N.C. Talukdar, J. - (1.) This Rule was issued at the instance of the two accused -petitioners for setting aside an order dated the 18th May, 1971 passed by Sri S. C. Dutta, Presidency Magistrate, 15th Court, Calcutta, in Case No. C - -164 of 1970, rejecting their prayer to discharge them; and for quashing the said proceedings pending against them before the learned Trying Magistrate under Sec. 406 Indian Penal Code. The background of facts is a short one. A petition of complaint was filed in the Court of the learned Additional Chief Presidency Magistrate, Calcutta, on the 13th March, 1970 by the complainant -opposite party No. 1 Sambhu Prasad Agarwal, stated to be the Chief Accountant of M/s. Inter State Transport Agency, a partnership firm having its registered office at 134/1, Mahatma Gandhi Road, Calcutta, alleging inter alia that the staff attached to the Registered Office at Calcutta and branch offices, numbering about 70 heads are entitled to the benefit of Employees Provident Funds Scheme and have been regularly contributing to the said fund according to the Rules; that according to the Provident Funds Scheme, the amount collected every month for the said fund are to be deposited with the State Bank of India, with intimation to the Regional Provident Fund Commissioner, West Bengal, 24, Park Street, Calcutta; that the management of the firm, viz., the accused persons, collected the contribution to the fund by the members of the staff, during the months of November, 1969 to January, 1970 by making deductions from their wage bills indicated in the records maintained in the office, amounting to Rs. 7,000/ - more or less, from staff contributions and a similar sum of Rs. 7,000/ - being the management's share of contributions, but did not deposit the sum in the Bank and no intimation was sent to the office of the Regional Provident Fund Commissioner, West Bengal at Park Street, Calcutta; that the entire amount of Rs. 14,000/ - which should have been so deposited in the State Bank of India according to the Rules has been misappropriated by the accused persons and was not properly accounted for; that the accused persons were entrusted with the provident fund money referred to above and had dominion over the same but have dishonestly misappropriated the same or have converted the same to their own use in violation of the directions of law, prescribing the mode in which such trusted should have been discharged, thereby causing illegal gain for themselves and illegal loss to the members of the staff, and thus committed an offence punishable under Sec. 406 of the Indian Penal Code. The learned Additional Chief Presidency Magistrate, Calcutta examined the complainant and sent the matter for judicial enquiry. On the 3rd April, 1970, after perusing the report of the judicial enquiry, he agreed and accepted the same and summoned the accused persons under Sec. 406 of the Indian Penal Code. The matter proceeded thereafter for some time in the court below and ultimately on the 5th May, 1971 an application was filed on behalf of the accused persons praying for discharging them under Sec. 253(2) of the Code of Criminal Procedure on the ground that the charge is groundless. The learned Additional Chief Presidency Magistrate, Calcutta, however, by his order dated the 18th May, 1971 rejected the application on grounds as mentioned in the said order. This has been impugned and forms the subject -matter of the present Rule.
(2.) Mr. Balai Chandra Roy, Advocate, (with Messrs. Tapandeb Nandy and Durgapada Dutt, Advocates) appearing on behalf of the accused petitioners in support of the Rule made two short submissions. Firstly, that paragraph 32(3) of the Employees' Provident Fund Scheme, 1952 merely creates a fiction of an entrustment, punishable under Sec. 14 of the Employees' Provident Funds Act, 1952 (Act XIX of 1952) but there cannot be any prosecution for an offence of criminal breach of trust based on such a fiction of entrustment; and secondly that the facts and circumstances of the present case did not, in any way, make out any entrustment within the meaning of Sec. 405 of the Indian Penal Code constituting thereby the offence of criminal breach of trust under Sec. 406 of the Indian Penal Code and as such a continuance of the present proceeding thereunder would be an abuse of the process of the court. Mr. Sarojesh Mukherjee, Advocate, appearing on behalf of the complaint -opposite party No. 1 and Kishore Mukherjee, Advocate, appearing on behalf of the State joined issue. They contended that sub -paragraph 3 of paragraph 32 of the Employees' Provident Fund Scheme, 1952 creates a statutory offence and the contravention of even a fictional trust as created by the statute, would constitute an offence under Sec. 406 of the Indian Penal Code. Their reply to the second branch of Mr. Balai Chandra Roy's submissions is that a continuance of the present proceeding under Sec. 406 of the Indian Penal Code would not be, in any way bad in law or improper inasmuch as sub -paragraph 3 of paragraph 32 of the Employees' Provident Fund Scheme, 1952 provides "any sum deducted by an employer from the wage of an employee under this scheme shall be deemed to have been entrusted to him for the purpose of paying the contribution in respect of which it was deducted" and is accordingly good enough to constitute a statutory offence based on such entrustment. It was further contended in this respect that the aforesaid provisions of the special Act, rule out the circumscribed definition of entrustment laid down in the line of cases under Sec. 405 of the Indian Penal Code, inasmuch as the statute provides for such a contravention and creates an offence and nobody is above the same. Several cases were cited and would be considered in their proper context.
(3.) The first branch of the contentions raised by Mr. Balai Chandra Roy relates to the effect of a fiction of an entrustment created under paragraph 32(3) of the Employees' Provident Funds Scheme, 1952. It is pertinent in this context to refer to the provision in paragraph 32(3) of the Employees' Provident Funds Scheme, 1952. It runs as follows : - - Any sum deducted by an employer from the wage of an employee under this Scheme shall be deemed to have been entrusted to him for the purpose of paying the contribution in respect of which it was deducted.;