Ashok Gulab Vaswani vs The State Of Maharashtra & Ors
2017 Latest Caselaw 4346 Bom

                                                           Cri.W.P. No.421/2001
                                      (( 1 ))


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               BENCH AT AURANGABAD



                   CRIMINAL WRIT PETITION NO.421 OF 2001



 Ashok s/o Gulab Vaswani,
 Age 48 years, Occ. Business,
 Managing Director of
 Spectrum Alkyd & Resins Ltd.,
 Aurangabad, R/o 204,
 "Panchdhara" Offyari Road,
 Varshwa, Andheri (West), Mumbai                ...      PETITIONER

          VERSUS

 1)       The State of Maharashtra
          (Copy to be served on Public
          Prosecutor, High Court of
          Judicature of Bombay,
          Bench at Aurangabad)

 2)       Director General of Police,
          Maharashtra State,
          Shahid Bhagatsing Marg,
          Mumbai (M.S.)

 3)       The Deputy Inspector General
          of Police, Behind Old High Court
          Building, Aurangabad,
          District Aurangabad

 4)       The Commissioner of Police,
          Mill Corner, Aurangabad,
          District Aurangabad

 5)       The Assistant Provident Fund
          Commissioner, Sub-Regional
          Office, Behind Cidco Bus Stand,
          Cidco, Aurangabad

 6)       The Inspector of Police,
          M.I.D.C. Police Station,
          Waluj, Aurangabad (M.S.)              ...      RESPONDENTS

                                       .....


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                                                                     Cri.W.P. No.421/2001
                                              (( 2 ))


 Shri H.A. Joshi, Advocate holding for
 Shri J.N. Singh, Advocate for petitioner
 Shri P.G. Borade, A.P.P. for State
                                  .....

                                       CORAM:       T.V. NALAWADE AND
                                                    SUNIL K. KOTWAL, JJ.

DATED: 11th July, 2017.

ORAL JUDGMENT (PER T.V. NALAWADE, J.):

1. This petition is filed for relief of quashment of F.I.R.

No.93/2001, registered in M.I.D.C. Waluj Police Station for offence

punishable under Sections 406 and 409 of the Indian Penal Code.

Both the sides are heard.

2. The petitioner is Managing Director of one Company.

It was noticed that, the Employees' contribution towards

provident fund for the month of April and May 2001, which was

deducted from the salary, was not deposited with the fund and

thereby the offence is committed. Show-cause-notice was

issued. The submission of the petitioner is that, within the period

of show-cause-notice, the amount was deposited.

3. Learned counsel for the petitioner took this Court

through the provisions of Sections 14-A and 14-B of the

Employees' Provident Fund Act, 1952. It is submitted that, under

the special provisions like provisions of Section 14-A(3), the

cognizance of the matter can be taken by the Court upon

complaint made by public servant of the concerned Department

Cri.W.P. No.421/2001 (( 3 ))

and so, it was not possible to register the crime on the basis of

F.I.R. This Court has carefully gone through that provision. That

provision is in relation to penalty as mentioned in the Act itself

and for those offences, the complaint needs to be given by the

public servant and then the Court is expected to take the

cognizance.

4. In the present matter, the crime is registered under

Sections 406 and 409 of the Indian Penal Code. This Court has

also carefully gone through the provisions of Section 405 of the

Indian Penal Code, in which criminal breach of trust is defined.

Explanation No.1 added to the Section in the year 1993 shows

that whenever such incident takes place, the presumption is

available against the employer that the amount was entrusted

with the employer and that he has committed the offence of

criminal breach of trust. Thus, it can be said that the crime can

be registered even under Section 406 of the Indian Penal Code if

there is such default on the part of the employer. This Court sees

no reason to interfere in the matter and give relief of quashment

of the F.I.R. The petition stands dismissed. Rule stands

discharged.

          (SUNIL K. KOTWAL)                     (T.V. NALAWADE)
              JUDGE                                   JUDGE

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