Debi Prosad Dey, J. - (1.) This application under section 482 of the Code of Criminal Procedure, 1973 has been filed for quashing of proceedings in GR case no. 295 of 2013 corresponding to Coke Oven police station case no. 22 of 2013 dated 23rd February, 2013 under Section 406/409 of the Indian Penal Code pending in the Court of learned Additional Chief Judicial Magistrate, Durgapur, Burdwan on the ground that the petitioners have been falsely implicated in the instant case and that M/s. Jai Balaji Industries Limited (herein after referred to as the said company only) should have been implicated as the principal accused for not depositing the provident fund of the employees of such company after deducting the same from the salary of the employees. The specific case of the prosecution is that the company has deducted an amount of Rs. 1,48,96234/- from the share of employees statutory deduction in respect of the provident fund but the said amount although was deducted by the said company, it has failed to account for the same and deposit the same with the employees provident fund organization within due time and as such the company and persons responsible for such conduct of it's business, are responsible under the provisions of Section 406/409 of the Indian Penal Code. The criminal law was set in motion and after completion of investigation charge sheet has been submitted against one Rajiv Jajodia said to be the director of M/s. Jai Balaji Industries Limited and one Sri Niranjan Gouri Saria said to be the senior general manager of M/s. Jai Balaji Industries Limited under Section 406/409 of the Indian Penal Code. The specific averment made in the report in final form is that the aforesaid persons are the owners of M/s. Jai Balaji Industries Limited and they have violated the mandatory provision of depositing the amount of employees provident fund share which was deducted from the share of the employees.
(2.) Learned senior Advocate Mr. Debashis Roy appearing on behalf of the petitioners contended that the charge sheet under reference is not maintainable for the sole reason that the present petitioners are neither the owners nor come within the purview of definition employer in respect of M/s. Jai Balaji Industries Limited, the company. Mr. Roy further contended that the entire prosecution is bad in law since the defector complainant and the investigating agency have failed to implicate M/s. Jai Balaji Industries Limited who, is the actual employer in terms of Section 405 of the Indian Penal Code. In such circumstances the charge sheet being no. 94 of 2013 dated 30th June, 2013 ought to be quashed. Mr. Roy has further submitted that the company has in the meantime if not, immediate after filing of the first information report has deposited the entire share of the employees, which was deducted by the company vide annexure-P2.
(3.) Learned Advocate Mr. S.C. Prasad appearing on behalf of opposite party no. 2 vehemently contended that mere payment of the amount towards the share of employees provident fund, which was deducted from their salary, will not absolve the present petitioner from the liability of prosecution under Section 406/409 of the Indian Penal Code. In support of his contention Mr. Prasad has relied on a decision of one of the learned single Judges of this Court in CRR no. 885 of 2015 (Tapan Biswas v. The State of West Bengal and Anr.) . learned single Judge has been pleased to hold that if after initiation of a proceeding for non-deposit of provident fund amount before the appropriate authority, if the employer deposit the same in that event also the employer would not be absolved of the liability of such criminal offence.;