The Enforcement ... vs Thomas Joseph
2022 Latest Caselaw 7404 Ker

              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.
                      ------------------------------------------
                          Crl.Appeal No. 774 of 2007
                 -----------------------------------------------------
                    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

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

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

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,

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.

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