IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Shampa Dutt (Paul)

CRR 291 of 2023 Raj Kumar Kanoi & Ors.

Vs.

State of West Bengal & Anr.

For the Petitioners : Mr. Milon Mukherjee, Sr. Adv.

Mr. Biswajit Manna, Mr. S. P. Tewary, Mr. Debajit Kundu.

For the State : Mr. Aditi Shankar Chakraborty, Mr. Arjun Chowdhury.

For the P.F. Authority : Mr. Bhaskar Roy Mahapatra.

Hearing concluded on : 23.04.2025 Judgment on : 01.05.2025 Shampa Dutt (Paul), J.:

1. The present revision has been preferred praying for quashing of proceeding being Special Case No. 11/16 arising out of G.R. No.4641/2013 in connection with Mal Police Station Case No. 542/122013 dated 23.08.2013 under Section 406/409 of the Indian Penal Code filed in the Court of the Learned Chief Judicial Magistrate, Jalpaiguri and now pending in the Court of the Learned 2nd Additional District & Sessions Judge, Special Court, Jalpaiguri.

2. The petitioners are the Ex-Directors of M/S Kumlai Tea & Industries Ltd., owner of Kumlai Tea Estate having its registered office at 1, Ganesh Chandra Avenue, Kolkata - 700013 and its tea estate namely Kumlai Tea Estate, Post Office Mal, Police Station -Mal, District - Jalpaiguri, PIN –

735221.

3. The said Company is the owner of the said tea estate and the employer within the meaning of Section 2(i) of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952. The said company is covered by the Employees' Provident Fund & Miscellaneous Provisions Act, 1952, and has to pay provident fund dues under the provisions of the said Act in respect of the said tea estate.

4. The financial condition of the said company depends largely on the market conditions. If the market conditions are adverse the said company is unable to make payment of wages and other statutory dues. The company suffered primarily from high cost of labour and other inputs as also low price realisation of its product. However, payment of wages has been made first as a priority to make payment of wages, rations and other statutory dues. The provident fund payment is always made thereafter.

5. The said company has not defaulted in payment of wages. The said company has however, been unable to make timely payment of provident fund contribution towards the employees' share amounting to Rs.26,59,321/- for the period from December, 2012 to July, 2013 as it has been prevented by circumstances beyond its control from making payment of the said provident fund dues in time. However, the said company subsequently paid the total dues.

6. On submission of charge sheet the case is now pending as Special Case No. 11 of 2016 before the learned 2nd Additional District and Sessions Judge, Special Court, Jalpaiguri.

7. The company paid a sum of Rs.6,00,751/- towards the said employees' share. The provident fund authority issued a letter dated 31.01.2019 as regards the confirmation of the aforesaid payment of Rs.6,00,751/. Subsequently, the petitioners by two bank drafts dated 14.11.2018 and 06.02.2019 paid a sum of Rs.1,50,000/- and Rs.19,08,570/-towards the employees' share. Thus, a total sum of Rs.26,59,321/-(Rs.6,00,751/- + Rs.1,50,000/- + Rs.19,08,570/-) has been paid towards the said employees share of Rs.26,59,321/- for which the said F.I.R. was lodged.

8. The petitioners resigned from the directorship of the said company on and from 08.08.2013. The new directors submitted Form 5A before the provident fund authority in place of petitioners with effect from 08.08.2013. By an agreement dated 08.08.2013 followed by a letter dated 18.10.2012 the new management has taken all the liabilities of the said company including the arrear and current provident fund abilities and as such the petitioners are not liable for the aforesaid non-payment of the provident fund dues.

9. Mr. Mukherjee submits that it has been held by the Supreme Court in Employees' State Insurance Corporation vs. S. K. Agarwal & Ors. that in neither of the exp