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The Provident Fund Inspector Vs. N.S. Dayananda - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1980CriLJ161
AppellantThe Provident Fund Inspector
RespondentN.S. Dayananda
Excerpt:
.....additional standing counsel for the central government, argued that the offences complained of are continuing offences and, therefore, section 468 of the cr. bhagwan learned advocate appearing on behalf of the respondent, argued that the offences complained of are not continuing offences. 8. it is assumed for the sake of argument at this stage that the respondent had not complied with the provisions in paras 30(1) and 38(1) of the scheme as complained by the prosecution. it is hence clear that the petitioner had knowledge of the commission of the offences now complained, much prior to 7-9-1970. 9. section 468 of the cr. the punishment prescribed for committing the offences complained of is imprisonment for six months. it is one of those offences which arises out of a failure to obey or..........with. on every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. the distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. in the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.9. reg. 3 read with section 66 of the mines act makes failure to furnish annual returns for the preceding year by the 21st of january of the succeeding year an offence. the language of reg. 3 clearly indicates that.....
Judgment:

M.S. Nesargi, J.

1. This petition has come up for hearing before this Bench on a reference being made by Shri K. Bhimiah, J,. It is directed against the order dated 16-3-1977 passed by the Additional Munsiff and Judicial Magistrate First Class, Coorg at Mercara, in C. C. No. 541 of 1976, upholding the contention raised on behalf of the respondent under Section 468 of the Cr. P. C.

2. By a complaint filed on 15-9-1975, the petitioner prosecuted the respondent for having committed offences punishable in view of the provisions in paras 30(1) and 38(1) A of the Employees' Provident Fund Scheme, 1952 (hereinafter referred to as the 'Scheme') read with Sections 6 and 14(1) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'Act'). The complainant alleged that the respondent was an employer within the meaning of the Act and that he had failed to submit return and pay share of the contribution due from the employees for the periods relating to December, 1969, January, 1970 and February, 1970 within the time prescribed by law, namely, 15-1-1970, 15-2-1970 and 15-3-1970 and as such, had committed breach of the aforementioned provisions and, therefore, was guilty of the alleged offences.

3. The complaint was filed in the Court of the Chief Judicial Magistrate, Mercara and it was registered as C. C. No. 1261 of 1975. The Chief Judicial Magistrate issued process on 17-9-1975 and on the respondent appearing before him, recorded his plea on 24-11-1975. The case remained on the file of the Chief Judicial Magistrate till 22-9-1976 and thereafter it came to be transferred, evidently under the provisions of Section 192 of the Cr. P. C., to the Court of the Additional Munsiff and Judicial Magistrate First Class, Coorg at Mercara by 19-11-1976. When it was received on the file of the Additional Munsiff and J. M, F. C., it was re-registered as C. C. No. 541 of 1976.

4. A preliminary objection was raised on behalf of the respondent that the Chief Judicial Magistrate had no power to take cognizance of the offences in view of Section 468 of the Cr. P. C. and as such, the prosecution was incompetent.

5. It was argued on behalf of the prosecution that the offences involved Were continuing offences and as such the provisions of Section 468 of the Cr. P. C. were not applicable and, therefore, the preliminary objection raised by the respondent was not sound in law. The learned Additional Munsiff and J. M. F. C. sustained the objection rejecting the contention on behalf of the prosecution.

6. Sri S. A. Hakeem, learned Additional Standing Counsel for the Central Government, argued that the offences complained of are continuing offences and, therefore, Section 468 of the Cr. P. C. has no application. He relied on the decision in Akharbhai Nazarali v. Md. Hussain Bhai : AIR1961MP37 . Sri S. G. Bhagwan learned advocate appearing on behalf of the respondent, argued that the offences complained of are not continuing offences. He placed reliance on the decision of the Supreme Court in State of Bihar v. Deokaran Nenshi : 1973CriLJ347 , on the decision of the Calcutta High Court in M/s. Wire Machinery . v. State 1978 Cr LJ 839 and on the decision of this Court in Channabasappa v. State Criminal Revn. Petns. Nos. 243 and 244 of 1978 and in State of Karnataka v. Sheik Moulan Criminal Appeals Nos. 139 and 140 to 152 of 1978.

7. It is undisputed that the respondent is an employer within the meaning of the Act and he was liable to pay contribution as provided by the Scheme. Para 30(1) of the Scheme mandatorily prescribes that the employer shall, in the first instance, pay both the contribution payable by himself and also, on behalf of the member employed by him, directly or by or through a contractor. Para 38(1) of the Scheme lays down that every employer shall pay the contribution of an employee, after deducting from the wages, within fifteen days of the close of every month and also shall forward to the Commissioner within twenty five days of the close of the month a monthly consolidated statement in such form as the Commissioner may specify showing certain particulars provided therein.

8. It is assumed for the sake of argument at this stage that the respondent had not complied with the provisions in paras 30(1) and 38(1) of the Scheme as complained by the prosecution. The records of the case, particularly the one produced by the prosecution along with the complaint, disclose that an enquiry under Section 7A of the Act had been held by the concerned authority and an order was passed by the concerned authority on 7-9-1970 and that order determined the amount payable by the employer as contribution. It is hence clear that the petitioner had knowledge of the commission of the offences now complained, much prior to 7-9-1970.

9. Section 468 of the Cr. P. C. lays down that no cognizance of the offences categorised in Sub-section (2) can be taken by a Court. Sub-section (2) (to) provides a period of limitation of one year if the offence is punishable with imprisonment for a term not exceeding one year. The punishment prescribed for committing the offences complained of is imprisonment for six months. Therefore, if the offences in question are not continuing offences, Section 468 (2) (b) of the Cr. P. C. would come into play.

10. In the case of Akharbhai Nazarali v. Md. Hussain Bhai : AIR1961MP37 , H. R. Krishnan, J. has observed as follows in paras 12, 13 and 14 of his judgment:

(12) There is no doubt about this as a proposition; but this takes us to another question regarding the nature of the omission; whether the non-payment of contribution and non-submission of the return, in the manner provided in Paragraph 38, are offences that recur and continue every moment, till the payment is made and the returns are submitted, or whether they are complete on the 15th of the next month and do not continue after that. If these offences are continuing offences that are, as it were, being committed every moment till the payments are made and the returns submitted, they would be punishable after Oct. 1953.

(13) There is no direct authority available on, whether this non-payment of contributions and the non-submission of returns is, or is not, a continuing offence; but, it is clear that the pith and substance of paragraph 38 is that the contributions should be paid into the fund, and the return should be made to the Commissioner. While the fixing of a date does mean that the employer should pay into the fund and send to the Commissioner the returns by that date, it cannot mean that once the date is passed, the employer is relieved of his duty and there is nothing more to be done. On the contrary, the duty of the employer is in any event, to pay and to send the returns; otherwise, one will be ignoring the very purpose of the scheme.

(14) A similar question arose before the High Courts of Patna and Calcutta in connection with the construction of creches and bathrooms as provided in the Mines Creche Rules and the Coal Mines Pithead Bath Rules of 1946, The Management having omitted to construct these amenities within the time specified, it was prosecuted in those cases, after the lapse of the term before which prosecution should have been launched In both, the defence contended, that the prosecution would not lie after the expiry of the term; the prosecution urged, however, that the offence of omission to construct these amenities was a continuing one. In the Patna High Court, State v. Kunja Behari : AIR1954Pat371 (FB), there was a difference of opinion, the majority view being that it was a continuing offence and the prosecution was not barred by Section 42 of the Mines Act, which provided a limitation for such prosecutions. The matter is elaborately discussed in the Calcutta judgment, in G. D. Bhattar v. State : AIR1957Cal483 :The question whether an illegal omission is a continuing offence or not, can hardly be answered in summary manner without considering the nature of the duty imposed, and the object which the Legislature had in view in imposing the duty....The pithead baths and the mines creches are amenities required by the Legislature, first for the sanitation and health of the miners and the second for the proper care of the children of female miners ...without these, the miners could not be expected to preserve their health, and children of the female miners could not be properly looked after. The mere fact, therefore, that the specified dates within which the baths and the creches were required under the rules to be constructed, expired, cannot possibly mean that the duty of the owner ended with the expiry of the date. That duty still remains. It continues till the pithead baths and the creches are constructed as required by the rules. A continuing wrong or a continuing offence is, after all, a continuing breach of the duty which itself is continuing. If a duty continues from day to day, the non-performance of that duty from day to day is a continuing wrong.

11. It may be remembered that no provision similar to the one contained in Section 468 of the Cr. P.C. was under consideration in the said case.

12. The question as to what is a continuing offence has been gone into by the Supreme Court in the decision in State of Bihar v. Deokaran Nenshi : 1973CriLJ347 . The Supreme Court has laid down in paragraphs 5 and 9 as follows;-

5. Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.

9. Reg. 3 read with Section 66 of the Mines Act makes failure to furnish annual returns for the preceding year by the 21st of January of the succeeding year an offence. The language of Reg. 3 clearly indicates that an owner, manager etc., of a mine would be liable to the penalty if he were to commit an Infringement of the Regulation and that infringement consists in the failure to furnish returns on or before Jan. 21 of the succeeding year. The infringement, therefore, occurs on January 21 of the relevant year and is complete on the owner failing to furnish the annual returns by that day. The Regulation does not lay down that the owner, manager etc., of the mine concerned would be guilty of an offence if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of Reg. 3 is complied with,. In other words Reg. 3 does not render a continued disobedience or non-compliance of it an offence. As in the case of a construction of a wall in violation of a rule or a bye-law of a local body, the offence would be complete once and for all as soon as such construction is made a default occurs in furnishing the returns by the prescribed date. There is nothing in Reg. 3 or in any other provision in the Act or the Regulations which renders the continued non-compliance an offence until its requirement is carried out.

12A. Reading of paras 30 (1) and 38 (1) of the Scheme leaves no doubt in our mind that on the expiry of the period of 15 days and 25 days contemplated by para 38 (1) of the Scheme, offences are committed completely. If there are subsequent defaults of the type, may be for the next month or may be for the month after next and so on, it will be, in the very nature of things, another set of substantive oft-fences committed by the employer. While dealing with the provisions in Section 12 (1) of the Karnataka Motor Vehicles Taxation Act, this Court has gone into this question in detail in the decision in Channabasappa v. State Criminal Revn. Petns. Nos. 243 and 244 of 1978 and that principle has been followed by a Division Bench of this Court in the decision in State of Karnataka v. Sheik Moulan Criminal Appeals Nos. 139 and 140 to 152 of 1978. It has been held that omission to pay tax for a particular quarter is a complete offence by itself and it is not a continuing offence. That reasoning, in our opinion, aptly applies to the facts and circumstances of this case.

13. The conclusion reached in the aforementioned paragraph is also supported by the decision in M/s. Wire Machinery . v. State 1978 Cri LJ 839 (Cal). The facts of the said case show that the offence complained of was the one created by the Scheme and the Act. The Division Bench of the Calcutta High Court considered the very question and applied the principle laid down by the Supreme Court in the decision in State of Bihar v. Deokaran Nenshi : 1973CriLJ347 and concluded in para 15 of its judgment as follows:

Para 38 of the Scheme requires an employer to pay to the Fund the Employer's and employees' contributions together with the administrative charges within fifteen days of the close of every month. The infringement for the failure to do so, therefore, occurs on the close of the fifteenth day of the month and is complete on the employer failing to make the payment to the Fund by that date. No provision of the Act or the Scheme lays down that if an employer makes a default in making the payment to the Fund within the stipulated time as required by para 38 of the Scheme and carries on his business, he would be guilty of an offence or that the offence would continue till the default is made good. Therefore, in the instant cases once the defaults were made the offences were committed once and for all and became complete on the close of the due date. As such there could not be any ingredient of continuance in the offence to make it a continuing one.

14. We respectfully agree with the above view.

15. In view of the foregoing reasons, we have no hesitation in upholding the order passed by the trial Court.

We confirm the order and dismiss the revision petition.


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