MADHUMATI MITRA,J. - (1.) Opposite party no.2, the Enforcement Officer, Employees Provident Fund Organization lodged an FIR with Chakdaha Police Station against the present petitioners on 23.07.2012, alleging offence of criminal breach of trust punishable under Sections 405/406/409/34 of the Indian Penal Code for non-deposit of a sum of Rs.9,17,448.00/- as the Employees and Employer's Share of Provident Fund contribution with the appropriate Authority after deducting the employees' share from their salary/wages for the period from 02/2012 to 06/2012. After completion of investigation charge-sheet was submitted against the present petitioners for commission of the alleged offences punishable under Section 405/406/409/34 of the Code of Criminal Procedure.
(2.) Learned Additional Chief Judicial Magistrate, Kalyani sent the case record to the Court of Learned Special Judge, Nadia, at Krishnagar for trial. The Petitioners prayed for an order of their discharge under Section 227 of the Code of Criminal Procedure before the Learned Special Judge, Krishnagar, Nadia. On 02.04.2016, Learned Special Judge heard both the parties, with regard to the prayer of the petitioners to discharge and fixed on 18.05.2016 for order regarding the prayer for discharge of the petitioners and framing of charge. Thereafter, the petitioners have filed the present application being CRR 1638 of 2016 under Section 482 of the Code of Criminal Procedure praying for an order to quash the entire proceeding being S.P.L Case No.5 of 2014 arising out of Chakdaha Police Station Case No.522 of 2012, dated 23.09.2012 under Sections 405/406/409/34 of the Indian Penal Code. Petitioners have also challenged the order dated 02.04.2016, passed by the Learned Special Judge in connection with that case. Present petitioner no.1, Supreme Paper Mills Limited is a company duly incorporated under the provisions of the Companies Act. Petitioner no.2 is the Chairman-Cum-Managing Director of the said company. Petitioner no.3 and 4 are the Directors and Petitioner no.5 is the General Manager of the petitioner no.1 Company. From the materials placed on record it appears that the present petitioner nos.2 to 5 are the Managing Director, Directors and General Manager of the petitioner no.1 i.e the Company. In the First Information Report there is specific allegation that the petitioners deducted the employees' share from their salary and thereafter did not deposit the said employees' share as well as the share of the employer with the appropriate Authority. From the averments made in the petition under Section 482 of the Code of Criminal Procedure, it appears that the petitioners have taken specific plea that they subsequently deposited the alleged dues i.e employers and employees' share of Provident Fund with the appropriate Authority. From the charge-sheet which was submitted after completion of investigation against the present petitioners under Section 405/406/409/34 of the Indian Penal Code it transpires that the employees and employer's contribution of Rs.9,17,448.00/- for the period from 02/12 to 06/12 had not been deposited within time. Now the petitioners have taken the plea that the payment had been made subsequently. In this connection learned Advocate appearing for the opposite party no.2, Regional Provident Fund Authority has submitted that non- deposit of employees' share of provident fund with the Authority within time after deduction of the same from the wages of the employees are offences within the meaning of Sections 405/406/409 of the Indian Penal Code. Subsequent deposit of the said share of provident fund with the appropriate Authority cannot exonerate the petitioners from the criminal liability of the offence already committed by the petitioners. Subsequent deposit of provident fund contribution dues after commission of the alleged offences is not a ground to quash the criminal proceeding pending against the petitioners. He has further contended that the fact of delayed deposit or subsequent deposit of statutory dues may be taken into consideration during final hearing of the case. He has forcefully contended that it would not be reasonable and justified to quash the proceeding which has been initiated for non-deposit of the shares of the provident fund of the employees and employer with the statutory Authority within time. Learned Advocate appearing for the State has shared the same view as expressed by Learned Advocate for the opposite party no.2. Learned Advocate appearing for the State has vigorously argued that it is not a fit case to quash the proceeding. Learned Advocate appearing for the petitioners has forcefully submitted that the criminal proceeding pending against the petitioner nos.2 to 5 cannot be allowed to be continued as they are not the principal employer within the meaning of Explanations to Section 405 of the Indian Penal Code and the continuation of proceeding under Sections 406/409 of the Indian Penal Code against the petitioners nos.2 to 5 would be an abuse of the process of the Court. In support of his contention learned Advocate for the petitioners has placed his reliance on several decisions reported in 1985 (1) CHN 113 (S.K.Agarwalla & Others Vs. Employees' State Insurance Corporation & Anr.), 2009 (4) CHN 364 (Sunil Kumar Panti & Ors. Vs. State of West Bengal & Ors.); 2003 C Cr LR (Cal) 341 (R.L.Kanoria & Ors. Vs. State & Anr.), (2012) 2 C Cr LR (Cal) 615 (Prabhash Kumar Basu Vs. The State of West Bengal); (2008)5 Supreme Court Cases 662 (S.K.Alah Vs. State of Uttar Pradesh and Others); (2008) 5 Supreme Court Cases 668 (Maksud Saiyed Vs. State of Gujarat and Others), 1998 C Cr.LR (SC) 396 (Employees State Insurance Corporation Vs. S.K.Aggarwal and Ors.; (2008) 3 CAL LT 484(HC) (Satish Kumar Jhunjhunwala Versus The State of West Bengal); 2015 (3) CHN (CAL) 755 (Inderjit Singh Oberoy Vs. State of West Bengal). On the other hand Learned Advocate appearing for the opposite party no.2 has contended that in view of the specific definition of 'employer' as contained in Section 2(e) of the Employees Provident Fund and Miscellaneous Provisions Act 1952 the Managing Directors and Directors are responsible for the affairs of the company and as such the Directors and the Managing Director are liable to be prosecuted under Section 405/406/409 of the Indian Penal Code for non-deposit of statutory dues relating to the share of the provident fund of the employees. According to his contention the present application under Section 482 of the Code of Criminal Procedure to quash the proceeding is devoid of merit and liable to be dismissed.
(3.) In support of his contention he has placed his reliance on Section 2(e) of the Employees Provident Act 1952 and on several decisions reported in 2006(1) CLJ (Cal) 593 (Mr.Debidas Dutta Vs. The State of West Bengal; 2018 (2) LLJ (Cal) 112 (Tapan Biswas Vs. The State of West Bengal and Anr; 2007 (2) CLJ (Cal) 124 (Kamala Tea Company Limited and Ors.); 2019 (161) FLR 156 (Supreme Court) (Employees State Insurance Corporation and Venus Alloys Pvt. Ltd.). I have carefully gone through the decisions so cited at Bar. I have also considered the submission and rival submission of the parties. Before going into factual details, rival contentions and the legal issues involved in the case on hand, it is useful to refer Section 405/409 of the Indian Penal Code and Section 2(e) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 which read as under: "Section 405: Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust'. Explanation 1.- A person, being an employer, [of an establishment whether exempted under Section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. Explanation 2.- A person, being an employer, who deducts the employee's contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a deduction of law as aforesaid. Section 409: Criminal breach of trust by public servant, or by banker, merchant or agent. - Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." ;