N K JHAJHARIA Vs. L CHANDAR

JUDGEMENT

(1.) This Rule is at the instance of three accused Petitioners for quashing the criminal proceedings under Section 406, Indian Penal Code, being case No. C/4564 of 1969, pending against them and another co-accused, in the Court of Shri K. Ahmed, Sub-Divisional Magistrate, Asansol, Burdwan.

(2.) The facts leading on to the Rule are short and simple. The three accused Petitioners as well as the co-accused Hanuman Prosad Khemka are the Directors of the Searsole Coal Co. Ltd., the owner of the Searsole Colliery in P.S. Ranigunge, Asansol, district Burdwan, having its Head Office at 22 Chittaranjan Avenue, Calcutta. A petition of complaint under Section 406, Indian Penal Code, was filed on October 16, 1969, by Shri L. Chandra, Coal Mines Provident Fund Inspector, Kharsuli, Ranigunge, district Burdwan, under the direction of the Coal Mines Provident Fund Commissioner against four accused persons in the Court of the Sub-Divisional Magistrate, Asansol. The prosecution case stated therein, inter alia, is that the Searsole Colliery is owned by the Searsole Coal Co. Ltd. and the four accused persons are the Directors of the owners of the company; that the accused No. 1 N.K. Jhajharia is the nominated owner for the purpose of the Mines Act; that the accused persons, being the Directors, are deemed to be the owners of the colliery and are employers in relation to the same under the Coal Mines Provident Fund and Bonus Schemes Act; that under the provisions of the scheme framed under the said Act the employers shall deduct from the weekly or monthly wages of the employees in their mine, qualified as members of the Coal Mines Provident Fund, a sum as prescribed under the Coal Mines Provident Fund Scheme and deposit the same together with the prescribed contributions from the employers' side and the administrative charges within a specified period as laid down in the scheme; that any such sum deducted from the wages of the employees under the provisions of the aforesaid scheme is deducted and kept for the specific purpose of depositing the same to the credit of the fund, according to the provisions of the scheme; that amounts so deducted are kept by the employers in trust for the specific purpose of depositing the same in the manner as laid down in the scheme and within such time as specified thereunder; that in course of inspection the complainant found that for the months of January to March, 1969, the accused persons deducted the total sum of Rs. 751-68 P. from the wages and salaries of the employees named in the accompanying list, but they did not deposit the same along with their contributions and administrative charges in accordance with the provisions of the scheme; that the accused thereby dishonestly converted the same to their own use and/or disposed of the amount in violation of the directions of law prescribing the mode in which such trust was to be discharged; that by not depositing the said amount, the accused persons, jointly or separately, in collusion with one another and in conspiracy with some of the staff of the colliery, committed criminal breach of trust punishable under Section 406, Indian Penal Code and that summons may be issued against the accused persons under Section 406, Indian Penal Code. The learned Sub-Divisional Magistrate examined the complainant on solemn affirmation on the same date, viz. on October 16, 1969 and issued summons against the accused persons under Section 406, Indian Penal Code. The accused Petitioners thereafter submitted to the jurisdiction of the Court by filing an application for exemption under Section 205, Code of Criminal Procedure, but the same was rejected. The three accused Petitioners thereafter impugned the maintainability of the proceedings pending against them under Section 406, Indian Penal Code and obtained the present Rule.

(3.) Mr. Ajit Kumar Dutta, Advocate (with Mr. Jaharlal Roy, Advocate) appearing on behalf of the accused Petitioners, raised three points of law. He firstly contended that for a contravention of any provisions of the Coal Mines Provident Fund Scheme, a specific penalty is provided for under Section 9 of the Coal Mines Provident Fund and Bonus Schemes Act, 1948 (XLVI of 1948), which is a special Act and that such contravention would not attract the penalty under Section 406, Indian Penal Code, which is a general Act, more so, as it would result ultimately in circumventing the sanction enjoined under Section 9(2) of the special Act (XLVI of 1948). Mr. Dutt next contended that there cannot be any offence of criminal breach of trust, based on the fiction of an entrustment, as created under the Coal Mines Provident Fund Scheme framed under Section 3 of the Coal Mines Provident Fund and Bonus Schemes Act, 1948. The third and last submission of 2 Mr. Dutta is that, even if the general Act be deemed to apply, the facts and circumstances of the present case do not make out an entrustment within the meaning of Section 405, Indian Penal Code, constituting the offence of criminal breach of trust under Section 406, Indian Penal Code and as such, a continuance of the present proceedings thereunder would be an abuse of the process of the Court. Mr. Dutta cited also several cases in support of his contention and the same would be considered in their proper context. Mr. Deba Prosad Chowdhury, Advocate appearing on behalf of the State, joined issue. The first contention of Mr. Chowdhury is that there is no bar to a prosecution under the general Act for a contravention, which may also come within the bounds of the special Act, if and when the offence provided for under the general Act is a graver offence, attracting higher punishment. He next contended that the offence created under para. 29(2) of the Coal Mines Provident Fund Scheme is, a statutory offence and the statute having created a fictional trust, any contravention thereof, by a dishonest misappropriation or conversion to the accused's own use or any dishonest user or disposal thereof in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, expressed or implied, made touching the discharge of such trust, would attract the penalty. He contended in this context that para. 29, sub-para. (2) of the Coal Mines Provident Fund Scheme raises "a fiction, viz. that any sum deducted under sub-para. (1) by an employer or a contractor from the wages of a member 'shall be deemed to have been entrusted to him for the purpose' and is good enough to constitute a statutory offence based on such entrustment, ruling out any reference to the line of cases decided under Section 406, Indian Penal Code, to ascertain what really makes out 'entrustment'. The statute provides for such a contravention and creates the offence and nobody is above the same. Mr. Chowdhury also referred to several decisions which would be considered in their proper context. Mr. Sankardas Banerjee, Advocate (with Mr. Rathindra Nath Das, Advocate) appearing on behalf of the opposite party, L. Chandar, Coal Mines Provident Fund Inspector, Kharsuli, Ranigunge, submitted that there is a statutory entrustment provided for under Clause 29 of the Provident Fund Scheme and any dishonest conversion of any properties so entrusted would amount to an offence under Section 406, Indian Penal Code and that there is no bar in law to such a prosecution. Mr. Banerjee next contended that the entrustment created under the Coal Mines Provident Fund Scheme in fact adds to the classes of entrustment as provided for under Section 405, Indian Penal Code and punishable under Section 406, Indian Penal Code. Mr. Banerjee finally contended that there is no bar in law to a prosecution under the general Act for a contravention of any paragraph of the scheme framed under the special Act in view of the specific provisions made in the body of the special Act that any such amount deducted under para. 29(2) shall be deemed to be an entrustment. He referred also in this connection to some cases which would be considered in their proper context.