plantations Provident Fund & Pension Fund Scheme, Karimganj before the Officer-In-Charge of Katigorah Police Station on the basis of which Katigorah Police Station Case No. 437/2011 was registered under Section 406/34 of the Indian Penal Code. The petitioners have also prayed for quashing of the entire proceeding which arose out of the aforesaid FIR.

3. It is pertinent to mention herein that by order dated 18.11.2011 passed by this court, the investigation of Katigorah Police Station Case No. 437/2011 was stayed by this court during the pendency of the instant criminal petition.

4. The facts relevant for consideration of the instant criminal petition, in brief, are as follows:-

i. that the petitioner No. 1 is the Director of Sree Kamakhya Tea Company Pvt. Ltd. incorporated under the Companies Act, 1956. The said tea company is the owner of two Tea Estates situated in Assam, namely Manohari Tea Estate, Dibrugarh and Craigpark Tea Estate, Kalain, under Katigorah Police Station.

ii. the petitioner No. 2 is the Manager of Craigpark Tea Estate, Cachar.

iii. the respondent No. 2, Nirmal Roy Choudhury, who is the Fund Control Officer, Office of the Board of Trustees of Assam Tea Plantations Provident Fund and Pension Fund Scheme, Karimganj, Cachar had lodged an FIR on 27.09.2011 before the Officer-in-Charge of Katigorah Police Station, inter-alia, alleging that the employer of Craigpark Tea Estate (C/27) in the District of Cachar, Assam have failed to deposit the Provident Fund contribution amounting to Rs. 26,63,682.12 (Rupees Twenty six lakhs sixty three thousand six hundred and eighty two and twelve paise only) for the period with effect from 05.11.2006 to 05.02.2011 .

iv. It is alleged in the FIR that the employer of Craigpark Tea Estate have failed to deposit the collected Provident Fund contribution though it has been deducted from the wages of the workers.

v. It is also alleged that by not depositing the collected Provident Fund contribution and their matching contribution the employers of Craigpark Tea Estate have committed offence of criminal breach of trust and misappropriation and therefore a prayer has been made in the FIR to prosecute the present petitioners under Section 403/405/406/408/409 of the Indian Penal Code.

5. Mr. A.K. Choudhury, learned counsel for the petitioners, has submitted that on 07.09.2010, the petitioner No. 2, who is the Manager of Craigpark Tea Estate, wrote a letter to the Chairman of the Office of the Board of Trustees, the Assam Tea Plantations Provident Fund and Pension Fund Scheme and Direct Linked Insurance Fund Scheme, Guwahati that due to unprecedented crisis faced by the Tea Estate for various reasons like falling price of the tea, rising cost of essential commodities like fuel, electricity, petroleum products etc. and due to the fact that garden has suffered from drought, uneven distribution of rainfall, the petitioners company could not deposit the contribution to Provident Fund in time and prayed for allowing the delayed deposit by the petitioners.

6. It is also submitted that in response to the aforesaid letter, the Secretary-cum-Provident Fund Commissioner, Board of Trustees allowed the petitioners company to deposit the arrear (uncovered) Provident Fund dues amounting to Rs. 22,17,890.02 (Rupees Twenty two lakhs seventeen thousand eight hundred ninety and two paise only) payable for the period from 05.11.2006 to 31.07.2010 in 24 monthly installments with effect