JUDGMENT Birendra Pd. Sinha, J. In this application under section 561A, Code of Criminal Procedure, the petitioners, I. P. Goenka, S. K. Mullick and M. I. Wadsley, have prayed for quashing of the proceedings in C.O. case No. 52 of 1970, pending in the Court of Shri R. K. Singh, Munsif Magistrate, Dhanbad. 2. The facts leading to this application may be summarised thus. Opposite party P. N. Kakkar Coal Mines Provident Fund Inspector, Dhanbad, tiled a complaint in the Court of the Sub-divisional Magistrate, Dhanbad, on the 29th of September, 1970, against the petitioners and one S. D. Singh c/o Messrs Union Coal Company. P. O. Sijua, Dhanbad. Cognizance was taken under section 406. Indian Penal Code, and the case was transferred to the file of the Munsif-Magistrate for disposal. Summonses were issued to the petitioners on the 3rd of October 1970. On the 14th of December, 1970, petitioner No.1 I. P. Goenka made an application under section 205, Code of Criminal Procedure, to dispense with his personal attendance, which was allowed. On the 22nd of December, 1970, petitioner No. 3 M. I.-Wadsley also made an application under section 205, Code of Criminal Procedure, for exemption of his personal attendance which was also allowed on the condition that he should appear in Court whenever directed to do so Petitioner No.3 M. I. Wadsley filed another application to discharge him, on the ground that there was no entrustment of any money made to him as contemplated under the provision of section 406, Indian Penal Code. It was also pleaded that the opposite party had no locus standi to file a complaint petition; that Wadsley was not an employer of the employees of Gaslitand Colliery and that he was merely a director of the New Manbhoom Coal Company Ltd., who was the owner of Gaslitand Colliery. Until the 12th of January, 1971 petitioner No, 2 S. K. Mullik and S. D. Singh had not appeared in Court and fresh summonses were directed to be served upon them. On the 24th of March. 1971, the application for discharge of petitioner No.3 Wadsley was placed for hearing but since two of the accused persons had not appeared, the matter was adjourned to a later date. On the 24th of March. 1971, the application for discharge of petitioner No.3 Wadsley was placed for hearing but since two of the accused persons had not appeared, the matter was adjourned to a later date. On the 29th of April, 1971, a petition was filed on behalf of petitioner No.2 S. K. Mullick for dispensing with his personal attendance but the said application was rejected. However, the application filed by petitioner No.3 M. I. Wadsley for his discharge had not been disposed of and in the meanwhile, the petitioners filed the present application in this Court on the 15th May, 1972. 3. The prosecution case, in brief, is that the petitioners and one S. D. Singh are directors of Gaslitand Colliery situate at Sijua in the district of Dhanbad. It is stated that the said persons as employers deducted Rs. 40, 367.84 during the months April 1967 to September 1967 from the wages of the member workers of the colliery towards the provident fund contributions but did not deposit the same with the coal Mines Provident Fund commissioner and as such have committed criminal breach of trust. 4. Before I deal with the various contentions raised on behalf of the parties, it will be useful to state some of the provisions of the Mines Provident Fund and Bonus Schemes Act, 1948 (hereinafter called the Act). Under section 3 of the Act, the Central Government may frame a scheme to be called the Coal Mines Provident Fund Scheme for the establishment of a provident fund for the employees and specify the coal mines into which the said scheme shall apply. The said fund shall vest in, and be administered by, the Board constituted under section 34. Section 3D provides for transfer of accounts and may be usefully quoted herein; "3D. The said fund shall vest in, and be administered by, the Board constituted under section 34. Section 3D provides for transfer of accounts and may be usefully quoted herein; "3D. (1) Where any employee who is a subscriber to any provident fund of the coal mine in which he is employed becomes a member of the fund in accordance with the provisions of any Coal Mines Provident Fund Scheme, the accumulations in the provident fund of the coal mine standing to the credit of the employee shall, notwithstanding anything to the contrary contained in any law for the time being in force or in any deed or other instrument establishing the provident fund but subject to the provisions, if any contained in the Scheme, be transferred, by such person and within such time as may be provided in the Scheme, to the Fund and shall be credited to the account of the employee in the Fund. (2) Where a member of the Fund .eaves his employment in a coal mine and obtains re-employment in any other establishment (not being a coal mine to which the Coal Mines Provident Fund Scheme applies) and becomes a subscriber to any provident fund of that establishment, the amount of accumulations to the credit of such employee in the Fund shall be transferred, within such time as may be specified by the Central Government in this behalf, to the credit of his account in the provident fund of the establishment in which he is re-employed, if the employee so desires and the rules in relation to that provident fund permit such transfer. (3) Where any employee who is a subscriber to any provident fund of an establishment (not being a coal mine to which the Coal Mines Provident Fund Scheme applies) leaves his employment in that establishment and obtains re-employment in a coal mine and becomes a member of the Fund, the amount of accumulations to the credit of such employee in the provident fund of the establishment left by him shall, if the employee so desires and the rules in relation to such provident fund so permit, be transferred to the credit of his account in the fund. " Under section 8 protection has been given against attachment of the said Fund. Section 8 reads thus : "8. " Under section 8 protection has been given against attachment of the said Fund. Section 8 reads thus : "8. (1) The amount of the provident fund standing to the credit of any member in the Fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any Court in respect of any debt or liability incurred by the member and neither the Official Assignee nor any Receiver appointed under the Provincial Insolvency Act, 1920, shall be entitled to, or have any claim on, any such amount, (2) Any amount standing to the credit of any member in the Fund at the time of his death and payable to his nominee under the Coal Mines Provident Fund Scheme shall, subject to any deduction authorised by the said scheme, vest in the nominee and shall be free from any debt or other liability incurred by the deceased or incurred by the nominee before the death of the member." Section 9 provides for penalty for any contravention of the provisions of the Act, or of any scheme framed there under. Section 10B provides that all or any of the partners or members or directors may be prosecuted and punished for any offence for which the employer is punishable. The mode of payment of contribution by the employers and recovery thereof from members has been provided for in section 10D which may be quoted herein; "10D. (1) The contribution shall be payable by the employer (hereinafter referred to as the employer's contribution) and by the employee (hereinafter referred to as the employee's contribution) at such rate as may be specified in the coal Mines Provident Fund Scheme, and the employer shall pay the employer's contribution as well as the employee's contribution, whether or not he has recovered from any employee the employee's share of the contribution. (2) The amount of any contribution paid by the employee on behalf of a member shall, notwithstanding anything to the contrary contained in any other law for the time being in force or any contract, be recoverable by means of deduction from the wages of the member and not otherwise- (3) Save as otherwise provided in the Coal Mines Provident Fund Scheme, no deduction under sub-section (2) shall be made from any wages other than such as are paid in respect of the period for which the contribution is payable. (4) Notwithstanding any contract to the contrary, the employer shall not be entitled to deduct the employer's contribution or the charges referred to in section 10A from the wages of a member or otherwise to recover such contribution or charges from such member." 5. A scheme has been framed under the provision of section 3 of the Act, and there is no dispute that the same applies to the Gaslitand Colliery. There is also no dispute that a sum of Rs. 40, 367. 84 Was deducted by the employers from the wages of the employees of the said colliery during the months of April 1967 to September 1967 towards the provident fund contribution. It is further not disputed that the said amount was not deposited with the Coal Mines Provident Fund Commissioner as required by the Act, and the scheme. The dispute which seems to have been raised in the application are that petitioners Nos. 1 and 2 were never directors of the Gaslitand Colliery and were directors of the New Manbhoom Coal Co., Ltd., which was the owner of Gaslitand Colliery; that petitioner No.3 had resigned from the posse of director of the New Manbhoom Coal Co;, Ltd., on the 2nd November, 1966, and as such he was not a director during the relevant period; that Gaslitand Colliery was being ran by one S. D. Singh who was in sole charge of the conduct and business of the said Colliery. These facts have been controverter in the counter-affidavit filed on behalf of the opposite party wherein it has been stated that the petitioners are employers of the member workers of the Colliery in question and are covered within the definition of the word "employer" in section 2 (e) of the Act. These facts have been controverter in the counter-affidavit filed on behalf of the opposite party wherein it has been stated that the petitioners are employers of the member workers of the Colliery in question and are covered within the definition of the word "employer" in section 2 (e) of the Act. These are certain questions of fact and have not been pressed at the time of hearing of this application; and rightly so, because these questions cannot be gone into at this stage and in an application for quashing the proceedings initiated against the petitioners. 6. Mr. K. D. Chatterji, learned Counsel appearing on behalf of the petitioners, has made the following submissions: (I) Assuming that the allegations are correct, it does not amount to an offence punishable under section 406, Indian Penal Code, inasmuch as there is no "entrustment" of any money or property with the petitioners within the meaning of section 405, Indian Penal Code. (II) The Act, authorises prosecution under section 9 for contravention of any of its provisions and, therefore, prosecution under the Indian Penal Code is unauthorised and unwarranted. (III) The business of the company in question being carried on by a managing agent, the said managing agent shall be deemed to be the "employer" within the meaning of section 2 (e) of the Act, and the prosecution against the Gaslitand Colliery is not maintainable. 7. Me. Chatterji has contended that wages are "dues" which, if withheld, do not constitute entrustment. According to him any deduction• from the wages or any liability on the part of the employer, does not create a trust. Referring to the Act, he submitted that it nowhere says that the deductions towards the employees' contribution will amount to entrustment. It is only under paragraph 29 (2) of the scheme that a deeming provision has been made. According to the said paragraph, any sum deducted by an employer from the wages of the employee under the scheme shall be deemed to have been entrusted to him for the purpose of paying the contribution in respect of which it was deducted. Me. Chatterji submitted that this only creates a fiction. Authority to create such a fiction is lacking under the Act, and but for this it will not be an entrustment. Mr. Chatterji has further submitted that to constitute a trust the property must pass. Me. Chatterji submitted that this only creates a fiction. Authority to create such a fiction is lacking under the Act, and but for this it will not be an entrustment. Mr. Chatterji has further submitted that to constitute a trust the property must pass. The property which is wrongfully retained by a person who had dominion over it cannot be said to have been misappropriated. At the best, it can be a wrongful retention. In support of his argument, Mr. Chattcrji has placed reliance on the decision of the Supreme Court in Velji Raghavji Patel V. The State of Maharashtra1 and has drawn my attention to paragraph six of the said judgment which reads thus; "Upon the plain reading of S. 405.I. P. C. it is obvious that before a person can be said to have committed criminal breach of trust it must be, established that he was either entrusted with or entrusted with dominion over property which he is said to have converted to his own use or disposed of in violation of any direction of law, etc. Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every' owner of 'property has over his property. But it is not domill1on of this kind which satisfies the requirements of S. 405. In order to establish 'entrustment of dominion' over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that the dominion was the result of entrustment. Therefore, as rightly pointed out by Harris, C. J., the prosecution must establish that dominion over the assets or a particular asset of the partnership was, by a special agreement between the parties, entrusted' to the accused person. If in the absence of such a special agreement a partner receives money belonging to the partnership he cannot be said to have received it in a fiduciary capacity or in, other words cannot be, held to have been 'entrusted' with dominion over partnership operties.' In the above case the facts were briefly these. There was a partnership firm and the appellant was its working partner. A dispute arose amongst some of them which was referred to arbitration and, after an award, a fresh agreement was entered into. There was a partnership firm and the appellant was its working partner. A dispute arose amongst some of them which was referred to arbitration and, after an award, a fresh agreement was entered into. The appellant's share was to be fifty percent while the other partners had different shares in the remaining fifty percent. The complainant who was also a partner had a small share. The partners decided not to undertake any new work. The agreement required the accused appellant to complete all the accounts and prohibited him from borrowing money in the name of the firm. It also required him to realise all the pending bills and claims etc., and to dispose of the plant machineries etc. The agreement permitted the appellant to withdraw a certain sum no sooner he was able to realise any of the pending bills. A complaint was filed that the appellant had committed misappropriation of a certain sum of money in respect of six items. The appellant had been convicted in respect of four out of the six items. It was contended on behalf of the accused-appellant that he had realised the amounts in the capacity as a partner and he utilised them for the business of the partnership, as such he was liable to render accounts to his partners and could not be said to be guilty of an offence under section 409, Indian Penal Code. While dealing with a case of this nature, the Supreme Court said that if a partner received money belonging to the partnership he could not be said to have received it in a fiduciary capacity or, in other words, held to have been entrusted with dominion over partnership property. The facts of the instant case are quite different. It is not a case where a partner has retained the money belonging to the partnership. 8. The facts of the instant case are quite different. It is not a case where a partner has retained the money belonging to the partnership. 8. He has also relied upon another decision of the Supreme Court in State of Gujarat V. Jaswantlal Nathalal2 where in it was observed : "Before there can be any entrustment there must be a trust meaning there by an obligation annexed to the ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner." It was further observed: "The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. " The facts of this case were these. The Government of Gujarat had given a contract to Bharat Sewak Samaj (Gujarat) and the Samaj in its turn gave that work on sub-contract to a firm known as M/S Kaushik and Co. The said firm consisted of two partners and the accused was brother of one of the partners who was looking after the construction work. The Bharat Sewak Samaj applied for allotment of cement and 100 bags of cement were allotted and delivered to the accused for and on behalf of the Bharat Sewak Samaj. After taking delivery the accused delivered at the worksite only 60 bags of cement and the remaining 40 bags were sent elsewhere. A complaint was filed that the accused had committed breach of trust in respect of 40 bags of cement. The accused was convicted by the trial Court under section 409. Indian Penal Code, but was acquitted by the High Court. It was found in that case that after the sale of cement in question the Government had no proprietary right over the same nor the transaction in question resulted in any fiduciary relationship either between the Government and the Bharat Sewak Samaj or between the Government and the accused. It was a normal sale. It was found in that case that after the sale of cement in question the Government had no proprietary right over the same nor the transaction in question resulted in any fiduciary relationship either between the Government and the Bharat Sewak Samaj or between the Government and the accused. It was a normal sale. It was in the facts and circumstances of that case that the Supreme Court found that after the delivery of the cement the Government had neither any right nor dominion over it. The transaction was one of purchase and the property in the cement clearly passed to the contractor. In the instant case the facts are quite different. After the deductions made from the salaries of the member employees towards their provident fund contribution, it cannot be said that the deductions so made passed on to the employers and the employers became the owners of the said amount. The observations of the Supreme Court quoted above, on which reliance was placed on behalf of the petitioners, do not in any way help them. 9. The other decision on which reliance has been placed by learned Counsel is of the Kerala High Court (State of Kerala V. Haridas)3. The facts of that case are very much similar to the facts of the instant case. Certain deductions were made from the wages of the employees towards their provident fund contributions but were not deposited in the bank as required under the Employees' Provident Fund Act, and the Employees' Provident Fund Scheme framed there under. It was pleaded on behalf of the accused persons that they did not know that the deposits were not made and that when they knew that the deposits were not made they immediately made the deposits. The question as to whether there was any entrustment as contemplated by the Indian Penal Code came up for consideration in that case. The provident fund scheme provided that any sum deducted by an employer from the wages of the employee under the scheme shall be deemed to have been entrusted to him for the purposes of paying the contribution in respect of which it was deducted. Paragraph 29 (2) of the present Scheme under consideration is almost similar to that provision of the provident fund scheme. Paragraph 29 (2) of the present Scheme under consideration is almost similar to that provision of the provident fund scheme. It was held that mere deductions of a portion of the wages by the employer did not by itself constitute a trust. I am constrained to say that it is difficult to agree with this view of T. C. Raghavan, J. Referring to certain provisions of the provident fund scheme, the learned Judge said that those provisions indicated that the payment of the contribution in the first instance was to be made by the employer and he had to recover or recoup the amount from the wages of the employees. Thus, according to him, the liability to make contribution was cast on the employer, both his own contribution and the contribution on behalf of the employees, and thereafter the employer was to recoup the money he paid on behalf of the employees from the latter's wages. The learned Judge thought that if the deposit had to be made by the employer even before he made deductions from the wages of the employees and he only recouped the money he had already paid, there was no entrustment. According to him, what was being deducted was only in recoupment of the money the employer had paid from his pocket. After saying this the learned Judge has observed; "Probably, in a case where the deduction has been made already and the deposit follows, sub-para (3) might still apply." Sub-para (3) of paragraph 32; as has been stated earlier, provides that any sum deducted by an employer from the wages of the employees under the scheme shall be deemed to have been entrusted to him for the purposes of paying the contribution in respect of which it was deducted. From a reading of section 100 of the Act, it is evident that the contribution is payable by the employer and by the employee at a rate which may be specified under the scheme. The employer is required to pay his own contribution as well as the employee's contribution "whether or not he has recovered from any employee the employee's share of the contribution'. Under sub-section (2) of section 10D the amount of any contribution paid by the employer on behalf of the employee is recoverable by means of deduction from the wages of the employee concerned. Under sub-section (2) of section 10D the amount of any contribution paid by the employer on behalf of the employee is recoverable by means of deduction from the wages of the employee concerned. It is evident, therefore, that before making the deposits the employer may deduct the employee's contribution from the latter's earned wages and thereafter adding his own contribution remit the same to the bank and that is what really has not happened in the instant case. A sum of Rs. 40,367. 84 was deducted from the wages of the member workers of the colliery towards their provident fund contribution but neither that sum nor the employer's contribution was deposited as required under the scheme. Had the employer paid his own contribution and the contribution on behalf of the employees, in the first instance, and then deducted the employees, contribution from their earned wages, the matter would have been different. In the above reported case while stating the facts at one place it has been said that the employers did not remit the deductions they made from the wages of the employees into the Reserve Bank or the State Bank. Yet at another place it has stated that the contribution to be deposited by the employers were not deposited during a few months. It appears that the learned Judge lost sight of paragraph 28 of the Employees' Provident Fund Scheme which directs that the employer shall deduct the employee's contribution from his wages and then shall add his own contribution to the fund within a specified time, and proceeded on the footing that the contributions, both on behalf of the employers and the employees, were to be deposited by the employers and then the employers were to deduct the employees' share of the contribution from their wages. In that case the question of not remitting the deductions made from the wages of the employees to the bank would not arise, because the deductions were not contemplated to be made before the actual deposits of the employers' and the employees' contributions had to be made. In such a situation, as stated earlier, I am constrained to disagree with the view expressed by Raghavan, J. 10. Learned Counsel has also relied upon-an unreported decision of this Court in (Ram Kumar Saksaria and another v. State of Bihar4. In such a situation, as stated earlier, I am constrained to disagree with the view expressed by Raghavan, J. 10. Learned Counsel has also relied upon-an unreported decision of this Court in (Ram Kumar Saksaria and another v. State of Bihar4. Suffice it to say that this case has no relation with the facts of the instant case. 11. Mr. A. K. Sinha, learned Counsel appearing on behalf of the opposite party, on the other hand, has relied upon a decision of the Madhya Pradesh High Court in Akbarbhai Nazarali v. Md. d. Hussain Bhais. This was also a case relating to the Employees' Provident Fund Act, and the scheme framed there under. It was held there: "If the employer deducts 6 p. c., or any other percentage from the wages of the employees, telling them that it is their contribution to the provident fund, but fails to credit it to that fund, and retains it, he is prima facie guilty under that section (S. 406 I. P. C.)". It was further held : "It may be that the deduction and retention of the employees' contribution is a trust created by virtue of that very fact, or by virtue of a provision in statute or statutory rule. But even apart from the latter, the mere fact of telling the employees that it is their contribution to the provident fund scheme and then making a deduction or recovery and retaining it, constitutes the offence of criminal breach of trust. This is so obvious that nothing more need be said about it. " Mr. Sinha also drew my attention to the case of Lal Chand v. The State 6 wherein it was held that for the purposes of section 405, Indian Penal Code, it was not necessary that entrustment should be express. An implied entrustment was to suffice. This is so obvious that nothing more need be said about it. " Mr. Sinha also drew my attention to the case of Lal Chand v. The State 6 wherein it was held that for the purposes of section 405, Indian Penal Code, it was not necessary that entrustment should be express. An implied entrustment was to suffice. He also drew my attention to the case of Sakaldeo Ram v. Stale of Bihar7 wherein it was observed: "The property in respect of which criminal breach of trust can be committed must be either the property of some person other than the person accused or a beneficial interest in or ownership of it must be in some other person and the offender must hold such property on trust for such other person or in some way for that person's, benefit." It was further observed :- " Entrusted" is not necessarily a term of law. It may have different implications in different contexts. In its most general significance all it imports is a handing over of possession for some purpose which may not imply the conferring of any proprietary right at all." 12. Viewing the present case in the light of the above decisions, can it not be said that a part of the earned wages of the employees was deducted for the purpose of being deposited towards their provident fund with the confidence that the same would be so deposited ? Can it be said that this did not create any fiduciary relationship between the employee and the employees ? Can it be said that the employer had any proprietary interest in the money so deducted? The answers are self evident. Once the workers had earned their wages, the money became due to them. When they received their wages and allowed the employer to deduct a part of it as their provident fund contribution, they were only handing over that amount of money to the employer, although under the provisions of a statute, trusting that he would discharge the obligation enjoined upon him under the Act, and make the deposit. Merely by deducting the amount and retaining the same, the employers cannot be said to have acquired a proprietary interest in the said money. Merely by deducting the amount and retaining the same, the employers cannot be said to have acquired a proprietary interest in the said money. If they did not discharge their obligation and retained the money so deducted, they must be held to be liable for prosecution under section 406, Indian Penal Code. This cannot but be a case of criminal breach of trust. The scope of section 405, Indian Penal Code, is wide enough to embrace a case like the present one. The words "being in any manner entrusted with the property" occurring in section 405 is very significant and in the present case it is obvious that the employers must be held to be entrusted with the property in the manner prescribed under the Act, and the scheme. 13. Mr. Chatterji has then argued that the Act, does not authorise any prosecution under the provisions of the Indian Penal Code and a new kind of offence cannot be created beyond the Act. Once the Act, authorises prosecution under section 9 of the Act, merely by inserting a deeming clause in the scheme it cannot be extended so as to attract the provisions of section 406, Indian Penal Code. According to Mr. Chatterji paragraph 29 (2) of the scheme is unauthorised and ultra vires the Act. On the other hand, Mr. Sinha appearing for the opposite party has contended paragraph 29(2) of the scheme falls within clause 14 of the first schedule read with section 3 of the Act, and therefore, it does not travel beyond the provisions of the Act. The schedule prescribes for the matters to be provided for in the Coal Mines Provident Fund Scheme. Clause 14 of the said schedule is a general provision under which provision can be made in respect of any other matter which is to be provided for in the Coal Mines Provident Fund Scheme or which may be necessary for the purpose of implementing that scheme. The legislative policy and the principles are adequately laid down in the Act, and it is difficult to hold that the provisions made in the scheme are not within the guide-lines as laid down by the legislature. I do not find any substance in this submission of Mr. The legislative policy and the principles are adequately laid down in the Act, and it is difficult to hold that the provisions made in the scheme are not within the guide-lines as laid down by the legislature. I do not find any substance in this submission of Mr. Chatterji and hold that paragraph 29(2) of the scheme is intra vires and has been provided only with the purpose of carrying out the intention of the legislature. The offence under section 405, Indian Penal Code, is of a general nature and it is no way in conflict with the offence prescribed under the Act. A prosecution may be launched independently under the Indian Penal Code irrespective of there being a provision for prosecution for offences committed under section 9 of the Act. 14. As regards the third submission of Mr. Chatterji it must be rejected at the outset inasmuch as there is no pleading of any evidence at this stage that the business, of the company in question is being carried on by a managing agent and, therefore, the managing agent must be deemed to be the Employer within the meaning of the Act. There is no basis laid down for this submission and I am not inclined to consider this in the present case without there being any foundation for the same. 15. In the result this application fails and is dismissed. Application dismissed.