ORDER: This revision' petition under s. 397/401 read with s. 482 of the Code of Criminal Procedure is at the instance of the complainant petitioner, represented by Insurance Inspector. Employees' Slate Insurance Corporation and is directed against an order dated 6th August 1985, passed by Metropolitan Magistrate, 8th Court, Calcutta, holding that the complaint filed against the accused-opposite party under s. 406 I.P.C. was not maintainable and in that view of the matter discharged the accused-opposite parties from the present proceeding. 2. The complainant-appellant-petitioner filed a complaint in the court of Metropolitan Magistrate, Calcutta, against the accused-opposite parties alleging that... the accused-opposite partier are the principal employers of M/s. Sterling Pharmaceutical Co. Pvt. Ltd. and that the said factory is covered under the E.S.I. Act. It is alleged that the accused persons as the principal employers deducted a slim of Rs, 2388 10 P as employees' share of contribution from the wages of the employees but failed to deposit the said amount to the E.S.I. Fund within the specified period as required under the concerned Act and Regulations and the accused persons thereby committed criminal breach of trust in respect of the aforesaid money within the meaning of Explanation 2 of s. 405 I.P.C. and therefore the accused persons had committed an offence under s. 406 I.P.C. 3. The learned Chief Metropolitan. Magistrate, Calcutta took cognizance of the offence and issued process and thereafter on transfer the case came before the learned Metropolitan Magistrate, 8th Court, Calcutta for trial. Before the trying Magistrate a petition was filed on behalf of the accused-opposite parties challenging the maintainability of the said proceeding on the grounds that there was no specific averment in the petition of complaint to connect the accused with the commission of offence and that the said court had no territorial jurisdiction to try the ease. It was further urged before the said Magistrate that the complaint was not maintainable also under the under the deeming provision of Explanation 2 to s. 405 I.P.C. The learned Magistrate rejected the first two contentions as raised by and on behalf of the accused-opposite parties hut allowed the prayer on the other ground holding that the accused-opposite parties cannot to be the employers within the meaning of Explanation 2 to s.405 I.P.C. It is against such finding and order that the complainant-petitioner has moved this court by this revisional petition. 4. 4. It is the definite case of the petitioner-complainant that the accused opposite parties as the principal employers of the factory in the name and style of M/s. Sterling Pharmaceutical Co. Pvt. Ltd. had deducted a sum of Rs.2388 10 p. as employees' share of contribution, from the wages of the employees in the month from August, 1980 to April, 1981, but had failed to deposit the said amount to the E.S.I. Fund, within the specified time as required under and in the -manner as provided by the Act and Regulations and as such, is said to have committed criminal breach of trust in respect of the aforesaid money within the meaning of Explanation 2 of s. 405 I.P.C. The question whether Such deductions have been made and there is non-compliance of such statutory provisions regarding the deposit of such funds can be fully and conclusively determined in course of trial. Bus facts remains that the complaint has been filed on the allegations as made above. The learned Magistrate has however discharged the accused persons from their bail bond on a finding that the proceeding is not maintainable against them as they are not 'employers' within the meaning of Explanation 2 to section 405 IPC though they may be 'principal employers' under E.S.I. Act, for which, they might have been prosecuted under s. 85 of the said Act. In coming to his finding, as such, the learned Magistrate has relied upon a decision of Monoj Kumar Mukherjee, J. reported in 1985(1) CHN page 113, wherein His Lordship held that 'principal employers' within the meaning of E.S.I. Act, cannot be said to be the 'person' being the 'employer' within the meaning of deeming provision of Explanation 2 to s. 405 I.P.C. and as such, these principal employers cannot be prosecuted under s. 406 I.P.C. The ratio of the decision in that case in short is that such explanation can only be used against an 'employer' which generally means the person who employs and in the case of a company, it is company which is the 'employer'. To quote exactly, the reasoning of the reasoning of the learned Judge is that "under s. 406 I.P.C. however, the deeming provision of Explanation 2 of s. 405 could apply only to an 'employer' and not to a 'principal employer'. To quote exactly, the reasoning of the reasoning of the learned Judge is that "under s. 406 I.P.C. however, the deeming provision of Explanation 2 of s. 405 could apply only to an 'employer' and not to a 'principal employer'. In the absence of any definition of 'employer' under the Indian Penal Code the ordinary meaning to the term 'employer' has to be given and that necessarily means the person who employs. Under s. 11 of the Indian Penal Code the word 'person' includes any Company or association or body of persons whether incorporated or not and it necessarily follows that "he Indo-Japan Steel Ltd. which is an incorporated company will be the employer in respect of its employees. In other words, it has been held that the 'principal employer' within the meaning of E.S.I. Act cannot be equated with 'employer' within the meaning of Explanation 2, in the absence of a specific provision in the Indian Penal Code to warrant such equation. 5. It has been argued by Mr. Moitra appearing on behalf of the complainant-appellant that a director or directors of a company as occupiers within the meaning of s. 2(17) of the Act read with s. 2(n) of the Factories Act have the ultimate control over the affairs of the factory and therefore can be said to be the 'principal employers as defined tinder s. 2(17) of the E.S.I. Act. In developing his contention Mr. Moitra has further argued that the expression 'employer' as used in Explanation 2 to s. 405 IPC is wide enough to include principal employers as defined in the E.S.I. Act. Mr. Moitra in this connection has referred to and relied upon a subsequent decision of this court delivered by Shamsuddin Ahmed, J as reported in 1986 (II) Calcutta High Court Notes, page 128. In his analysis of such Explanation, Shamsuddin Ahmed. Mr. Moitra in this connection has referred to and relied upon a subsequent decision of this court delivered by Shamsuddin Ahmed, J as reported in 1986 (II) Calcutta High Court Notes, page 128. In his analysis of such Explanation, Shamsuddin Ahmed. J. has observed that a 'person' who is liable under Explanation 2 has been amply described by 2 following clauses namely "being an employer" and "who deducts the employees contribution from the wages payable to the employees for credit to the Employees State Insurance Fund held and administered by the Employees State Insurance Corporation established under the Employees State Insurance Act." Reference has also been made in this connection to the provisions of sub-s. 2 of S. 40 of the E.S.I. Act providing that "notwithstanding anything contained in any other enactment but subject to the provisions of this Act and the Regulations if any made thereunder the principal employer shall in the case of an employee directly employed by him (not being, an exempted employee). be entitled to recover from the employee the employees contribution by deduction from his wages and not otherwise." In the opinion of the learned Judge therefore the person referred to in Explanation 2 is an 'employer' who under the authority of s. 40, sub-s. 2 can deduct the employees' share of the contribution from their wages. In coming to his conclusion the learned Judge has observed that there can be no escape from the position that the expression "person" appearing in Explanation 2 clearly refers to the principal employer as defined under the E.S.I. Act. This aspect in the second clause of Explanation 2 was not properly considered by Monoj Kumar Mukherjee, J. in coming to his decision (S.K. Agarwalla & ors. v. Employees' State Insurance Corporation & anr.) reported in 1985, Vol 1, Calcutta High Court Notes, page 113 (supra). With due respect, I am in full agreement with the view expressed by Shamsuddin Ahmed, J. in coming to his decision in this subsequent case reported in 1986 (II) Calcutta High Court Notes, page 129 (supra) (Employees State Insurance Corporation v. Ashutosh Adhikary & ors.) This view also finds further support in the earlier Division Bench decision reported in 1982 (I) CHN page 112 (Balgopal Goenka V. State of West Bengal & ors.) and also in 1982 (II) CHN page 223 (K.N. Genda & anr. V. The State). V. The State). Although the question raised in this case was not directly raised for consideration in those case's but even then it was observed that "the Explanation 2 to s. 405 is really not an Explanation but some addition to the section and that addition has no retrospective operation" and after such addition "for non-payment of employees' contribution a person can be held liable under S. 405 of the Indian Penal Code." 6. It may be said at the same time that unlike the other Acts of similar nature, the principle of vicarious liability has not been introduced under the E.S.I. Act making, thereby the principal employers only liable for commission of any offence for doing any act in contravention of the provisions of such Act and as such only the principal employers and not the company can be proceeded against for making any default in payment of the employees' contribution to the fund in violation of the Act. Since the director or for the matter of that Managing Directors can deduct the employees' contribution from their wages and are liable to credit the same to the E.S.I. fund holding such amount in trust, it is only they who as the 'persons being employers' can make such default in payment and therefore can be held liable for violation of the said Act as contemplated in Explanation 2 to s. 405 IPC. Even though conceding the position that a director of a company can be brought as the principal employer within the meaning of the word occupier as mentioned in s. 2(17) of the E.S.I. Act, it should be borne in mind that such occupier in respect of a factory as defined in s. 2(n) of the Factories Act, 1948, means the person who has ultimate control over the affairs of the factory. The proviso (ii) to Clause (n) of s. 2 of the Factories Act lays down that in case of a company anyone of the directors shall be deemed to be the occupier. This has reference, in case of a factory, to anyone of the directors who has ultimate control over the affairs of the company. The proviso (ii) to Clause (n) of s. 2 of the Factories Act lays down that in case of a company anyone of the directors shall be deemed to be the occupier. This has reference, in case of a factory, to anyone of the directors who has ultimate control over the affairs of the company. In the instant case, of the 4 accused opposite parties, no 1 Shri K. Chowdhury has been described in the petition of complaint (Annexure A) as well as in the cause title of the revision petition as the managing director Accused/opposite party no. 2 is a lady and accused-opposite party nos. 3 and 4 are simply described as director. In the absence of any other averment in the petition of complaint showing that they were also the persons having ultimate control over the affairs of the factory they can not be said to be principal employers within the meaning of s. 2(17) of the E.S.I. Act. Therefore liability for the offence alleged cannot be extended to all the directors save and except the person who at the material time was in ultimate control over the affairs of the company. The criminal proceeding therefore can proceed only against the managing director, and not aga1nst the rest of the accused-opposite parties against whom the proceeding shall stand quashed. In view of what has been stated above therefore I am inclined to hold that the accused-opposite party no. 1 Sri K. Chowdhury the managing director, who is the principal employer in respect of the factory is liable to prosecution under s. 406 IPC. 7 The result is the petition is allowed. The impugned order passed by the learned Magistrate dated 6th August, 1985, is, therefore subject to above modification is set aside and the rule is made absolute. Rule made absolute in part.