Chattisgarh High Court

Manab Paul vs State Of Chhattisgarh on 18 June, 2021

                                             1


                HIGH COURT OF CHHATTISGARH, BILASPUR
                                         Order Sheet
                                 WPCR No. 288 of 2021

1. Manab Paul, S/o Late Satyendra Nath Paul, aged about 54 years, R/o D-5/21,
   Gayatri Nagar, Shankar Nagar, Raipur (C.G.)
2. Manoj Mishra, S/o Shri Vijay Mishra, aged about 58 years, R/o Gayatri Nagar,
   Akash Nagar, Shankar Nagar, Raipur (C.G.)                 ---- Petitioners
                                          Versus
1. State of Chhattisgarh, through its Secretary Ministry of Home, Mahanadi
   Bhawan, Capital Complex, Naya Raipur, District- Raipur (C.G.)
2. The Station House Officer, Police Station- Koni, Bilaspur, District- Bilaspur(C.G.)
3. Sanjay Kumar Patle, S/o Shri Jageshwar Patle, aged about 28 years, R/o
   Birgahni, Jarhagaon, Mungeli (C.G.) Mobile No. 7974893179
4. Anil Kumar Baghel, S/o Shri Ranjeet Singh Baghel, R/o MIG-A43, Sagardeep
   Enclave, Phase-2 Ameri, Bilaspur (C.G.) Mobile No. 6261550066
                                                                         ---- Respondents

18.06.2021 Mr. B.P. Sharma, counsel for the petitioners.

Mr. Sudeep Verma, Dy. Govt. Advocate for the State/ respondent No. 1 & 2.

None for respondent No. 3 though served.

Mr. Rohit Sharma, counsel for respondent No. 4.

Heard on I.A. No. 01/2021, application for grant of ad-interim relief.

The present order will dispose of application for grant of interim relief of protection of personal liberty of the petitioners by an appropriate order and issuing an order directing respondent No. 2 not to take any coercive action against the petitioners in pursuance of FIR No. 0070/2021 dated 07.04.2021 (Annexure P/1) registered against them at Police Station- Koni, District- Bilaspur (C.G.)

The brief facts, as projected in the writ petition, are that petitioner

No. 1 is an ex-service man and Director of Company styled as "Ideas INC Management Pvt. Ltd., Raipur " which provides security services, third party manpower outsourcing (Housekeeping and skill manpower supply), IT related to engineering services to various companies/ department as per the requirement of the respective companies.

It is contended by learned counsel for the petitioners that due to due to ongoing pandemic situation, they have suffered financial constrain, therefore, provident fund contribution of their employees could not be deposited with the Provident Fund Authorities. The union has made certain complaint for non-payment of wages and bonus. The Trade union namely All India Central Council of Trade Unions vide its letter dated 30.11.2020 to the Regional Labour Commissioner(Central ) , has demanded that the employees are not being paid minimum wages, pay slip or other service benefits. It has also been contended in the letter dated 30.11.2020 that company is not depositing complete contribution of its employees, therefore, direction in this regard be issued. In pursuance of the complaint, the Regional Labour Commissioner(Central) has started proceeding and fixed the joint meeting on 08.01.2021.

It is further contended that from perusal of FIR and the complaint raised by respondent No. 4, no case for committing offence under Section 420 of I.P.C. has been made out.

Learned counsel for the petitioners would submit that respondent No. 4, who was Director of the company, whose resignation has been accepted by the Board of Director on 20.11.2020 has instigated the employee respondent No.3 of the company to file a complaint against them, therefore, on instigation by respondent No. 4, FIR is registered which is liable to be quashed by this Court . It is further submitted that the present FIR has been lodged due to private and personal grudge of respondent No. 4 by instigating complainant.

In view of judgment rendered by Hon'ble the Supreme Court in case

of Bhajan Lal Vs. State of Haryana, reported in 1992 SC (Suppl.) (1) 335 learned counsel for the petitioners has drawn attention of this Court towards paragraph 1 to 7 of the judgment. It is further submitted that the director of the company cannot be held responsible for committing offence under Section 420 & 34 of I.P.C. The police has seized the account at the instance of one person, therefore, it is not possible for them to pay salary of other hundred of the employees. The Police is not authorized to seize the bank account. The incident is of the year 2016 whereas, FIR has been lodged in the year 2021 as such , it is hopelessly delayed about five years. On this count also, the FIR deserves to be quashed. The complaint was lodged before the university, whereas Anil Kumar Baghel is not an employee of the university, therefore, the present FIR has been registered due to personal grudge. As per provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 as well as the Negotiable Instrument Act, the Director cannot be prosecuted, as such also, the present FIR should have not been registered against them therefore petitioners are entitled to get interim protection from this Court.

This Court vide its order dated 17.05.2021, has issued notice to respondent No. 3 & 4. Respondent No. 3 though served, but not appeared before this Court at the time of hearing on the application for interim relief, whereas, respondent No. 4 appeared and would submit that the petitioner No. 1 & 2 have filed anticipatory bail applications bearing MCRCA No. 735/2021 & 734/2021 respectively. Both the bail applications have been rejected by Fifth Additional Sessions Judge, Bilaspur vide its order dated 20.05.2021. He would further submit that he will place on record the material through its return.

Learned counsel for the petitioner as well as learned Counsel for respondent No.1, 2 and 4 have been heard on application for grant of interim relief at length.

Before considering the facts of this case, it is necessary to examine contents of the FIR, which are extracted below

"vkosnd lat; dqekj ikVys firk tkxs'oj ikVys] mez 28 o"kZ] fuoklh& xzke fcjxguh Fkkuk tjgkxako] ftyk eqaxsyh] gk-eq- vkbZfM;k bad eSustesaV izk-fy- daiuh esa lqj{kk xkMZ us ,d fyf[kr vkosnu daiuh ds Mk;jsDVj ekuc iky ,oa eukst feJk ds }kjk iz/kku fu;ksDrk ls izkIr jkf'k dk tkylkth] /kks[kk/kM+h] dwVjpuk vkSj vkijkf/kd lkft'k ds rgr djksM+ksa :Ik;s dh jkf'k xcu vkSj ?kksVkyk djus ds laca/k esa is'k fd;k] vkosnu i= ij izFke n`'V;k vijk/k /kkjk& 420] 34 Hkknfo dk vijk/k ?kfVr gksuk ik;s tkus ls vijk/k iathc) dj foospuk esa fy;k x;k] udy vkosnu tSy gS& izfr] Jheku Fkkuk izHkkjh egksn;] Fkkuk dksuh] fcykliqj fo"k; vkbZfM;kt bad eSustesaV izk-fy- ds }kjk iz/kku fu;ksDrk izkIr /kujkf'k dk tkylkth /kks[kk/kM+h dwVjpuk vkSj vkijkf/kd lkft'k ds rgr djksM+ks :Ik;s dh jkf'k xcu vkSj ?kksVkyk ds laca/k esa izdj.k ntZ djus gsrq egksn; fuosnu gS fd eSa lat; dqekj ikVys firk Jh tkxs'oj ikVys] mez 28 o"kZ] fuoklh&xzke fcjxguh] Fkkuk tjgkxako] ftyk eqaxsyh dk fuoklh gwa vkbZfM;kt bad eSustesaV izk-fy- daiuh esa o"kZ 2016 ls lqj{kk dehZ ds in ij fu;qDr gksdj xq:?kklhnkl fo'ofo|ky; dksuh esa M~;wVh dj jgk gwaA eq>s izkIr osru 10][email protected]& :Ik;s vius cSad [kkrs esa izkIr djrk gwa o esjk Hkfo"; fuf/k ¼ih-,Q-½ o chek dh dVkSrh dHkh gksrh gS vkSj dHkh ugh gksrh] eq>s o esjs tSls yxHkx 300 deZpkfj;ksa dks fu;qfDr fnukad ls vkt fnukad rd u rks dEiuh ds }kjk fu;qfDr i= o ekfld osru iphZ ugh fn;k tkrk gS] ftldh f'kdk;r dbZ ckj fo'ofo|ky; iz'kklu o dEiuh ds lapkydksa ls dh ij dksbZ tkudkjh izkIr ugh gqbZ] fdUrq dqN fnuksa iwoZ dEiuh ds }kjk u;s lapkyd vfuy dqekj c?ksy dh fu;qfDr fo'ofo|ky; esa dh xbZ] tc ge lHkh deZpkfj;ksa }kjk osru Hkqxrku o vU; dbZ leL;kvksa dks ysdj u;s lapkyd egksn; vfuy dqekj c?ksy ls fo'ofo| ky; ifjlj esa feys rc igyh ckj gesa tkudkjh izkIr gqbZ fd gekjk ekfld osru ls gtkjksa :Ik;s ,Mokal o gtkjksa :Ik;s dk ih-,Q- ds uke ij dkVs tk jgs gS] tks geus dHkh izkIr ugh fd;s] ih-,[email protected],l-vkbZ-lh- dh jkf'k tks i=d esa fn[kk;k x;k gS mlls cgqr de dHkh&dHkh tek dh tkrh gS] vfuy dqekj c?ksy ds }kjk ,d ,Mokal jftLVj fn[kk;k x;k] ftls ns[kus ij ik;k x;k fd mlesa fd, x, gLrk{kj esjs o lHkh deZpkfj;ksa ds }kjk ugha fd;s x;s gS] cfYd QthZ :Ik ls gLrk{kj dj ,Mokal dh jkf'k dk Hkh xcu fd;k x;k gS] bl izdkj vkbZfM;kt bad izk-fy- dEiuh ds }kjk deZpkfj;ksa dks tks ikfjJfed vuqca/k ds rgr iznku fd;k tkrk gS] mDr jkf'k dks dEiuh }kjk QthZ rjhds ls vkgfjr dj deZpkfj;ksa dks mDr jkf'k dk vk/kk Hkqxrku fd;k tkdj djksM+ks :Ik;s dh dEiuh ds funsZ'kd ekuc iky firk Lo- lR;sUnz ukFk iky ,oa eukst feJk firk fot; dqekj feJk irk e-ua-&3] xk;=h uxj] vkdk'k uxj] 'kadj uxj] jk;iqj o ekuc iky dk irk Mh&[email protected] caxyk xk;=h uxj 'kadj uxj jk;iqj gS rFkk dEiuh dk irk 3] iEik Jh Vkoj ckWVy gkml ls vofUr fogkj jksM dfork uxj jk;iqj NRrhlx<+ ds }kjk fd;k tk jgk gS] ftl fnu ge lHkh deZpkfj;ksa dks vfuy dqekj c? ksy ds }kjk tkudkjh izkIr gqbZ gS] ml fnu ls dbZ ckj vfuy dqekj c?ksy ds lkFk fo'ofo|ky; iz'kklu o dEiuh ds funZs'kdksa ls bl laca/k esa fyf[kr f'kdk;r o gM+rky fd;k] fdUrq lek/kku djus ds ctk; fo'ofo|ky; ds ncko o dEiuh ds funsZ'kdksa ds } kjk dbZ deZpkfj;ksa dks Mjk;k] /kedk;k o ukSdjh ls fudkyus dk uksfVl fn;k o gekjk lkFk ns jgs rRdkfyd lapkyd vfuy dqekj c?ksy dks Hkh dwVjfpr nLrkost rS;kj dj dEiuh ds funs'kd in ls gVk fn;k x;k] tcfd mUgksusa eq>s crk;k fd mUgksusa us dHkh Hkh vius in ls bLrhQk ugha fn;k gS] d`Ik;k dEiuh ds funs'kdksa ekuc iky ,oa eukst feJk ds fo:) gekjs osru dh jkf'k] /kks[kk/kM+h dj gesa de iSls nsdj 'ks"k osru dh jkf'k vkgfjr dj Lo;a miHkksx djus ckcr~ vijkf/kd izdj.k ntZ djus dh d`ik djsaA " The contention of learned counsel for the petitioners that the Director cannot be held responsible to consider the same it is necessary to examine

Section 14(A) of The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short, "the Act, 1952") as well as para 76 of Employees Provident Fund Scheme 1955 which are extracted below

"Section 14-A. Offences by companies- (1) If the person committing an offence under this Act, the Scheme or the Pen- sion Scheme or the Insurance Scheme is a company, every per- son who at the time the offence was committed was incharge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be pro- ceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section 1 where an offence under this Act, the Scheme or the Pension Scheme or the Insurance Scheme has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any Director or Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other offi- cer shall be deemed to be guilty of that offence and shall be li- able to be proceeded against and punished accordingly. Explanation - For the purposes of this section, -

(a) "company" means any body corporate and includes a firm and other association of individuals; and

(b) "director" in relation to a firm, means a partner in the firm." Para 76 of the Employees' Provident Funds Scheme, 1955 reads as under:-

"76. Punishment for failure to pay contribution, etc If any person

-- (a) deducts or attempts to deduct from the wages or other remu- neration of a member the whole or any part of the employer's contri- bution, or (b) fails or refuses to submit any return, statement or other document required by this Scheme or submits a false return, state-

ment or other document, or makes a false declaration, or (c) obstructs any Inspector or other official appointed under the Act or this Scheme in the discharge of his duties or fails to produce any record for inspec- tion by such Inspector or other official, or (d) is guilty of contravention of or non-compliance with any other requirement of this Scheme, he shall be punishable with imprisonment which may extend to [one year, or with fine which may extend to four thousand rupees], or with both"

The petitioners in para 8.2 of the petition have clearly stated that the petitioners are Directors of the company and in the complaint, it has been specifically stated that the petitioners who are the Directors of the company have received money from principal employees and committed forgery and criminal offence by not paying to its employees , therefore, they have been arrayed as accused in this case. From memorandum of association of "Idea INC Co. Pvt. Ltd"., it is quite vivid that petitioner No. 2 is Managing Director and petitioner No. 1 is Director of the company, who are responsible for day to day operation of the company. The petitioners have nowhere stated that who are responsible for deduction of the EPF contribution of its employees Therefore it cannot be prima-facie held that petitioners are not responsible for non-depositing of E.P.F Contribution of its employees. Even otherwise contention raised by the petitioners in this petition may be their defence, which cannot be examined by this Court while hearing writ petition and its truthness can be tasted while recording of evidence only after completion of investigation .

Learned counsel for the petitioners submits that cause of action arose in the year 2016, whereas the FIR has been lodged in the year 2021. It is hopelessly barred as it has been filed after five years as non- depositing of EPF is continued offence . Hon'ble the Supreme Court in the case of Raja Bahadur Singh Vs. Provident Fund Inspector and others, reported in (1984) 4 SCC 222 has examined the provisions of the Act, 1952

and it has been held that non-deposit of provident fund contribution is continued offence. The Supreme Court considering the law on this subject has held in paragraph 21 & 22, which read as under:-

"21. For these reasons, we are of the opinion that the offence of which the appellants are charged, namely, non- payment of the employer's contribution to the Provident Fund before the due date, is a continuing offence and, therefore, the period of limita- tion prescribed by section 468 of Code cannot have any applica- tion. The offence which is alleged against the appellants will be governed by section 472 of the Code, according to which, a fresh period of limitation begins to run at every moment of the time during which the offence continues.

22. Before we close, we consider it necessary to draw atten- tion to the provision of section 473 of the Code which we have extracted above. That section is in the nature of an overriding provision according to which, notwithstanding anything con- tained in the provisions of Chapter XXXVI of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice. The hair-splitting argument as to whether the offence alleged against the appellants is of a continuing or non continuing nature, could have averted by hold- ing that, considering the object and purpose of the Act, the learned Magistrate ought to take cognizance of the offence after the expiry of the period of limitation, if any such period is appli- cable, because the interest of justice so requires. We believe that in case of this nature, Courts which are confronted with pro- visions which lay down a rule of limitation governing prosecu- tions, will give due weight and consideration to the provisions contained in section 473 of the Code."

It is well settled that a first information report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the

commission of a cognizable offence and that he must be convinced or satisfied that cognizable offence has been committed. From perusal of F.I.R, prima-facie it is reflected that investigation of offence is necessary and it cannot be installed at this juncture .

The Hon'ble Supreme Court in Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra & others, reported in AIR 2021 SC 1918, has examined the issue with regard to grant of interim protection, which reads as under:-

"13. While deprecating the grant of stay of investigation or trial by the High Courts, this Court in the case of Imtiyaz Ahmad (supra), in paragraphs 25 to 27, held as under:

"25. Unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common man's access to justice. A person's access to justice is a guaranteed fundamental right under the Constitution and particularly Article

21. Denial of this right undermines public confidence in the justice delivery system and incentives people to look for short cuts and other fora where they feel that justice will be done quicker. In the long run, this also weakens the justice delivery system and poses a threat to the rule of law.

26. It may not be out of place to highlight that access to justice must not be understood in a purely quantitative dimension. Access to justice in an egalitarian democracy must be understood to mean qualitative access to justice as well. Access to justice is, therefore, much more than improving an individual's access to courts, or guaranteeing representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable [see United Nations Development Programme, Access to Justice -- Practice Note (2004)].

27. The present case discloses the need to reiterate that "access to justice" is vital for the rule of law, which by implication includes the right of access to an independent judiciary. It is submitted that the stay of investigation or trial for significant periods of time runs counter to the principle of rule of law, wherein the rights and aspirations of citizens are intertwined with expeditious conclusion of matters. It is further

submitted that delay in conclusion of criminal matters signifies a restriction on the right of access to justice itself, thus amounting to a violation of the citizens' rights under the Constitution, in particular under Article 21."

After considering the submissions made by the petitioners and respondent No. 4, this Court is of the opinion that the petitioners are not entitled to get interim relief as prayed for in the application for grant of ad- interim relief.

Accordingly, I.A.No. 1 of 2021 is rejected. However, it is made clear that this Court has considered the submissions made by the parties for the purpose of deciding an application for grant ad-interim relief and same will not adversely affect the right of petitioners to defend themselves case of prosecution or private respondents at the time of final hearing of writ petition .