ORDER: 1. This Rule seeks to quash a prosecution started against the petitioners who happened to be the Managing Director. Directors and the Manager of Associated Aesby Industries (P) Ltd a factory, under s. 406 IPC for failure to deposit in the fund of ESI Corporation within the prescribed period, the amount deducted by them as principal employee from the wages of the employees amounting to Rs 19,657/30p for a certain period. The contention raised In support of the Rule was that the complaint was lacking in material particulars to fasten criminal responsibility upon the petitioners as it did not say anything more than that they were the Managing Director, Directors and the Manager and were the principal employers at the relevant time . 2. The learned Advocate for the petitioners had argued that it was incumbent upon the complainant to state in the complaint that the Petitioners were in charge of the business or were in overall control of the day to day business of the company and In support of this contention reliance has been placed on the decision in K. N. Ganda & Anr. v. The State 1982 (11) CHN 223. That was no doubt a case under the Employees' State Insurance Act and It was held on the basis of a previous decision in Krishna Kumar Dalmia Vs. The State 1981 (11) CHN 301 which however, was a case under the Employees' Provident Fund and Miscellaneous Provisions Act, that an averment that the accused persons as principal employers failed to deposit that amount to Employees' 'State Insurance Fund was not an adequate averment to connect the accused with the alleged offence. The State 1981 (11) CHN 301 which however, was a case under the Employees' Provident Fund and Miscellaneous Provisions Act, that an averment that the accused persons as principal employers failed to deposit that amount to Employees' 'State Insurance Fund was not an adequate averment to connect the accused with the alleged offence. It appears from the judgment that Krishna Kumar Dalmia's case (supra) was under s.14A of the Employees' Provident Fund and Miscellaneous Provisions Act, or in other words, the accused persons were sought to be made vicariously liable for an offence committed by the company The scheme of Employees' State Insurance Act, is altogether different as under the, Act, an offence can be committed not by the company but by the principal employers and as such no question can possibly arise of making an accused vicariously responsible for an offence admitted by the company by alleging' that he was in charge of the business or in overall control of the day to day business of the company On the other hand, an earlier Division Bench of this Court has held in Bidyut Kumar Sett & anr, v. Satyesh Chandra Bagchi & Ors 1978 CH N 444, that a Director of a company can be brought within the meaning of the word 'occupier' as mentioned in s.2(17) of the Employee, State Insurance Act. Under the Employees' State Insurance Act, responsibility Is cast upon the principal employer to make deduction from wages of employees and to deposit the same to the Fund of the 'Employees' State Insurance Corporation within a certain period and if it is not done, he shall be deemed to hove committed the offence of criminal breach of trust, looking to explanation 2 to s.405 of Indian Penal Code In the circumstances on the authority of the decision in Bidyut Kumar Sett's Case (supra) It Can be held that the present petitioners are the principal employers being occupiers of the factory to question and the learned Magistrate made no error in taking cognizance on the complaint. 3. 3. It may however be noticed that under explanation 2 to s.405, Indian Penal Code, an employer who deducts contribution from the wages of employees for credit to the Employees' State Insurance Fund and makes default in deposit of such contribution to the Fund Is deemed to have dishonestly used the amount in violation of the direction of law under the Employees' State Insurance Act, however, It is the responsibility of the principal employer to make deduction from the wages of employees and therefore a question may arise whether a principal employer can be held to be liable for the offence of Criminal breach of trust as defined in s.405 IPC, Although explanation 2 to s 405 IPC use the word 'employer' and not principal employer still the sensible view will be that the expression 'employer' as used in this explanation really means the principal employee because under the Employees' State Insurance Act, to which also reference is made in the explanation, it is for the principal employer to make the deduction. Any other interpretation will render this explanation nugatory and, therefore, it can be safely held that the Intention of the legislature was to make the defaulting principle employer liable or the offence of criminal breach of trust. 4. For reasons stated above it does not appear that the complaint was lacking in any material particular to fasten criminal responsibility on the petitioners and the learned Magistrate committed no error In taking cognizance on the complaint. 5. The Rule is, therefore, discharged. Record be sent down at once and the learned Magistrate is directed to dispose of the proceeding with utmost expedition Rule discharged; direction given