- (1.) THIS is an application under Section 482 Cr. P. C. for quashing the criminal proceeding being proceeding NO, C2182 of 1989 of the court of the Learned Chief Metropolitan magistrate Calcutta. The said criminal proceeding was started on the basis of a complaint filed by the Inspector Employees State Insurance Act, 1948 (E. S. I act, 1948) relating to payment of Co of contribution and submission of return in respect of a factory covered under the said Act. In the petition of complaint the Company M/s. The North Brook Jute Mills Ltd. has been made the accused no. 1 and J. M. Roy who is a Director of the said Company has been made the accused No. 2 is the Manager. This revisional application has been filed by the accused Nos. 1 and 2. It is Contended on behalf of the petitioners that the petition of complaint does not contain any allegation, particularly in respect of the petitioner No. 2. J. M. Roy to show that any offence was at all Cognizance taken by the Learned Chief Metropolitan Magistrate was bad and therefore the criminal proceeding is liable to be quashed. In paragraph 2 of the petition of company under the name and style of M/s. The North Broke Jute Mills Ltd. It is also stated therein that the company has got a factory at the address given therein and the said factory is covered under the purview of the E. S. I. Act. 1948. Accused No. 2, J. M. Roy is stated to be the Director and at all material time responsible to the company for the conduct of its business as well as its factory and the said Director and the Manager including the said company are the principal employers within the meaning of Section 2 (17) of the E. S. I. Act 1948 read with Section 86-A of the said Act and are liable for Compliance in respect of their said factory with the provision of the E. S. I. Act and the regulation framed thereunder. It has been argued on behalf of the petitioners that these averments in the petitions of Complaint are not sufficient to justify taking of Cognizance.
(2.) THE Learned Advocate for the petitioners cited the decision of a Division bench of this Court in Bhubanmohan vs. The State, 199 (VI) Crimes 416. That was a case under the Employees provident fund and Miscellaneous Provisions act, 1952 (E. P. F. and M. P. Act 1952) which came up before this court against the conviction and sentence passed and affirmed by the court below. It was observed in that case that apart from the allegation made in the complaint that the petitioners being employers during the relevant period were in charge of the establishment and were responsible to it for the conduct of its business. No evidence had been adduced as to how the petitioners or any of them in fact participated in the day to day running of the business. In para, of the said decision it was further observed that in the absence of evidence to show that the accused persons were not only such persons who were in charge of the company but they were responsible to the company in the conduct of its day to day business the conviction of the petitioners could not be sustained. The said decision is however not applicable to the present case. In the present case the question is whether the prima facie averments contained in the petition of complaint are sufficient to justify the taking of cognizance by the Chief metropolitan Magistrate but in the cited decision the question that was considered was whether the evidence that was adduced in the case during trial was sufficient to justify the conviction of the petitioners. In our present case the question of sufficiency of evidence does not arise at this stage.
(3.) THE decision that was next relied upon by the Learned advocate for the petitioners is a decision of a Division Bench of this Court in K. N. Genda us. The state 982 (II) C. H. N. 223. one of the two cases under consideration in that decision was a prosecution under the E. S. I. Act and the other was a prosecution under the E. P. F. and M. P. Act in the case under the E. S. I. act the petition of complaint it seems contained an averment in paragraph 2 that the accused persons were the principal employers of M/s. Calco Engineering works (vide page 227 ). There was also an averment in paragraph 3 that the principal employers were required to pay the employees share of contribution. In paragraph 4 it was stated that the accused persons had committed criminal breach of trust within the meaning of explanation 2 of Section 405 of the Indian penal Code. In view of this state of affairs when there was nothing more in the petition of complaint than the statement that the accused persons were principal employers of the establishment the Division Bench held that there was no sufficient averment in the complaint to connect the accused with the alleged offence and on this ground the proceeding was liable to be quashed. In the case under the E. P. F. and M. P. Act, it seems, it was stated in paragraph 3 of the complaint simply that the accused Nos. 2 to 5 at all material time were the persons in charge of the establishment and were responsible to it for the conduct of its business (vide Page 232 ). These averments were however held to be not sufficient to connect the accused with the alleged offence and the proceeding was quashed. It does not appear that any of the two complaints contained any averment that the concerned accused were directors The position, of a director as occupier of factory with reference to the definition of principal employer therefore did not fall for consideration in that reported decision.;