A.C. Sengupta, J. - (1.) This is an application by Sambhu Nath Agarwal and Bijoy Kumar Agarwal for issuance of a rule for showing cause as to why the impugned Criminal Case No. 8C-1048 of 1988 pending before the Additional Chief Judicial Magistrate, Sealdah, should not be quashed. The rule was issued in the year 1982 by Mr. Justice Amitava Dutt. An ad interim stay of further proceedings was also granted. Thereafter, the matter was heard by Mr. Justice J.N. Chowdhury. Judgment was reserved on 16th November, 1984. Thereafter, it was referred to the Division Bench.
(2.) Sankar Bhattacharyya, an Insurance Inspector in the Employees' State Insurence Corporation, filed a complaint under Section 406 of the Indian Penal Code before the Chief Judicial Magistrate, Sealdah, against the petitioners on the allegation that the petitioners being the partners of National Engineering Works were the principal employers of the factory. Upon inspection of salary registers and other records of the factory, it transpired that Rs. 22.80 was deducted for the month of February and March, 1988, respectively as the employees' share of contribution from the monthly wages of the employees but the same was not deposited in the Employees State Insurance Fund within the specified time as required under the Act. It was further contended that the petitioners have committed criminal breach of trust in respect of the said money within the meaning of Explanation 2 to Section 405 of the Indian Penal Code.
(3.) The petitioners contended that in the complaint it was not stated that the petitioners were the persons responsible for the day to day affairs in the running of the factory and looking after its affairs. The said sums of money had already been deposited with the necessary account subsequently. The complaint was barred by limitation under the Employees' State Insurance Act itself and was not maintainable. Moreover, the said Sankar Bhattacharyya was not authorised and/or competent to file the complaint and, hence, the cognizance taken by the learned Magistrate on the basis of such complaint was not maintainable.;