- (1.) These two Rules involve the same point of law and are taken up together for disposal. The Rule in Criminal Revision No. 398 of 1970 is at the instance of two accused-petitioners, Ranjit Kumar Chowdhury and Nirmal Sarkar, directed against an order dated the 20th February, 1970 passed by Sri P. K. Roy, Presidency Magistrate, 3rd Court, Calcutta in G. R. Case No. 531 of 1969 pending against them under Section 406, I.P.C. and for quashing the said proceedings as being not maintainable; and the Rule in Criminal Revision No. 636 of 1970 is at the instance of the accused petitioner, Prahlad Chandra Bose, for quashing the proceedings pending against him and some others in the Court of the learned Sub-Divisional Magistrate, Darjeeling under Sections 406/409, I.P.C. in G. R.Case No. 139 (1) of 1970.
(2.) The background of facts in both the Rules can be put in a short compass. In Criminal Revision Case No. 398 of 1970, a petition was filed on the 5th June, 1968 in the Court of the learned Additional Chief Presidency Magistrate, Calcutta by one Gopal Bag, an employee of Messrs. Dilkhusa Cabin at 88, Mahatma Gandhi Road, Calcutta under Section 406, I.P.C. praying that the learned Magistrate will be pleased to direct the O. C. to take cognizance under Section 156 (3) Criminal Procedure Code. It was stated inter alia that the two accused persons Ranjit Kumar Chowdhury and Nirmal Sarkar are the partners of M/s. Dilkhusa Cabin looking after, managing and controlling the said business and they have 16 other employees in the said business, besides the complainant; that it was agreed between the accused employers and the employees that every month the accused shall deduct the employee's contribution from wages towards the Employee's Provident Fund at the rate of 61/45% per month and that after such deduction from the employee's pay, the employer shall also make their own contribution at the same rate of percentage and the entire amount thereafter shall be deposited by, the employer with the Office of the Commissioner, Provident Fund within 15 days of each and every following month in accordance with the provisions of the Employee's Provident Funds Scheme, 1952; that although the complainant as also the other employees went on paying their shares each and every month, it has been found that the accused persons did not deposit the requisite amount with the office of the Commissioner, Provident Funds, on and from December, 1966 although they had deducted the said amount from the wages of the complainant and the other employees; that the complainant had entrusted a total amount of Rs. 215/- between period December, 1966 and April, 1968 with the accused for depositing the same with the Office of the Commissioner, Provident Funds but the accused had failed to do so and had misappropriated the same for their own use; and that they had misappropriated the other amounts so deducted from the wages from the other employees, totalling about Rupees 2801.50 P. The learned Additional Chief Presidency Magistrate by his order dated 5th June, 1968 directed the D.C.D.D. to take cognizance and to investigate. On 14-5-1969 a challan under Section 406, I.P.C. was submitted against the two accused-petitioners and the learned Additional Chief Presidency Magistrate transferred the case to the file of Shri L. N.Roy, Presidency Magistrate, 3rd Court, Calcutta for disposal. Copies of the relevant documents and statements were thereafter supplied to the accused and after hearing both the sides, the learned Presidency Magistrate, 3rd Court, Calcutta found that there was a prima facie case under Section 406, I.P.C. and in that view he framed charges under Section 406, I.P.C. on three counts against them. In course of the trial three prosecution witnesses were examined, cross-examined and discharged on 11-9-1970. The learned trying Magistrate being transferred, his successor in office cross-examined and discharged two more prosecution witnesses. A petition was filed thereafter on 3-2-1970 on behalf of the accused persons that a prosecution under Section 406, I.P.C. for a purported contravention of the provisions of the Employee's Provident Funds Act, 1952, is not maintainable in law. Shri P. P. Roy,. Presidency Magistrate, 3rd Court, Calcutta held bv his order dated the 20th February, 1970 that the Employee's Provident Funds Act, 1952 does not expressly or impliedly ban the progress of proceedings under any other enactment and in that view held that the proceedings pending in his court are maintainable. This order has been impugned and forms the subject-matter of the Rule in Criminal Revision No. 398 of 1970.
(3.) In Criminal Revision No. 636 of 1970, the facts are short and simple. The accused petitioner Prahlad Chandra Base is stated to be the Agent of the Pussimbing Tea Estate, a Tea garden situated at Ghoom, P. S. Jore-Banglow, Dt. Darjeeling. Messrs. Pussimbing Tea Co.Ltd. a public limited company, having its registered office at 85, Netaji Subhas Road, is the owner of the said garden. The Company is managed by a Board of Directors consisting, at the time, of Sri N. K. Bose, Sm. Pratima Bose and Sri R. R. Bhattacharya the accused Nos. 1 to 3 respectively. Sri S. K. Haldar, the Assistant Provident Funds Commissioner on behalf of the Regional Provident Funds Commissioner, West Bengal, filed i. complaint dated 17-4-70 with the Officer-in-Charge of Jore-Banglow P. S. Darjeeling along with a report by Sri B. N. Pradan, the Provident Fund Inspector, W. B. dated the 20th December, 1969 for the institution of a criminal case under Sections 406/409, I.P.C. against the employers of M/s. Pussiembing Tea Estate, Darjeeling for suspected breach of trust and misappropriation of employees provident funds money. On receipt of the said complaint and the accomanying report, a formal F.I.R. was recorded on 25th April, 1970 by the O/C. Jore-Banglow P. S.Darjeeling and the present criminal case being G. R. No. 139 (1) of 1970 under Sections 406/409, I.P.C., was started against four accused persons in the Court of the learned Sub-Divisional Magistrate, Darjeeling. The complaint briefly is that the accused employers had deducted the employee's share of Provident Funds contribution from their wages but have not deposited the same with the statutory fund as declared under Act and the Scheme framed thereunder and thereby committed the offence of criminal breach of trust as per paragraph 32 (3) of the Emplopee's Provident Funds Scheme, 1952. The period alleged is from April 1967 to August, 1967, November, 1967, April, 1968, July, 1968 to January, 1969, April, 1969. to May, 1969 and July, 1969 to September. 1969 amounting to Rs. 66,499.50 P. It was further alleged that they had deducted the employee's contribution amounting to Rs. 33,249.75 P. for the above period from the wages and salary of the employees. Coming to know about the institution of the above criminal case the accused petitioner Prahlad Chandra Bose, as the agent of the said Tea Estate, surrendered in the Court of the learned Sub-Divisional Magistrate, Darjeeling on the 26th May, 1970 and was directed to be released on a bail of Rs. 1,000/- with one surety of the like amount. These proceedings have been impugned as not maintainable in law and the Rule in Criminal Revision No. 636 of 1970 was obtained.;