Thalassery Municipality v. State of Kerala and N. Rajan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940** ## **Crl.MC.No. 2916 of 2014** **AGAINST THE PROCEEDINGS IN CC NO.2021/2013 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THALASSERY** ## **PETITIONERS/ACCUSED NOS.1 TO 3:** **1 THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, POST THALASSERRY, KANNUR DISTRICT, PIN-670101. 2 T.P.SATHEESAN, S/O.PARAMESWARAN, SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT, PIN-670101. 3 AAMINA MALIYEKKAL, W/O.HAMEED, CHAIRPERSON, THALASSERY MUNICIPALITY, POST THALASSERY, KANNUR, PIN-670101. BY ADV. SRI.I.V.PRAMOD** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN-682031. 2 N.RAJAN, AGED 60 YEARS, S/O.GOVINDAN, THALASSERY MUNICIPALITY SANITARY WORKER, KUNIYIL VEEDU, CHIRAKKARA ROAD, KUTTIMAKKUL, THIRUVANGAD P.O., THALASSERY, PIN-670103.** **BY ADV. SRI.R.SURENDRAN** ## **OTHER PRESENT:** ## **R1 BY PUBLIC PROSECUTOR SMT. K. SHEEBA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC:2916/2014 2 ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioners herein are the accused Nos.1 to 3 in C.C. No.2021 of 2013 on the file of the Judicial First Class Magistrate Court, Thalassery. In the aforesaid case, they face indictment under Section 406 r/w. Section 34 of the IPC. 3. The 2[nd] respondent herein was a sanitary worker in the Thalassery Municipality. He retired from the service on 30.11.2013. According to him, the petitioners had collected his contribution towards Provident Fund, repayment of Provident Fund loan and payment towards LIC premium from his salary and failed to remit the amount with the authorities concerned. Stating these allegations, a complaint was lodged before the learned Magistrate, which was taken cognizance of by the court below by Annexure-A2 order. 4. The learned counsel appearing for the petitioners submitted that the ingredients of the offence under Section 406 of CRL.MC:2916/2014 3 the IPC are not made out in the instant case. According to the learned counsel, the Thalassery Municipality was facing financial stringency and they were not in a position to pay the wages of its employees. The amounts, which were to be remitted towards contribution to the Provident Fund, were thus diverted for payment of wages. The petitioners have not committed any willful default is the submission. It is further submitted that before taking cognizance, the learned Magistrate ought to have appreciated that the accused Nos. 2 and 3, being public servants and the allegations having direct connection with their discharge of official duties, sanction under the relevant provisions of the Municipality Act were to be obtained. 5. The learned counsel appearing for the 2[nd] respondent has refuted the submissions. It is submitted that the order of cognizance taken by the learned Magistrate would reveal that the amount due to Provident Fund arrears had only been remitted upto August, 2011. However, contribution was deducted from the salary of the employee till February, 2013. There are _prima facie_ materials showing the complicity of the accused and in that view CRL.MC:2916/2014 4 of the matter, this Court will not be justified in quashing the proceedings. The learned counsel would also rely on the decision of this Court in **T.P.Satheesan and Others v. State of Kerala and Others** [2007 (4) KHC 666] and it is contended that Section 548 of the Municipalities Act will not have any application in the facts and circumstances of this case. It is further contended that there is no question of obtaining sanction under Section 197 of the Cr.P.C. as the act committed by the petitioners has no nexus with the discharge of official duties. 6. Heard the learned Public Prosecutor as well, who supported the contentions of the 2[nd] respondent. 7. I have considered the submissions advanced. Having gone through the materials on record, it is undisputed that the share of contribution to the Provident Fund as well as certain amounts due to be paid towards loan arrears of the LIC were not paid though the same was deducted from the salary of the 2[nd] respondent. As held by this Court, the sanction contemplated under Section 548 of the Municipalities Act are related to acts of CRL.MC:2916/2014 5 commission or omission which are considered as offences under the Municipalities Act. This Court in **T.P.Satheesan** (supra) has held that only for prosecution for the offences or for any other act of commission or omission which is considered as an offence under the Municipalities Act or the Rules framed thereunder would require previous sanction of the Government under Section 548 of the Municipalities Act be required. 8. I am unable to accept the contention of the learned counsel appearing for the petitioners that Section 406 of the IPC will not be attracted. Explanation 1 of Section 405 of the IPC clearly provides that an employer, who deducts employees contribution from the wages payable to the employee for credit to a provident fund or family pension fund established by any law shall be deemed to have entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said fund in violation of the said law, he shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. CRL.MC:2916/2014 6 9. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is, as to whether uncontroverted allegations as made in the complaint establish the offence. While exercising powers under Section 482 of the Code, this Court will have to refrain from analysing the materials which are yet to be adduced and seen in their true perspective. Power is to be used sparingly only in rare cases and should not be exercised to stifle a legitimate prosecution. I refrain from passing opinion on the merits of the allegations at this stage, lest it affects the case of either the prosecution or the accused. 10. From the perusal of the materials on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the petitioners. All the submissions made at the Bar relate to disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 of the Code. At this stage, only _prima facie_ case is to be seen in the light of the law laid down by Hon’ble Supreme Court in case of **R.P. Kapur v. State of Punjab** (AIR 1960 SC 866), **State of Haryana v.** CRL.MC:2916/2014 7 **Bhajan Lal** (1992 SCC (Cr) 426), **State of Bihar v. PP Sharma** [1992 SCC (Cr.) 192], **Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another** [2005 SCC (Cr.) 293] and more recently in **Tilly Gifford v. Michael Floyd Eshwar and Another** (AIR 2017 SC 3823). In view of the settled precedents, I see no justification in interfering with the proceedings at this stage. This petition will stand dismissed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** KRJ //TRUE COPY// P.A. TO JUDGE CRL.MC:2916/2014 8 ## **APPENDIX** ## **PETITIONERS’ EXHIBITS:-** **ANNEXURE-A1:- A TRUE COPY OF THE COMPLAINT DATED 10.09.2013 PREFERRED BY THE 2ND RESPONDENT BEFORE JFCM, THALASSERY.** **ANNEXURE-A2:- A CERTIFIED COPY OF THE PROCEEDINGS DATED NIL IN CMP NO.3458/2013 OF JFCM, THALASSERY.** ## **RESPONDENTS’ EXHIBITS:-NIL**