JUDGMENT Nagendra Prasad Singh, J. These applications under section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as 'the Code') have been filed on behalf of the same petitioners for quashing the criminal prosecutions which have been initiated against them on the allegation that they have contravened the provisions of the Employees' Provident Funds Miscellaneous Provisions Act, 1952 (hereinafter to be referred to as 'the Act'). 2. The complainant-opposite party who is the Provident Fund Inspector, appointed under section 13 of the Act, filed several petitions of complaint against these petitioners alleging therein that the provisions of the Act, were applicable to the establishment in question and the accused persons were in charge and responsible for the conduct of the business or the said establishment. It was further stated that provisions of the Act, read with paragraphs 30 and 38 of the Employees Provident Fund Scheme, 1952, a Scheme framed under section 6 of the Act. required the accused persons to pay the employee's contribution to the Provident Fund as well as employer's share of contributions to the family pension fund within fifteen days or the close of the month in question which they have failed to pay, as such they have contravened the provisions of the Act. On the aforesaid allegations it was stated that the petitioners were liable to be prosecuted for offence under section 14 of the Act. Different petitions of complaint have been filed against the petitioners for different periods starting from April, 1967 to March, 1976. All the petitions of complaint, which arc dated 18.5.1977, were placed before the learned Chief Judicial Magistrate on 1.5.1978, on which date he passed the impugned orders saying that the prosecution reports filed by the complainant be registered. He took cognizance of an offence under section 14 of the Act, against the accused persons and directed issuance of summons against them for appearance in Court. 3. The main ground on which the legality of the aforesaid orders have been questioned appears to be that after expiry of the period prescribed by section 468 of the Code, learned Chief Judicial Magistrate could not have taken cognizance of the offence aforesaid, and, as such, the orders impugned are liable to be quashed by this Court. 3. The main ground on which the legality of the aforesaid orders have been questioned appears to be that after expiry of the period prescribed by section 468 of the Code, learned Chief Judicial Magistrate could not have taken cognizance of the offence aforesaid, and, as such, the orders impugned are liable to be quashed by this Court. This argument has been advanced on the basis that section 14 of the Act, provides' six months' imprisonment for contraventions of the aforesaid provisions and in view of section 468 (2) of the Code, cognizance could not have been taken after expiry of the period of one year from the date of the commission of the offence. 4. Section 468 of the Code prescribes a bar on the power of the Criminal Court to take cognisance after the period prescribed thereunder. Sub-section (2) of that section is as follows : "(2) The period of limitation shall be- (a) six months, if the offence is punishable with fine only: (b) one year, If the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years." From a plain reading of this section it is obvious that the Parliament wanted to prescribe a time limit in respect of offences which are punishable for a term not exceeding three years. From the report of the Joint Committee, which recommended for inclusion of the provision of limitation in criminal law, it appears that the object inter alia for such enactment was: (i) People will have no peace of mind if there is no period of limitation even for petty offences. (ii) The deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of persons concerned. The Parliament while incorporating the said suggestion has also made provision for condoning any such delay lice ping in view the larger interest of the society. With that object in view provisions have been made in sections 470 to 473 of the Code. Sections 470 & 471 deal with exclusion of time under certain circumstances. Section 472 is a provision In respect of continuing offence. With that object in view provisions have been made in sections 470 to 473 of the Code. Sections 470 & 471 deal with exclusion of time under certain circumstances. Section 472 is a provision In respect of continuing offence. Section 473, which is relevant for the present cases, is as follows : "Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation. If it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice." In view of the language or section 473 there should not be any difficulty in holding that court may take cognizance of an offence even after the expiry of the period of limitation if (i) the delay has been properly explained, or (ii) if it is necessary so to do in the interests of justice. The effect whereof will be that whenever a petition of complaint is presented beyond the time prescribed by section 468 of the Code, the complainant has to satisfy the court concerned the circumstances under which tee complaint could not be presented within the period prescribed. There may be some cases where the court even in absence of any such explanation take cognizance if such court is satisfied that it is in the interest of justice to do so. 5. Learned Standing Counsel for the Central Government, however, submitted that on the allegations made in the petitions of complaint not only offence under section 14 of the Act, but also an offence of criminal breach of trust as defined in section 405 of the Indian Penal Code was disclosed, which cannot be held to be barred by limitation. 5. Learned Standing Counsel for the Central Government, however, submitted that on the allegations made in the petitions of complaint not only offence under section 14 of the Act, but also an offence of criminal breach of trust as defined in section 405 of the Indian Penal Code was disclosed, which cannot be held to be barred by limitation. It appears that by Act, 40 of 1973, explanation was added to section 405 of the Indian Penal Code, which is as follows : "A person, being an employer, who deducts the employee's 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 at 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." By this explanation the Parliament made it clear that if a person being an employer deducts the employee's contributions from wages payable to the employee for credit to the Provident Fund or Family Pension Fund and makes default in the payment of such contribution to the said Fund, he shall be deemed to have dishonestly used the amount of the said contribution. 6. Section 6 of the Act, lays down that the provisions regarding contributions and matters connected therewith can be provided in the scheme. Accordingly, the Employee's Provident Fund Scheme, 1952 (hereinafter referred to as ‘the Scheme') was framed. 6. Section 6 of the Act, lays down that the provisions regarding contributions and matters connected therewith can be provided in the scheme. Accordingly, the Employee's Provident Fund Scheme, 1952 (hereinafter referred to as ‘the Scheme') was framed. Relevant portion of paragraph 30 of the said Scheme is as follows : "(1) The employer shall, in the first instance, pay both the contribution payable by himself (in this Scheme referred to as the employer's contribution) and also, on behalf of the member employed by him directly or by or through a contractor, the contribution payable by such member (In this scheme referred to as the member’s contribution)." The relevant portion of paragraph 34 is as follows: "(1) The employer shall before paying the member his wages in respect of any period or part of period for which contributions are payable, deduct the employee's contribution from his wages which together with his own contribution as well as an administrative charge of such percentage of the pay (basic wages, dearness allowance, retaining allowance, If any, and cash value of food concessions admissible thereon) for the time being payable to the employees other than an excluded employee, as the Central Government may fix. He shall within fifteen days of the close of every month pay the same to the Fund by separate bank drafts or cheques on account of contributions and administrative charge." Reading the aforesaid paragraphs of the scheme along with the provisions of the Act, it will appear that the employer is required before paying his employee's wages in respect of any period to deduct the employee's contribution from the wages of the employee and within fifteen days of the close of every month to pay the same to the Fund. Learned Standing Counsel has submitted that whenever an employer deducts the contribution from the wages of his employee and fails to deposit the same to the Fund, be will be liable for punishment under section 409, and as under that section the period of punishment is ten years, there is no question of application of section 468 of the Code. 7. 7. in view of the explanation aforesaid to section 405 of the Indian Penal Code there cannot be any doubt that whenever an employer deducts employee's contribution from his wages for being deposited to the Provident Fund and fails to do so, he will be deemed to have committed breach of trust. But in such a situation, whether he will be liable to be punished under section 406 or under section 409 of the Penal Code is an independent question. If he is punishable under section 406, then the maximum punishment being three years the provisions of section 468 of the Code are attracted; whereas, if the punishment can be given to him under section 409, there is no question of applicability of section 468 of the Code. But, before such an employer is charged for an offence under section 409 it must be alleged that he was acting as an agent of the Employee's Provident Fund Scheme or as an agent of the employee from whose salary be has deducted the contribution when the offence in question was committed. According to the learned Standing Counsel, such an employer is an agent of the Provident Fund Scheme on whose behalf he has received the contribution of the employee. It is difficult to accept this contention. When section 409 of the Penal Code says, 'whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or.. ......agent commits a criminal breach of trust in respect of that property", it means a factual entrustment and not a fictional entrustment. It is well settled that the penal provisions do not take note of fictions but only of facts unless it is xpressed in unmistakable terms by the provisions of a particular enactment. There is nothing in the Act, or the Scheme which commands that the employer should be treated an agent of the Scheme for the purpose of collection of the contribution of the employees. In my opinion, whenever an employer deducts the contribution of the employee from wages of his employee and falls to make payment of such contribution to the Fund, then he shall be deemed to have committed an offence punishable under section 406. The result will be that in such cases clause (c) of sub-section (2) of section 468 of the Code shall be applicable. 8. The result will be that in such cases clause (c) of sub-section (2) of section 468 of the Code shall be applicable. 8. Learned counsel appearing for the petitioners, however, submitted that there is no allegation in respect of an offence punishable under section 406 of the Penal Code in the petitions of complaint, so as to enlarge the period of limitation from one year to three years. According to him, the offence alleged is an offence under section 14 of the Act, only. From a bare reference to the petitions of complaint it will appear that in paragraph 4 the complainant has stated that under paragraphs 30 and 38 of the Employee's Provident Fund Scheme the accused were required to pay employee's contributions to the Provident Fund for every month within fifteen days of the close of the month. Paragraph 38 of the Scheme, as already stated above, provides that employer shall before paying his employee his wages in respect of any period, deduct the employee's contribution from his wages and within fifteen days of the close of every month pay the same to the Fund along with his own contribution. Although the fact about the deduction from the wages of the employee has not been specifically stated in the petitions of complaint, but in view of reference to paragraph 38 of the Scheme, it cannot be said that there is no allegation about the petitioner's having deducted from the wages of the employees their contribution in accordance with paragraph 38 of the Scheme. 9. Learned counsel for the petitioners then pointed out that Criminal Miscellaneous Nos. 1036 of 1979 arises out of a case filed on 1.5.1978 in respect of non-deposit for the period April 1967 to June 1967, after a lapse of 11 years, similarly, Criminal Miscellaneous Nos. 1038 of 1979 and 1037 of 1979 relate to cases for the period April to June 1969 and July to September, 1969, respectively, Criminal Miscellaneous no. 1031 arises out of a case which has been filed for the same period April to June 1969. In all these cases complaints were filed on 1.5.1978, i.e., after a lapse of 9 years. Again Criminal Miscellaneous No. 1033 of 1979 arises out of a breach in making deposit in respect of the period October 1972 to December 1972, but the complaint was filed after about six years; Criminal Miscellaneous no. In all these cases complaints were filed on 1.5.1978, i.e., after a lapse of 9 years. Again Criminal Miscellaneous No. 1033 of 1979 arises out of a breach in making deposit in respect of the period October 1972 to December 1972, but the complaint was filed after about six years; Criminal Miscellaneous no. 1032 of 1979 arises out of a case which was filed on 1.5.1978, after 5 years, in respect of the period July 1973 to September 1973. It was submitted that in such cases there is no question of delay having been properly explained. It was further urged that to put the petitioners on trial in respect of offences which arc alleged to have been committed five to eleven years before the filing of the complaints, cannot be held to be in the interest of justice as well. There is substance in this contention. When section 473 of the Code vests power in the court to condone the delay in filing the complaint "in the interest of justice", even in absence of proper explanation that obviously means justice to both parties. If in every case the delay is condoned by the court saying that in the interest of justice an allegation of an offence should not go uninvestigated because of lapse of time, it will mean that for all practical purposes section 468 of the Code does not exist. In my opinion, the framers of the Code while vesting power to condone the delay in the interest of justice require the court to balance between the wrong done to the victim and the right to prosecute the accused for such wrong having been extinguished by lapse of time. 10. However, so far as the remaining cases are concerned which relate to period April 1974 to June 1974, January 1975 to March 1975, April 1975 to June 1975 and January 1976 to March 1976, complaints in respect thereof were filed on 1.5.1978. About these Cases the court concerned should have examined the allegations for the purpose as to whether an offence under section 406 of the Penal Code is made out. Then it should have been considered whether the complainant has properly explained the delay or it was in the interest of justice to condone such delay. About these Cases the court concerned should have examined the allegations for the purpose as to whether an offence under section 406 of the Penal Code is made out. Then it should have been considered whether the complainant has properly explained the delay or it was in the interest of justice to condone such delay. It need not be impressed that whenever a power under section 473 of the Code is exercised, court should give reasons for the condonation or the delay. 11. There was also a dispute as to whether while condoning the delay the court has to hear the accused as well. It is well settled that till the processes are issued in exercise or the powers under section 204 of the Code, an accused has no locus standi in the proceeding. On that principle it can be urged that question of condonation of delay is primarily a question which has to be decided between the complainant and the court. But, in my view, if accused in not heard at that stage or at any stage later on that question, in many cases great prejudice is likely to be caused to him. I have already pointed out that one of the objects of introducing a period or limitation in respect of certain petty offences was that after expiry of a particular period the right or moving a criminal court should be extinguished subject to the exercise or power under section 473 of the Code. In such a situation, a right accrues to the accused, which can be taken away only after hearing him. It has been pointed out on several occasions that merely from the absence of any specific provision in any particular Act, or Code requiring the person affected to be heard, it need not be inferred that the particular Act, or the Code does not require such person to be heard. Even where there is no specific provision such requirement is implicit, in absence whereof any order passed will be in contravention of the principles of natural justice. As such, I am of the opinion that an accused has to be heard on the question of condonation of the delay in filing the petition of complaint. 12. Now what should be the stage at which an accused should be heard on this question? As such, I am of the opinion that an accused has to be heard on the question of condonation of the delay in filing the petition of complaint. 12. Now what should be the stage at which an accused should be heard on this question? It has to be borne in mind that the limitation has been prescribed on the power of the court to take cognizance. Therefore, the delay has to be condoned at that stage. If it is held that the court can condone the delay without hearing the accused and accused can be heard at a later stage, then this will lead to lot of complications. The trial court will have to re-examine whether delay has been properly condoned or not in my view it is only proper that whenever the court docs not reject the application for condonation of delay summarily, it should issue notice to the accused and should bear him on that limited question. Similar view has been expressed by a Bench of this Court in the case of M/s Shyamlal Bhagat & Co. and others V.D.K. Bhatcacharya and another, I am in respectful agreement with the same. 13. There is another controversy regarding the period mentioned in sub-section (2) of section 468 of the Code. Divergent views have been expressed whether the period of punishment mentioned in sub-section (2) of section 468 of the Code for the purpose of limitation mean only the period of substantive sentence or the period after adding the sentence provided in default of payment of fine. In other words, if a particular section provides one year's imprisonment and a fine of Rs. 200, in default imprisonment of three months, whether for the purpose of sub-section (2) of section 468 the offence is punishable with one year only of more than one year, adding the period or punishment in default of payment of fine. A learned Judge of this Court in the case of Kunj Bihari Singh v. Shanty Lal Sah has held that for purpose of calculating the period of imprisonment under section 468 (2) of the Code even the period of imprisonment prescribed in default of payment of fine has to be included. A learned Judge of this Court in the case of Kunj Bihari Singh v. Shanty Lal Sah has held that for purpose of calculating the period of imprisonment under section 468 (2) of the Code even the period of imprisonment prescribed in default of payment of fine has to be included. Whereas, another learned judge of this court in the case of Jhopri Sao v. State of Bihar has held that section 468 does not contemplate addition of the period of imprisonment prescribed in lieu of payment of fine. I am in respectful agreement with the latter view. The learned Judge has rightly pointed out that if that construction is put then clause (a) of sub-section (2) of section 468 of the Code shall become almost redundant because generally wherever a fine has been prescribed, in default thereof a sentence of imprisonment is also provided. Apart from that, on a plain reading of sub-section (2) of section 468 of the Code, when it speaks of imprisonment for a term not exceeding one year or not exceeding three years, it speaks of the order of imprisonment and not what accused has to undergo in lieu of payment of fine. 14. In the result, Criminal Miscellaneous Nos. 1031, 1032, 1033, 1036, 1037 and 1038 of 1979 (R) are allowed and the Criminal proceedings which have been initiated in those eases are quashed. So far as Criminal Miscellaneous Nos. 1030, 1034, 1035 and 1039 of 1979 (R) are concerned, the applications are allowed, the order summoning the accused persons are quashed and the learned Chief Judicial Magistrate is directed to apply his mind to the allegations made in the petitions of complaint. Apparently, in most of those cases the period prescribed under Sub-section (2) of section 468 of the Code, even for an offence punishable under section 406 of the Penal Code, has expired. However, it will be open to the complainant opposite party to file an application for condonation of delay. Learned Magistrate shall consider whether it is a fit case where the delay should be condoned. While doing so he shall hear the petitioners also. In case be condones the delay to those cases or in some of them, thereafter, he shall consider whether prima facie case has been made out against the petitioners for an offence punishable under section 406 of the Penal Code or section 14 of the Act. While doing so he shall hear the petitioners also. In case be condones the delay to those cases or in some of them, thereafter, he shall consider whether prima facie case has been made out against the petitioners for an offence punishable under section 406 of the Penal Code or section 14 of the Act. For this it will be open to him to hold an enquiry under section 202 of the Code, if he considers necessary to ascertain as to whether the accused persons have deducted the contributions from the wages of their employees and have failed to deposit so as to be liable to be summoned for trial of an offence punishable under section 406 or the Penal Code. If at any such enquiry no prima facie case is made of such offence then he shall consider the question of only summoning the petitioners under section 14 of the Act, on the materials on the record. 15. Learned counsel for the petitioners while making a prayer for quashing the criminal prosecution, urged that our of the accused persons four are ladies and one of them is aged about 83 years. In case such accused persons arc summoned then they should move the court concerned to exempt their personal appearance. It is expected that the Chief Judicial Magistrate shall keep this aspect of the matter in view and pass appropriate orders. 16. Before I part with the judgment, I must observe about the manner in which the cases under the Act, are being filed. It appears that the Inspector.-Complainant opposite party bas got printed petitions of complaint containing identical allegations and only blank spaces have been left for filling the names of the accused, period for which the contravention has taken place, etc. We are surprised that even the Chief Judcial Magistrate is maintaining cyclostyled order sheet in which only blank spaces have been left for the names of the accused and the Magistrates to whom the cases are being transferred for disposal. In that cyclostyled order sheet it has been stated, register the prosecution report, filed by the Inspector, Employees' Provident Fund, Bihar, Ranchi against the accused. Then it says, perused the prosecution report, cognizance taken of the offence under section 14 of the Employees, Provident Fund and Miscellaneous Provisions Act. 1952. This depicts a sad state of affairs. In that cyclostyled order sheet it has been stated, register the prosecution report, filed by the Inspector, Employees' Provident Fund, Bihar, Ranchi against the accused. Then it says, perused the prosecution report, cognizance taken of the offence under section 14 of the Employees, Provident Fund and Miscellaneous Provisions Act. 1952. This depicts a sad state of affairs. Summoning an accused person has always been considered to be a judicial order which requires application of judicial mind. Such power should not be exercised in a mechanical manner. S. Roy. J. I agree. Applications allowed.