IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
CRL.A NO. 774 OF 2007
(AGAINST THE JUDGMENT DATED 30.11.2006 IN C.C.NO. 911/1997 ON THE
FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA)
APPELLANT/COMPLAINANT:
THE ENFORCEMENT OFFICER(INSPECTOR, ALAPPUZHA
OFFICE OF THE REGIONAL PROVIDENT FUND COMMISSIONER,
BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI-682 017.
BY ADVS.
SRI.N.N. SUGUNAPALAN, SC, P.F.
SMT.T.N.GIRIJA SCEPF ORGANISATION
RESPONDENT/ACCUSED:
THOMAS JOSEPH, PROPRIETOR,
M/S.JOSE THEATRE,
ERAMALLOOR P.O., CHERTHALA,
ALAPPUZHA DISTRICT.
BY ADVS.
K.N.CHANDRABABU
PUBLIC PROSECUTOR
SRI.N.N SUGUNAPALAN S.R (S.C)
SMT.T.N.GIRIJA S.C
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.06.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Crl.Appeal No. 774 of 2007
C.S.SUDHA, J.
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Crl.Appeal No. 774 of 2007
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Dated this the 24th day of June, 2022
JUDGMENT
This Criminal Appeal under Section 378(3) Cr.P.C has been filed against the judgment dated 30.11.2006 in C.C.No.911/1997 on the file of the Judicial First Class Magistrate Court-II, Cherthala.
2. The appellant is the complainant in C.C.No.911/1997, filed alleging the violation of the provisions of Section 6 read with Sections 14 (1B) and 14(2) of the Act. The respondent herein is the accused in the said case. The court below acquitted the accused on the ground that the appellant/the complainant failed to establish the offences alleged. Hence the present appeal by the complainant. The parties in this appeal will be referred to as described in the proceedings before the court below.
3. According to the complainant, M/s Jose Theatre, Eramalloor is an establishment coming within the meaning of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (the Act) and that accused is the person-in-charge, responsible for the conduct of the 3 Crl.Appeal No. 774 of 2007 business of the said establishment. The accused was required to pay contributions every month under the Act in respect of the employees of the said establishment. However, he has failed to pay the contribution for the period from July to September 1990 and thus he has committed the offence punishable under Section 6C read with Sections 14(1B) and 14(2) of the Act. Hence the complaint.
4. The Court below took the case on file and issued summons to the accused. On the appearance of the accused before the court below, he was furnished with copies of the complaint and the relevant documents. Particulars of the offence under Section 14(1B) of the Act was read over and explained to the accused, to which he pleaded not guilty. The then Enforcement Officer was examined as PW1 and Exts.P1 to P10 were marked on the side of the complainant.
5. After close of the complainant's evidence, the accused when questioned under Section 313 Cr.P.C, denied the entire allegations raised in the complaint and submitted that the present false case has been filed against him only because he had refused to accede to the demand of the complainant for bribe. No defense evidence was adduced by the 4 Crl.Appeal No. 774 of 2007 accused. On a consideration of the oral and documentary evidence and after hearing both sides, the court below by way of the impugned judgment acquitted the accused under Section 255(1) Cr.P.C on the ground that the prosecution had failed to establish the offence alleged against the accused. Aggrieved, the complainant has come up in appeal.
6. Heard Smt. T.N Girija, the learned Standing Counsel for the appellant and Sri.K.N Chandra Babu, the learned counsel for the respondent.
7. The only point that raises for consideration in this appeal is- whether the order of acquittal passed by the court below suffers from any infirmity warranting an interference by this Court.
8. The accused before the court below contended that the establishment in question is not covered by the provisions of the Act. The complainant in order to establish the case, has relied on Ext.P4 which is a copy of the proceedings initiated under Section 7A of the Act against the accused. Apart from Ext.P4, which is only a copy, no other documents were produced by the complainant to establish the case against the accused. Hence the Court below found that the complainant 5 Crl.Appeal No. 774 of 2007 had not proved Ext.P4 inquiry proceedings by examining the Assistant Provident Fund Commissioner, who had conducted the inquiry. PW1, the then Enforcement Officer, when examined deposed that the inquiry proceedings as evident from Ext.P4 is based on a report submitted by the Enforcement Officer, who had filed the complaint in this case. However, the said report had also not been produced before the court below. The court below noticed that the accused had challenged Ext.P4 inquiry proceedings by filing Ext.P9 review petition under Section 7B(1) of the Act. However, PW1 when asked about Ext.P9 review petition, was unable to explain the position of Ext.P9 review petition. Therefore, the court below found that there was no evidence to show that the inquiry proceedings conducted under Section 7A had become final. As the complainant had not adduced reliable evidence to show that the establishment is covered under the provisions of the Act, the court below concluded that the prosecution has failed in establishing the case that the accused had committed default in the payment of dues under the Act and so the accused was found not guilty.
9. As noticed by the court below, Ext.P4 is only a photocopy, 6 Crl.Appeal No. 774 of 2007 which is inadmissible in evidence. Even if found admissible, the document which has not been proved by examining the author who prepared the same. Admittedly Ext.P9 is an application filed by the accused to review Ext.P4 order. The Enforcement Officer, who had filed the present complaint before the court below, has not been examined in this case. PW1, the Enforcement Officer who took charge subsequently deposed that the person who had filed the complaint has been dismissed from service on corruption charges. The specific case of the accused is that the present false case has been filed against him only because he refused the demand of the then Enforcement Officer for bribe. Ext.P4 order is based on a report of the then Enforcement Officer, who had filed the complaint. However, the report on the basis of which Ext.P4 order has been passed, has not been produced and the author of Ext.P4 also has not been examined. PW1 is also not sure as to the fate of Ext.P9 application for review submitted against Ext.P4 order. In such circumstances, it can only be held that the prosecution has failed to establish the offence alleged against the accused. Therefore, no grounds to interfere with the findings of the court below has been made out. 7 Crl.Appeal No. 774 of 2007 In the result, the appeal is found to be without any merit and hence the same is dismissed, confirming the order of acquittal of the accused by the court below.
Sd/-
C.S.SUDHA, JUDGE.
Jms/20.06