AI Structured Summary
Not yet generated for this judgment
Judgment
G.S. Chahal, J.—Mukesh Kr. Aggarwal, who is proprietor of M/s. Mahalaxmi Industries, Khanna has moved this criminal miscellaneous u/s 482, Cr. P.C. for quashing of the complaint dated May 11, 1990 filed by the ESI Corporation.
The prosecution has been launched under Sections 406/409, IPC on the basis that the petitioner was the principal employer of the Firm, which is covered by the ESI Act and the Scheme made thereunder. On inspection of the record of the Firm by the Insurance Inspector, it was found that contribution to the fund had been deducted from the employees of the Firm from their wages for the months of April, 1988 to December, 1989, amounting to Rs. 10,758-95, but the same has not been deposited under the provisions of the Act. He has, thus, committed offences under Sections 406/409, IPC.
The learned Magistrate framed the charges under Sections 406/ 409, IPC. for embezzlement of Rs. 10,758-95 which had been deducted out of the wages of the employees of the Firm for the months of April, 1988 to December, 1989.
The petitioner has challenged the prosecution on the ground that the amount in question had already been deposited on June 14, 1990 even when the petitioner had not acquired knowledge about the institution of any criminal complaint. In my view, this deposit will not absolve the petitioner of criminal liability which he had incurred by not making the deposit at the proper time. The prosecution cannot be quashed on that basis. I, however, find that the charge framed against the petitioner suffers from a legal technicality. Sections 212 and 219, Cr. P.C. may be quoted for ready reference :
"212, Particulars as to time, place and person.-- (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219 :
Provided that the time included between the first and last of such dates shall not exceed, one year.
XX XX XX
Three offences of same kind within year may be charged together.--(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same Section of the Indian Penal Code (45 of 1860) or of any special or local law:
Provided that, for purposes of this Section , an offence punishable u/s 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under any Section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence when such an attempt is offence. --"
When these two Sections are read together, the petitioner could not be charged for all the offences under Sections 406 and 409, IPC. Which were alleged to have been committed within a period of one year. However, the Magistrate was not justified in framing the charges and holding a joint trial for offences committed beyond the period of one year. I thus, accept the Criminal Miscellaneous, quash the charge, Annexure P4 and direct the Magistrate to reframe the charge in accordance with law, after giving the parties an opportunity to argue the matter, if any and what offence is made out on the basis of the relevant documents and evidence produced. The parties are directed to appear before the Court of the learned Magistrate on the day of September 19, 1991.