IMPORTANT POINT
The liability of the employer and the transferee, the interpretation of contractual clauses, and the continuing nature of the offense under Section 468 of the Cr.P.C. were crucial in determining the validity of the prosecution.

ORDER :

(Common Prayer: Criminal Original Petitions are filed under Section 482 of the Code of Criminal Procedure, to call for the records relating to the proceedings in C.C.Nos.77, 78, 81, 80, 79 and 82 of 2005 dated 05.06.2012 on the file of the learned Judicial Magistrate, Rajapalayam and quash the same.)

1. All the Criminal Original Petitions have been filed to quash the proceedings in C.C.Nos.77, 78, 81, 80, 79 and 82 of 2005, dated 05.06.2012 on the file of the learned Judicial Magistrate, Rajapalayam.

2. Heard Mr.N.Manoharan, for Mr.R.Niresh Kumar, learned counsel appearing for the petitioners and Mr.K.Murali Sankar, learned counsel appearing for the respondent.

3. The learned counsel appearing for the petitioners would vehemently contend that the respondent has initiated the criminal prosecution under Sections 14(A) and 14(1-A) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952(hereinafter referred to as “the Act”) for the alleged dues of the provident fund contribution for the period from October 2001 to March 2002. It is the specific contention of the learned counsel for the petitioners that they have leased out the mill to M/s.Sree Preethi Spinners under leave and license agreement dated 20.11.2000 and that such leave and license agreement was informed to the respondent through Form No.5A. Therefore, contended that by virtue of Section 14(A) of the Act, the prosecution can be initiated only against the persons, who was in-charge and responsible to the day to day activities of the company. Whereas the petitioner company is now under active management and under the control of one M/s. Sree Preethi Spinners, Dindigul, therefore, he would contend that the very cognizance taken by the learned Judicial Magistrate against this petitioner is abuse of process of law and liable to be quashed.

4. It is the further contention of the learned counsel for the petitioner that the punishment for the offence under Section 14(A) of the Act may extent upto 3 years, whereas the cognizance was taken by the learned Magistrate beyond the period of limitation. Hence, according to the petitioner, the complaint even otherwise barred by limitation under Section 468 of Cr.P.C.

5. In support of his contention, the learned counsel appearing for the petitioners relied upon the following judgments:

(i) In Neyveli Lignite Corporation Limited Vs. The Regional Provident Fund Commissioner and Ors., reported in 1997 (1) MLJ 164.

(ii) In Annie Thomas-Vs-The Assistant Provident Fund Commissioner and Ors., reported in Manu/KE/0608/2004.

(iii) In Transport Corporation of India Ltd., and Ors. Vs. R.M.Gandhi and Ors., reported in 1991 Mh LJ 1055.

(iv) In Kailashkumar Radhakrishnan Kanoria & Ors., Vs. State of Gujarat, reported in 2005 (1) MhLJ 1166.

(v) In S.Sampath Kumar Vs. The State of Maharashtra, reported in 2005 (1) MhLJ 1166.

(vi) In Momtaz Begum Vs. The State, reported in AIR 1962 Cal 202.

6. Per contra, the learned counsel for the respondent would contend that, though the mill was leased to one M/s.Sree Preethi Spinners, still under Section 17(B) of the Act, the liability of the employer and the person to whom the establishment is so transferred is jointly and severally liable. Therefore, the cognizance taken by the learned Magistrate is well within the parameters of the law. The learned counsel would further contend that the petitioners have suppressed very many facts before this Court as they have already moved the discharge application before the concerned Magistrate in Crl.M.P(MD)No.8867 of 2009 and five other petitions in all the six complaints, which were dismissed by the learned Judicial Magistrate and that against which, the petitioners also preferred the revision in Crl.R.P.No.13 of 2012, and 5 other revisions, which were also dismissed by the District and Sessions Judge, Virudhunagar. However, without disclosing all these facts and without taking appropriate recourse, the filing of the instant quash application, that too with inord