- (1.)BY this application the petitioners are challenging the taking of cognizance by the learned Judicial Magistrate, First Class, Vasco-de-Gama, of an offence under Section 406 of I. P. C. in proceedings of Criminal Case No. 36/5/89 instituted by the Police against them in the Vasco Court and the process issued therein against the said petitioners on 7th March, 1991.
(2.)THE Vasco Police filed a charge-sheet in the Court of Judicial Magistrate, First Class, Vasco-de-Gama against the petitioners under Section 406 I. P. C. on the basis of a complaint made to them on 30-11-1988 by one Smt. R. Joseph, Provident Fund Inspector. According to the complaint under Section 406 of I. P. C. The petitioner are charged for committing criminal breach of trust in respect of Provident fund contribution and Family Pension Fund contribution purportedly deducted by the petitioners from the wages of the employees of M/s. Chowgule Brothers, being the petitioner No. 1 V. D. Chowgule its Managing Partner, it is further stated in the complaint that M/s. Chowgule Brothers is an establishment which is covered by the Employees Provident Fund and Miscellaneous provisions Act 1952 (hereinafter referred to as the Act') and the schemes framed there under. The said Act and schemes were applicable to the said establishment. Under Para 30 of the Employees Provident Fund Scheme and 9 (1) nw Para 39 of the F. P. Scheme the petitioners were required to pay the employees provident fund and family pensions fund established under the said Act. Under para 38 of the said scheme the petitioners are required also to deposit Such deduction along with equal amount of employees share into the SBI of Employees Provident Fund Account No. 1, Family Pensions Fund No. 10, on Of before 15th of the close of the month for which the wages were payable. In terms of sub-para 3 of para 32 of the Employees Provident Fund Scheme any sum deducted by an employer from the wages of the employees under the Scheme shall be deemed to have -been entrusted to him for the purpose of paying the contribution in respect of his salary out of which the deduction was made. Further Explanation to Section 405 IPC reads that a person being an employer who deducts the employee's contribution from the wages payable to the employee for credit to the provident fund or family pension establishment by any law for the time being in force shall be deemed to have been entrusted with the amount of contribution as deducted by him and if he makes default in the payment of Such contribution to the fund in violation of the said law shall be deemed to have dishonestly used the amount of the contribution in violation of the direction of law as aforesaid. The complaint further adds that from the wages of the employees the amount payable as the employees share was deducted as per details given in the complaint being the same referring to the month of October, 1988 in the sum of Rs. 23,051/- towards the Employees Provident Fund contribution and Rs. 2837/- towards the share of Family Pension Fund contribution. This amount deducted, however, has not been paid to the Employees Provident Fund Account No. 1 and Family Pension Fund Account No. 10 with the State Bank of India as required by Para 30 of the Scheme. Thereafter in spite of the request made to the partners to pay the amount they failed to do so. Therefore all the petitioners who are personally in-charge of and are responsible for the conduct of the business or the establishment were charge sheeted for committing an offence under Section 406 of I. P. C.
(3.)THE charge-sheet forwarded by the Police to the Court of Judicial Magistrate, First Class, Vascoda-de-Gama refers also to the fact that on 16-11-1988 the petitioner sing the employers deducted contribution of employees Provident Fund totaling Rs. 25,000/- for the month of October, 1988 and did not deposit the same before 15th October, 1988 to the Employees Provident Fund Account and dishonestly used the amount of contribution thus committing an offence under Section 406 I. P. C. It was on the basis of this complaint and the charge-sheet that the learned Magistrate passed die impugned Order issuing process against the petitioners.