AHMED RAMLAN Vs. GERTIE MATHIAS

JUDGEMENT

(1.) These appeals are directed against the judgments dt.25-1-1975 passed by the Chief Judicial Magistrate, S.Kanara, Mangalore, in CC. Nos.480/70, 479/70, 481/70, 477/70 and 478/70 respectively acquitting the respective respondents who were the accused therein of the offence under S.406 IPC. The undisputed facts may be narrated briefly as follows: There is one tile factory known as Highland Tile Factory (hereinafter referred to as the Factory') in Mangalore. The provisions of the Employees Provident Funds and Family Pension Fund. Act, 1952 (hereinafter referred to as 'the Act') and the Employees' Provident Funds Scheme 1952 (hereinafter referred to as 'the Scheme') apply to the Factory. The respondents deducted Rs.3,653-50 for the period 1-10-68 to 31-12-68, Rs.3,673-75 for the period 1-1-69 to 31-3-69, Rs.2,925-50 for the period 1-4-69 to 30-6-69, Rs.2,289.75 for the ptriod 1-7-68 to 30-9-68 and Rs.2,985-75 for the period 1-4-68 to 30-6-68 out of the wages of the employees of the Factory towards the concerned employees' contribution to the Provident Fund as provided under the Act and the Scheme. The aforementioned amounts pertaining to the said periods are the subject matters of the charges in CC.Nos.480, 479, 481, 477 and 478,70s respectively. The respondents failed to credit the said sums with the concerned authority as per the provisions of the Act and the Scheme.

(2.) The prosecution alleged that the respondents having so failed to credit the said sums had committed the offence under S.406 IPC (during the alorestated periods). The respondents contended that though they had deducted the said sums as put forth by the prosecution and failed to credit the sums, the ingredients of S.406 IPC were not satisfied inasmuch as it could not be in law said that they were entrusted with the said sums as contemplated by Section 405 IPC.

(3.) The learned Chief Judicial Magistrate has agreed with the contention of the respondents. We have considered it appropriate to dispose of these appeals by a a common judgment as the only question involved is of law and that is common to all these appeals. Sri U.L.Narayana Rao, the learned Senior Standing Counsel for the Central Govt pointed out that by S.9 of the Employees' Provident Funds and Family Pensions Funds (Amendment) Act, 1973 an explanation has been incorporated in S.405 IPC and urged that in view of this explanation the point involved is beyond controversy. He also urged that this explanation removed whatever uncertainty there was in the law as it stood before amendment. For this proposition he relied on the decision in Khatizabai v. Controller of Estate Duty AIR. 1960 Bom, .61.. The Explanation stated above reads as follows : A person being an employer, who deducts the employees' 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. Section 405 IPC runs as follows : 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 wilfully suffers any other person so to do commits 'criminal breach of trust.