JUDGMENT - R.A. JAHAGIRDAR, J.:---These two criminal appeals are directed against the order passed by the learned Additional Chief Metropolitan Magistrate, 23rd Court. Esplanade, Bombay, in Criminal Cases Nos. 279, 280, 624 and 625 all under the Provident Funds and Miscellaneous Provisions Act and all of the year 1976. In all these four criminal cases, the accused were the same and the complainant is the Regional Provident Fund Inspector. The charge against the accused was one under section 14(1-A) of the Employees Provident Fund and Miscellaneous Provisions Act 1952, hereinafter referred to as the "Provident Fund Act". It was alleged that the accused contravened the provisions of paragraph 38 of the Provident Fund Act in as much as they had failed to make payment of the employees contribution as well as the employers contribution towards the provident fund. Criminal Case No. 279 of 1976 related to the period from September to November 1975 (both inclusive); Case No. 280 of 1976 related to the month of December 1975; Case No. 625 of 1976 related to the months of July and August 1975; and Case No. 625 of 1976 related to the month of January 1976. Admittedly the employees as well as the employers contributions were not made by the Company, accused No. 1, and the person in charge of the company. Criminal Cases Nos. 279 and 280 of 1976 were disposed of by the learned trial Magistrate by the common judgment and order dated 7th of March, 1977. Similarly, Cases Nos. 624 and 625 of 1976 were disposed of by the learned trial Magistrate by the common judgment and order dated 7th of March, 1977. Against the first order Criminal Appeal No. 178 of 1978 has been preferred while against the second order Criminal Appeal No. 179 of 1978 has been preferred. 2. When it was pointed out to Mr. Saldanha, the learned Advocate appearing for the appellant, original complainant, that one single appeal cannot be filed against the orders passed in two criminal cases, though they have been disposed of by a common judgment and order, Mr. 2. When it was pointed out to Mr. Saldanha, the learned Advocate appearing for the appellant, original complainant, that one single appeal cannot be filed against the orders passed in two criminal cases, though they have been disposed of by a common judgment and order, Mr. Saldanha exercised his option by saying that Criminal Appeal No. 178 of 1978 should be regarded as an appeal against the order passed in Criminal Case No. 279 of 1976 while Criminal Appeal No. 179 of 1978 should be regarded as having been directed against the order passed in Criminal Case No. 624 of 1976. 3. The learned trial Magistrate by the aforesaid orders acquitted accused Nos. 1, 2, 3 and 6 in all the cases. Accused Nos. 4 and 5 were not proceeded against in the trial Court. The learned trial Magistrate was satisfied on the material placed before him that accused Nos. 3 and 6 were not in charge of the Company, which is accused No. 1 and they could not be held liable for the default that might have been committed by the other accused. After going through the entire judgment in both the sets of cases and after hearing Mr. Saldanha, I am satisfied that in so far as the order of acquittal against accused Nos. 3 and 6 are concerned they are not liable to be interfered with. 4. The question now relates to only accused Nos. 1 and 2. Accused No. 1 is the Company while accused No. 2 was admittedly in charge of the Company at all material times. Indeed, as has been pointed out by the learned trial Magistrate, accused No. 2 voluntarily admitted that he was in charge of the whole management of the Company and was responsible to the Company for the management thereof. Accused No. 2 only pleaded that because of unforeseen circumstances the amounts of the employees and the employers contributions could not be paid in accordance with paragraph 38 of the Provident Fund Act and prayed that the lesser sentence of fine only should be imposed upon him. The learned trial Magistrate, however, accepting the case of accused No. 2 that it was impossible, in view of the straitened financial condition in which the Company found itself, to make over the payments under paragraph 38 of the Provident Fund Act acquitted accused No. 2 and, naturally, accused No. 1 also. The learned trial Magistrate, however, accepting the case of accused No. 2 that it was impossible, in view of the straitened financial condition in which the Company found itself, to make over the payments under paragraph 38 of the Provident Fund Act acquitted accused No. 2 and, naturally, accused No. 1 also. The original complainant has preferred these two appeals challenging the view taken by the learned trial Magistrate. 5. Mr. Saldanha had no difficulty in showing that the reliance placed by the learned trial Magistrate on the proviso to section 14-A(1) of the Provident Fund Act is hopelessly misplaced. Section 14-A comes into operation after the offence is proved to have been committed and mentions the persons who should be held liable when the offence is committed by a Company. The proviso only provides that any person liable to punishment under the main part of sub-section (1) of section 14-A is excluded from that liability if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. Mr. Saldanha is justified in complaining that the learned trial Magistrate has misunderstood both the main part of section 14-A and the proviso thereto because on the admitted facts accused No. 2 was in charge of the Company and he in terms mentions that he was not able to make the payments of the employees and employers contributions. It cannot, therefore, be said that the offence was committed without his knowledge. The question is whether he exercised all due diligence to prevent the commission of the offence. 6. The learned trial Magistrate thought that the straitened financial circumstances in which the Company was placed was enough to bring the case of accused No. 2 under the latter part of the proviso to section 14-A(1) of the Provident Fund Act. In my opinion, this conclusion is not at all warranted by the facts and circumstances of this case. As Mr. Saldanha has rightly pointed out, returns have been filed for the relevant periods, namely September to November 1975 and July and August 1975 which unmistakeably show that recoveries were made from the wages which were payable to the employees of the Company. As Mr. Saldanha has rightly pointed out, returns have been filed for the relevant periods, namely September to November 1975 and July and August 1975 which unmistakeably show that recoveries were made from the wages which were payable to the employees of the Company. If this is so, one cannot appreciate how accused No. 2 can be allowed to get away with a plea that he exercised all due diligence to prevent the commission of the offence. It is not the case of accused No. 2 in response to the evidence led on behalf of the prosecution through the Provident Fund Inspector that in fact contributions were not recovered from the wages of the employees as mentioned in the returns filed by the Company. One can understand to some extent the helplessness pleaded by accused No. 2 in paying the employers share of the contributions payable to the provident fund. But one totally fails to see how a person can be excused from his failure to credit the contributions recovered from the wages of the employees. A clear offence is, in my opinion, established on the part of accused No. 2 and also on the part of accused No. 1. 7. Mr. Saldanha has also made a grievance that the learned trial Magistrate was in error in accepting the case of the accused that there was financial crisis in the Company which prevented the accused from making the contributions without any evidence or material produced before him in support of that case on behalf of the accused. There is considerable substance in this grievance of Mr. Saldanha. However, looking to the detailed manner in which the statements of the accused have been filed, it cannot be said that there is no material at all in the instant case. On the facts and circumstances of this case, therefore, I am not inclined to interfere with that finding. 8. None appears before me for accused No. 2. However, Mr. Saldanha has shown me all the relevant material on record and I have also heard Mr. R.K. Maheshwari appearing for accused Nos. 1, 3 and 6. I have already confirmed the order of acquittal in respect of accused Nos. 3 and 6. Mr. 8. None appears before me for accused No. 2. However, Mr. Saldanha has shown me all the relevant material on record and I have also heard Mr. R.K. Maheshwari appearing for accused Nos. 1, 3 and 6. I have already confirmed the order of acquittal in respect of accused Nos. 3 and 6. Mr. Maheswari has, with considerable amount of justification, pointed out that the Company was in a straitened financial condition which prevented the Company from making over the contributions of the provident fund. For reasons which I have already mentioned earlier, I reject this contention and held that accused No. 1 is also liable. Looking, however, to the facts and circumstances of the case, I do not think that substantive sentence of imprisonment is called for in this case and a sentence of fine should meet the ends of justice. 9. In the result, these appeals are allowed. The order of acquittal passed by the learned Additional Chief Metropolitan Magistrate, 23rd Court, Esplanade, Bombay, in Criminal Case No. 279 of 1976 and Criminal Case No. 624 of 1976 are set aside. Accused Nos. 1 and 2 in each of these cases are convicted of the offence punishable under section 14(1-A) of the Employees Provident Funds and Miscellaneous Provisions Act 1952 and each of them is sentenced to a fine of Rs. 1,000/-. Appeal allowed. -----