Modelama Exports & Ors. v. Provident Fund Inspector

1. These petitions have been preferred by the petitioners impugning the summoning order dated 21.5.2011 issued by the learned ACMM pursuant to the ten separate criminal complaints filed by the respondent due to the non payment of the statutory contributions under the various schemes of the Employees Provident Fund &Miscellaneous Provisions Act, 1952.

2. It is not in dispute between the paities that the total payment raised in all the demand notices which form part of these criminal complaints comes to Rs. 2,89,372/-.

3. Mf.RajatWadhwa, counsel for the petitioners submit that the petitioners had deposited the payment of Rs.2,89,372/- vide cheque no. 030271 drawn on Bank of India, Branch Karol Bagh, New Delhi and the said cheque was deposited by the petitioners with State Bank of India vide challan dated 27.9.2010. Counsel also submits that the petitioners were throughout under the bona fide impression that amount of the said cheque must have been credited to the account of the respondent and it is only 2013:DHC:7733 Id when the petitioners received notices in the critmnal cases they came to know that the respondent had not received the said amount. Counsel further submits that immediately thereafter the petitioners took corrective steps and issued a fresh cheque for an amount of Rs. 2,89, 372/- drawn on Bank of India and the amount of the said cheque has aheady been credited on 28.01.2012 in the account of the respondent as shown in the account statement of the petitioner which is on record. Counsel also submits that simultaneously, the petitioners had also issued instructions to its bank to stop the payment of the earlier cheque issued for the same amount. Counsel thus states that it is only due to the oversight and bonafide mistake of the petitioners that the demand raised by the respondent could not be satisfied.

4. In support of his arguments, counsel has placed reliance on the judgment of the Calcutta High Court in Jasoda Glass & Silicate & Ors. Vs. Regional Provident Fund Commissioner &Ors. (2002)IIILLJ1047Cal, wherein the court after placing reliance on the judgment of the Apex Court in Adoni Cotton Mills Ltd. Vs. Regional Provident Fund Commissioner & Ors., 1995 (Supp.(4) see 580todk. a view that if the entire amount of the provident fund is deposited by the assessee prior to the lodging ofthe criminal case the prosecution in such a case should not be proceeded with.

5. Counsel thus submits that the petitioners had already deposited the said amount prior to the filing of the criminal complaint by the respondent but the only mistake committed by the petitioners in the present case is that the petitioners did not verify its bank statement to ascertain the fact as to whether the cheque amount already stands credited in the account of the respondent or not. Counsel thus submits that due to the aforesaid bona fide reasons, the petitioners could not make the said payment before the launching of criminal prosecution by the respondent. The counsel also submits that the petitioners are willing to pay the interest amount in terms of Section 7Q of Employees Provident Fund & Miscellaneous Provisions Act, 1952 as per the demand raised by the respondents in their respective demand notices from the date of the demand as mentioned by the respondent in their various demand notice till the date of / payment. Counsel however, submits that the petitioners are not prepared to pay any damages in these cases as urged by the counselfor the respondent.

6. Taking into consideration the peculiar facts and circumstances ofthe aforesaid cases, let the petitioners pay the interest amount: on the said amount @12 %in terms ofSection 7-Q ofthe said Act; from the date of the demand till the encashment of the said amount i.e. 28.01.2012. Subject to payment ofthe said amount of interest, Hie criminal proceedings initiated by the respondent in then vanous criminal complaints which are subject matter ofthese petitions shall stand dropped.

7. In the light ofthe above, the present petitions stand disposed of DASTI.

FEBRUARY 13, 2013 KAILASH GAMBHIR, J '-J' 1^'j $~SB-2 to SB-10 ^>1 * IN THE HIGH COURT OF DELHI AT NEW DELHI +,CRL.M.C.No.3505/2012 MODELAMA EXPORTS AND ORS. Petitioners Through: Mr.Rajat Wadhwa, Ms. Chiral Dugar, Advocates versus PROVIDENT FUND INSPECTOR Respondent Through: Mr. Rajesh Manchanda and Mr.Rajat Manchanda, Advocates + CRL.M.C.No.3517/2012 + CRL.M.C.No.3514/2012 + CRL.M.C.No.3511/2012 + CRL.M.C. No.3506/2012 Through: Mr.Rajat.Wadhwa, Ms. Chiral + CRL.M.C. No.3507/2012 Tlirough: Mr.Rajat Wadhwa, Ms. Chiral + CRL.M.C. No.3509/2012 + CRL.M.C. No.3510/2012 + CRL.M.C. No.3513/2012 % CORAM: HON'BLE MR.

JUSTICE KAILASH GAMBfflR ORDER 07.02.2014. Crl.M.A. No.12263/2013 in CrI. M.C. No.3505/2012 Crl. M.A. No.12264/2013 in Crl. M.C. No. 3517/2012 Crl. M.A. No. 8363/2013 in CRL.M.C. No.3514/2012 Crl. M.A. No. 12276/2013 in CRL.M.C. No.3511/2012 Crl. M.A. No. 12262/2013 in CRL.M.C. No.3506/2012 Crl. M.A. No. 12272/2013 in CRL.M.C. No.3507/2012 Crl. M.A. No. 12273/2013 in CRL.M.C. No.3509/2012 Crl. M.A. No. 12274/2013 in CRL.M.C. No.3510/2012 Crl. M.A. No. 12275/2013 in CRL.M.C. No.3513/2012 (All Clarification of order dated 13.2.2013)

1. By this common order, this court proposes to dispose of all these applications moved by the applicant/respondent filed under Section 482 of Cr.P.C. for seeking clarification/modification in the order dated 13"^ February 2013.

2. The genesis of these applications, as per the applicant, is that the liability of the petitioners to pay the amount of interest, in terms of Sectioii 7-Q of the Employees Provident Fund Miscellaneous Provisions Act, 1952 arises exactly from the date when the amount became due from the Establishment and therefore the words 'from the date of demand' mentioned in para 6 of the order dated 13.2.2013 should be replaced by the words 'from the date the said amount was due from petitioners'.

3. No reply to these applications was preferred by the petitioners/nonapplicants. Arguments were heard on behalf ofboth the sides.

4. After hearing counsel for both the sides and upon perusal of the order dated 13.2.2013, this court is ofthe considered view that there is no ambiguity in the said order which calls for any clarification or modification. Para 5 of the order clearly records the submission of counsel for the petitioner that they were willing to pay the interest amount in terms of Section 7-Q of the Employees Provident Fund Miscellaneous Provisions Act, 1952 as per the demand raised by the respondents in their respective demand notices, i.e., from the date ofthe demand as mentioned by the respondents in their various demand notices, till the date of actual payment. It is in the light of the said submission of counsel for the petitioners, that this court directed the petitioners to pay. the interest amount on the demand raised by the respondents @ 12% in terms of Section 7-Q of the Employees Provident Fund Miscellaneous Provisions Act, 1952 from the date of such demand as was raised by respondent through demand notices and therefore, to substitute the words 'from the date of demand with 'from the date the said amount was due from petitioners will result in substantial change in the said order now, which in my view is totallyunwarranted.

5. The court cannot be oblivious ofthe fact that counsel for petitioner had categorically made a submission that they in fact deposited the amount in satisfaction of the demand raised by the respondents vide respective cheques and that they were under the bona fide impression that the amount ofthe said cheques had already been credited to the account of the respondents. It is only when they had received notices in the Criminal Case, that it was brought to their knowledge that the said cheques were not credited in the account ofthe respondents.

6. In the light of the aforesaid position, this court does not find any merit in these applications and accordingly the same are dismissed. KAILASlIGAMBHIR, J FEBRUARY 07, 2014 pkb