O P KHAITAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This application under Section 482 of the Cr.P.C. is for quashing of the Criminal Proceeding being C.G.R. No. 20 of 1991, pending before the Court of SDJM, Alipur arising out of Garden Reach, P.S. Case No. 6 dated 3rd January, 1991 under Section 120-B, 406 & 409 IPC. The case of the petitioner is that he, a legal practitioner, is a senior partner of M/s. O.P. Khaitan and Company, a Firm of the Solicitors and Advocates carrying on business at New Delhi. He being an enrolled Advocate, is not a whole-time Director nor a Managing Director of the Company and he has also not been in charge of or responsible to the Company for its day to day business. His duty was to merely give advice or legal opinion relating to policy decision of the Company in the legal matters. On 31st July, 1989 he resigned from his Directorship in respect of the said Company and the resignation was duly accepted by it. Recently he has come to know that a criminal case as described above has been pending before the said Court having been lodged against him and four other persons. The case has been instituted by one B.K. Bhattacharjee, Provident Fund Inspector before the Officer-in- Charge before the Garden Reach Police Station on 31st January, 1991 alleging therein, inter alia, that during inspection in M/s. Simon Carves (India) Ltd., it has come to his notice that the said establishment deducted a sum of Rs. 1,29,969.00 from the salary of its employees' for the period of March 1989 to January 1990 but the same have not been deposited to the Board of Trustees. This complaint being treated as FIR, investigation was taken up by police and after conclusion of the investigatkn a Charge-sheet was submitted on 18th December, 1993 before the Court of SDJM, Alipur under Sections 406 I.P.C. The Ld. Magistrate by his order dt. 18th December, 1993 took cognizance of the said offence on the basis of that charge-sheet and issued process against this petitioner. Subsequently, the Court issued warrant of arrest and also proclamation of attachment against this petitioner as well as the other accused persons of this case.

(2.) The said charge-sheet is an incomplete one since the documents as referred to under Section 173, Cr.P.C. have not been produced by the I.O. along with the charge-sheet and thus it is in violation of the provisions of sub-section 5 of Section 173 of the Code which provides that a charge-sheet or Police Report must be accompanied by all documents on which the prosecution proposes to rely and also all the statements recorded under Section 161 of the Code of the persons whom the prosecution proposes to examine as its witnesses. The Ld. Magistrate having taken cognizance of the offence on the basis of such incomplete charge-sheet has acted illegally and the order is liable to be set aside.

(3.) Secondly, a plain reading of Section 405 I.P.C. makes it clear that only an employer of an establishment under Act of 1952 who deducts the employees' contribution from the wages payable to the employer for credit to a Provident Fund shall be deemed to have committed an offence of Criminal Breach of Trust in the event he makes a default in payment of such contribution to the said Fund. Therefore it is imperative that the offender must be the employer of the establishment in respect of which the said default is made and he must have deducted the said amount in such capacity. According to Section 2(E) of the Provident Fund Act of 1952, the person who has the ultimate control over the affairs of the establishmet and where the said affairs are entrusted to a Manager, Managing Director or Managing Agent is the employer. In the complaint in question there has been no allegation that the petitioner at any material point of time was in ultimate control over the affairs of the Establishment of the said Company and in the absence of this vital allegation the essential ingredient of the offence punishable under Section 406 of the I.P.C. with regard to the petitioner is not disclosed -.nd therefore the Ld. Magistrate acted illegally in taking cognizance of the said offence on a the aforesaid charge- sheet.