K.M. Moideenkunhi v. State of Kerala and Enforcement Officer, Employees' Provident Fund Organisation

1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE8[TH]DAYOFJUNE2023/18THJYAISHTA,1945 ``` ## **`CRL.MC NO. 5931 OF 2022`** ``` AGAINSTTHEORDER/JUDGMENTINCC963/2016OFCHIEFJUDICIAL MAGISTRATE,KALPETTA,WAYANAD ``` ## **`PETITIONER/2ND ACCUSED:`** ``` K.M.MOIDEENKUNHI AGED52YEARS S/O.LATET.B.KUNHIMAHINHAJI,DIRECTORM/SELSTON TEAESTATELTD,KALPETTA,WAYANADDISTRICTRESIDING ATPADHURHOUSE,THEKKILPOST,THEKKILVILLAGE, - KASARGODETALUK,KASARGODEDISTRICT,PIN671318 ``` ``` BYADVS. T.A.UNNIKRISHNAN K.K.AKHIL T.SREELAKSHMIUNNIKRISHNAN ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM,PIN682031 ``` ``` 2ENFORCEMENTOFFICER EMPLOYEESPROVIDENTFUNDORGANIZATION,DISTRICT - OFFICE,CIVILSTATION,KALPETTA,WAYANAD,PIN 673121 ``` ## `BY ADV ABRAHAM P.MEACHINKARA` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 08.06.2023,ALONGWITHCrl.MC.5936/2022ANDCONNECTEDCASES, THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C Nos.5931 of 2022 & connected cases 2 ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE8[TH]DAYOFJUNE2023/18THJYAISHTA,1945 ``` ## **`CRL.MC NO. 5936 OF 2022`** ## **`AGAINST THE ORDER/JUDGMENT CC 968/2016 OF CHIEF JUDICIAL MAGISTRATE , KALPETTA`** ## **`PETITIONER/2ND ACCUSED:`** ``` K.M.MOIDEENKUNHI AGED52YEARS S/O.LATET.B.KUNHIMAHINHAJI,DIRECTORM/SELSTON TEAESTATELTD,KALPETTA,WAYANADDISTRICTRESIDING ATPADHURHOUSE,THEKKILPOST,THEKKILVILLAGE, - KASARGODETALUK,KASARGODEDISTRICT,PIN671318 BYADVS. T.A.UNNIKRISHNAN K.K.AKHIL T.SREELAKSHMIUNNIKRISHNAN ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM,PIN682031 2ENFORCEMENTOFFICER EMPLOYEESPROVIDENTFUNDORGANIZATION,DISTRICT - OFFICE,CIVILSTATION,KALPETTA,WAYANAD,PIN 673121 ``` ``` BYADVABRAHAMP.MEACHINKARA ``` ``` SRI.VIPINNARYANSR.PP,SRI.M.P.PRASHANTH., SRI.T.R.RENJITHSR.PP. ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 08.06.2023,ALONGWITHCrl.MC.5931/2022ANDCONNECTEDCASES, THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C Nos.5931 of 2022 & connected cases 3 ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE8[TH]DAYOFJUNE2023/18THJYAISHTA,1945 ``` ``` CRL.MCNO.5945OF2022 ``` ## **`AGAINST THE ORDER/JUDGMENT CC 965/2016 OF CHIEF JUDICIAL MAGISTRATE , KALPETTA`** ## **`PETITIONER/2ND ACCUSED:`** ``` K.M.MOIDEENKUNHI AGED52YEARS S/O.LATET.B.KUNHIMAHINHAJI,DIRECTORM/SELSTON TEAESTATELTD,KALPETTA,WAYANADDISTRICTRESIDING ATPADHURHOUSE,THEKKILPOST,THEKKILVILLAGE, - KASARGODETALUK,KASARGODEDISTRICT.,PIN671318 ``` ``` BYADVS. T.A.UNNIKRISHNAN K.K.AKHIL T.SREELAKSHMIUNNIKRISHNAN ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM.,PIN682031 2ENFORCEMENTOFFICER EMPLOYEESPROVIDENTFUNDORGANIZATION,DISTRICT - OFFICE,CIVILSTATION,KALPETTA,WAYANAD,PIN 673121 ``` ``` BYADVABRAHAMP.MEACHINKARA ``` ``` SRITRRENJITHSRPUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 08.06.2023,ALONGWITHCrl.MC.5931/2022ANDCONNECTEDCASES, THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C Nos.5931 of 2022 & connected cases 4 ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE8[TH]DAYOFJUNE2023/18THJYAISHTA,1945 ``` ## **`CRL.MC NO. 5947 OF 2022`** ## **`AGAINST THE ORDER/JUDGMENT CC 964/2016 OF CHIEF JUDICIAL MAGISTRATE , KALPETTA, WAYANAD`** ## **`PETITIONER/2ND ACCUSED:`** ``` K.M.MOIDEENKUNHI AGED52YEARS S/O.LATET.B.KUNHIMAHINHAJI,DIRECTORM/SELSTON TEAESTATELTD,KALPETTA,WAYANADDISTRICTRESIDING ATPADHURHOUSE,THEKKILPOST,THEKKILVILLAGE, - KASARGODETALUK,KASARGODEDISTRICT,PIN671318 ``` ``` BYADVS. T.A.UNNIKRISHNAN K.K.AKHIL T.SREELAKSHMIUNNIKRISHNAN ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM,PIN682031 2ENFORCEMENTOFFICER EMPLOYEESPROVIDENTFUNDORGANIZATION,DISTRICT - OFFICE,CIVILSTATION,KALPETTA,WAYANAD,PIN 673121 ``` ``` BYADVABRAHAMP.MEACHINKARA ``` ``` SRIMPPRASHANTHPUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 08.06.2023,ALONGWITHCrl.MC.5931/2022ANDCONNECTEDCASES, THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C Nos.5931 of 2022 & connected cases 5 ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE8[TH]DAYOFJUNE2023/18THJYAISHTA,1945 ``` ## **`CRL.MC NO. 6124 OF 2022`** ## **`AGAINST THE ORDER/JUDGMENT CC 966/2016 OF CHIEF JUDICIAL MAGISTRATE , KALPETTA`** ## **`PETITIONER/2ND ACCUSED:`** ``` K.M.MOIDEENKUNHI AGED52YEARS S/O.LATET.B.KUNHIMAHINHAJI,DIRECTORM/SELSTON TEAESTATELTD,KALPETTA,WAYANADDISTRICTRESIDING ATPADHURHOUSE,THEKKILPOST,THEKKILVILLAGE, - KASARGODETALUK,KASARGODEDISTRICT,PIN671318 ``` ``` BYADVS. T.A.UNNIKRISHNAN K.K.AKHIL T.SREELAKSHMIUNNIKRISHNAN ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM,PIN682031 ``` ``` 2ENFORCEMENTOFFICER EMPLOYEESPROVIDENTFUNDORGANIZATION,DISTRICT - OFFICE,CIVILSTATION,KALPETTA,WAYANAD,PIN 673121 ``` ``` BYADVABRAHAMP.MEACHINKARA ``` ``` SRITRRENJITHSRPUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 08.06.2023,ALONGWITHCrl.MC.5931/2022ANDCONNECTEDCASES, THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C Nos.5931 of 2022 & connected cases 6 ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE8[TH]DAYOFJUNE2023/18THJYAISHTA,1945 ``` ``` CRL.MCNO.6152OF2022 ``` ## **`AGAINST THE ORDER/JUDGMENT CC 967/2016 OF CHIEF JUDICIAL MAGISTRATE , KALPETTA`** ## **`PETITIONER/2ND ACCUSED:`** ``` K.M.MOIDEENKUNHI AGED52YEARS S/O.LATET.B.KUNHIMAHINHAJI,DIRECTORM/SELSTON TEAESTATELTD,KALPETTA,WAYANADDISTRICTRESIDING ATPADHURHOUSE,THEKKILPOST,THEKKILVILLAGE, - KASARGODETALUK,KASARGODEDISTRICT,PIN671318 ``` ``` BYADVS. T.A.UNNIKRISHNAN K.K.AKHIL T.SREELAKSHMIUNNIKRISHNAN ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM,PIN682031 ``` ``` 2ENFORCEMENTOFFICER EMPLOYEESPROVIDENTFUNDORGANIZATION,DISTRICT - OFFICE,CIVILSTATION,KALPETTA,WAYANAD,PIN 673121 ``` ``` BYADVABRAHAMP.MEACHINKARA ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 08.06.2023,ALONGWITHCrl.MC.5931/2022ANDCONNECTEDCASES, THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C Nos.5931 of 2022 & connected cases 7 ## **ORDER** The petitioner herein is the 2[nd] accused in C.C Nos.963/2016, 964/2016, 965/2016, 966/2016, 967/2016 and 968/2016 on the file of the Chief Judicial Magistrate, Kalpetta. The aforesaid case had arisen from a complaint lodged by the Enforcement Officer, Employees Provident Fund Organisation, under Section 14 of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. 2. In the complaint lodged before the learned Magistrate, a copy of which is produced as Annexure-1 in all these cases, it is stated that M/s.Elston Tea Estate Ltd., Kalpetta, is an establishment covered under EPF Act, 1952. It is stated that the 2[nd] accused was working as the Director of M/s. Elston Tea Estate Ltd., and he is the person who was in charge and responsible for the day-to-day conduct of the business of the company. It is further alleged that for the failure of the petitioner to pay EPF Contribution and administrative charges and also the Employees Deposit Linked Insurance Contribution for the period from November 2013 to January 2014 and from February 2014 to April 2014, proceedings were initiated and Crl.M.C Nos.5931 of 2022 & connected cases 8 thereafter, prosecution proceedings were instituted under Section 14A(1) and 14A(2) of the EPF Act, 1952. 3. The proceedings in the aforesaid crime are challenged by the petitioner on the ground that the continuance of proceedings is a clear abuse of process. 4. It is the case of the petitioner that it was due to stringent financial difficulties that the employer was not in a position to make the payment of the contribution within time. They contend that when coercive proceedings were initiated, the 1st accused Company approached this Court and filed separate writ petitions before this Court challenging the proclamation and attachment issued by the department. A learned Single Judge of this Court by Annexure II judgment dated 25.2.2016, took note of the fact that the entire arrears due together with interest is Rs.33,53,648/-, permitted the company to clear off the total arrears due in 10 equal monthly installments starting from 30.3.2016. This Court also ordered that the coercive steps which have been initiated by the Organisation pursuant to coercive notices shall be put on hold if the petitioner complies with the conditions in time. It is the case of the petitioner that in terms of the directions issued by this Court, the entire contributions were remitted by the petitioner herein. Crl.M.C Nos.5931 of 2022 & connected cases 9 5. As by the time the complaint had been lodged before the Court having jurisdiction, the petitioner approached the learned Chief Judicial Magistrate and filed a petition seeking discharge. However, the learned Magistrate by order dated 12.8.2021, rejected the request relying on the law laid down in **Mathew Jose and Another v. State of Kerala and another** (2017(2)KHC 186) 6. Sri.T A Unnikrishnan, the learned counsel for the petitioner, submitted that in terms of the directions issued by this Court in Annexure II judgment, the entire amount was remitted by the petitioner. According to the learned counsel, in that view of the matter, the continuance of proceedings is a clear abuse of process. 7.. Sri Abraham P Meachinkara, the learned counsel for the EPF, has vehemently opposed the submissions. According to the learned counsel, even if the entire amount is paid together with interest, the proceedings are not liable to be quashed. The learned counsel would refer to the law laid down in **Harihar Prasad Dubey v. Tulsi Das Mundhra** (1980)4 SCC 120, and it is argued that reduction and retention of contribution is the trust created by virtue of the very fact and, therefore, even if the amounts were deposited much later, this Court will not be justified in quashing the criminal proceedings. Reliance is also placed on the law laid down by this Court in Crl.M.C Nos.5931 of 2022 & connected cases 10 **V.S Ganeshan and Others v. State of Kerala and Others** (Crl.M.C No.3250 of 2016) and **Mathew Jose and another v. State of Kerala** (2017 (2) KHC 186) to substantiate his contention. 8. I have considered the submissions advanced and have perused the entire accounts. I find that the complaints which led to the initiation of prosecution were laid before the learned Magistrate by the Enforcement Officer in the year 2016. When coercive proceedings were initiated by the Organisation, the petitioner approached this Court seeking permission to remit the total accrued amount and this Court granted an opportunity to clear off the amount in installments. The direction issued by this Court was complied with in its letter and spirit. This fact is undisputed. 9. In **Adoni Cotton Mills Ltd. and Ors. v. Regional Provident Fund Commissioner and Ors.** [1995 (Suppl.) 4 SCC 580], in almost identical circumstances, the Hon’ble Supreme Court has quashed the proceedings taking note of the fact that the company had paid all the arrears of provident fund in respect of which prosecution was instituted. In ## **Provident Fund Inspector, Faridabad v. Jaipur Textile, Faridabad** [AIR 1987 SC 1738], the prosecution proceedings were quashed, taking note of the payment subsequently effected. However, it was made clear that the judgment was rendered in the peculiar facts and circumstances and Crl.M.C Nos.5931 of 2022 & connected cases 11 the same shall not be treated as a precedent. Of course, in **Mathew Jose** (supra), a learned Single Judge has taken the view that the quashment orders passed by the Apex Court were rendered in the facts and circumstances of that case and refused to quash the proceedings. I find that unlike in **Mathew Jose** (supra), the petitioner herein had approached this Court and it is in terms of the directions issued by this Court after hearing both sides that the amount was paid. In that view of the matter, I am of the view that this is a fit case wherein the proceedings can be terminated, taking note of the long pendency of the matter for about a decade and also the facts and circumstances. It is made clear that it is in view of the peculiar facts presented in this case that the proceedings are quashed, and the same shall not be treated as a precedent. These petitions are allowed. All further proceedings in C.C Nos.963/2016, 964/2016, 965/2016, 966/2016, 967/2016 and 968/2016 on the file of the Chief Judicial Magistrate, Kalpetta, are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C Nos.5931 of 2022 & connected cases 12 ## **`APPENDIX OF CRL.MC 5931/2022`** ``` PETITIONERANNEXURES ``` ``` AnnexureI ``` ``` TRUECOPYOFTHECOMPLAINTINCCNO. 963/2016OFCHIEFJUDICIALMAGISTRATE COURTKALPETTA,DATED6/11/2015 ``` ``` AnnexureII ``` ``` TRUECOPYOFTHEJUDGMENTDATED25/2/2016 INWPC7183/2016OFTHISHON'BLECOURT ``` ``` AnnexureIII ``` ``` TRUECOPYOFTHEPETITIONDATED5/11/2016 WHICHWASLATERNUMBEREDASCMP6192/2016 ``` ``` AnnexureIV ``` ``` TRUECOPYOFTHEORDERDATED12/8/2021IN CMP6192/2016INCC963/2016OFCHIEF JUDICIALMAGISTRATECOURTKALPETTA ``` Crl.M.C Nos.5931 of 2022 & connected cases 13 ## **`APPENDIX OF CRL.MC 5936/2022`** ``` PETITIONERANNEXURES ``` ``` Annexure1 ``` ``` TRUECOPYOFTHECOMPLAINTINCCNO. 968/2016OFCHIEFJUDICIALMAGISTRATE COURT,KALPETTADATED6/11/2015 ``` ``` AnnexureII ``` ``` TRUECOPYOFTHEJUDGMENTDATED25/2/2016 INWP(C)NO.7183/2016OFTHISHON'BLE COURT ``` ``` AnnexureIII ``` ``` TRUECOPYOFTHEPETITIONDATED5/11/2016 WHICHWASLATERNUMBEREDASCMP6212/2016 ``` ``` AnnexureIV ``` ``` TRUECOPYOFTHEORDERDATED12/8/2021IN CMP6212/2016INCC968/2016OFCHIEF JUDICIALMAGISTRATECOURTKALPETTA, WAYANAD ``` Crl.M.C Nos.5931 of 2022 & connected cases 14 ## **`APPENDIX OF CRL.MC 5945/2022`** ``` PETITIONERANNEXURES ``` ``` Annexure1 ``` ``` TRUECOPYOFTHECOMPLAINTDATED 6/11/2015INCCNO.965/2016OFCHIEF JUDICIALMAGISTRATECOURTKALPETTA ``` ``` AnnexureII ``` ``` TRUECOPYOFTHEJUDGMENTDATED25/2/2016 INWP(C)7183/2016OFTHISHON'BLECOURT ``` ``` AnnexureIII ``` ``` TRUECOPYOFTHEPETITIONDATED5/11/2016 WHICHWASLATERNUMBEREDASCMP6215/2016 ``` ``` AnnexureIV ``` ``` TRUECOPYOFTHEORDERDATED12/8/2021IN CMP6215/2016INCC965/2016OFCHIEF JUDICIALMAGISTRATECOURTKALPETTA, WAYANAD ``` Crl.M.C Nos.5931 of 2022 & connected cases 15 ## **`APPENDIX OF CRL.MC 6124/2022`** ``` PETITIONERANNEXURES ``` ``` Annexure1 ``` ``` TRUECOPYOFTHECOMPLAINTINCCNO. 966/2016OFCHIEFJUDICIALMAGISTRATE KALPETTA,DATED6/11/2015 ``` ``` AnnexureII ``` ``` TRUECOPYOFTHEJUDGMENTDATED25/2/2016 INWPC7183/2016OFTHISHON'BLECOURT ``` Crl.M.C Nos.5931 of 2022 & connected cases 16 ## **`APPENDIX OF CRL.MC 6152/2022`** ``` PETITIONERANNEXURES ``` ``` AnnexureI ``` ``` TRUECOPYOFTHECOMPLAINTINCCNO. 967/2016OFCHIEFJUDICIALMAGISTRATE COURTKALPETTA ``` ``` AnnexureII ``` ``` TRUECOPYOFTHEJUDGMENTDATED25/2/2016 INWPC7183/2016OFTHISHON'BLECOURT ``` Crl.M.C Nos.5931 of 2022 & connected cases 17 ## **`APPENDIX OF CRL.MC 5947/2022`** ``` PETITIONERANNEXURES ``` ``` AnnexureI ``` ``` TRUECOPYOFTHECOMPLAINTINCCNO. 964/2016OFCHIEFJUDICIALMAGISTRATE COURTKALPETTA,DATED6/11/2015 ``` ``` AnnexureII ``` ``` TRUECOPYOFTHEJUDGMENTDATED25/2/2016 INWP(C)7183/2016OFTHISHON'BLECOURT ``` ``` AnnexureIII ``` ``` TRUECOPYOFTHEPETITIONDATED5/11/2019 WHICHWASLATERNUMBEREDASCMP6216/2016 ``` ``` AnnexureIV ``` ``` TRUECOPYOFTHEORDERDATED12/8/2021IN CMP6216/2016INCCNO.964/2016OFCHIEF JUDICIALMAGISTRATECOURTKALPETTA, WAYANAD ``` Crl.M.C Nos.5931 of 2022 & connected cases 18