JUDGMENT (ORAL) E.S. Da Silva, J. - By this application the petitioners are challenging the taking of cognizance by the learned Judicial Magistrate, First Class, Vasco-da-Gama, of an offence under Section 406 of I.P.C. in proceedings of Criminal Case No. 36/5/89 instituted by the Police against them in the Vasco Court and the process issued therein against the said petitioners on 7th March, 1991. 2. The Vasco Police filed a charge-sheet in the Court of Judicial Magistrate, First Class, Vasco-da-Gama against the petitioners under Section 406 I.P.C. on the basis of a complaint made to them on 30-11-1988 by one Smt. R. Joseph, Provident Fund Inspector. According to the complaint under Section 406 of I.P.C. The petitioner are charged for committing criminal breach of trust in respect of Provident fund contribution and Family Pension Fund contribution purportedly deducted by the petitioners from the wages of the employees of M/s. Chowgule Brothers, being the petitioner No. 1 V.D. Chowgule its Managing Partner, it is further stated in the complaint that M/s. Chowgule Brothers is an establishment which is covered by the Employees Provident Fund and Miscellaneous provisions Act 1952 (hereinafter referred to as 'the Act') and the schemes framed there under. The said Act and schemes were applicable to the said establishment. Under Para 30 of the Employees Provident Fund Scheme and 9(1) r/w Para 39 of the F.P. Scheme the petitioners were required to pay the employees provident fund and family pensions fund established under the said Act. Under para 38 of the said scheme the petitioners are required also to deposit Such deduction along with equal amount of employees share into the SBI of Employees Provident Fund Account No. 1, Family Pensions Fund No. 10, on Of before 15th of the close of the month for which the wages were payable. In terms of sub-para 3 of para 32 of the Employees Provident Fund Scheme 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 purpose of paying the contribution in respect of his salary out of which the deduction was made. In terms of sub-para 3 of para 32 of the Employees Provident Fund Scheme 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 purpose of paying the contribution in respect of his salary out of which the deduction was made. Further Explanation to Section 405 IPC reads that a person being an employer who deducts the employee's contribution from the wages payable to the employee for credit to the provident fund or family pension establishment by any law for the time being in force shall be deemed to have been entrusted with the amount of contribution as deducted by him and if he makes default in the payment of Such contribution to the fund in violation of the said law shall be deemed to have dishonestly used the amount of the contribution in violation of the direction of law as aforesaid. The complaint further adds that from the wages of the employees the amount payable as the employees share was deducted as per details given in the complaint being the same referring to the month of October, 1988 in the sum of Rs. 23,051/- towards the Employees Provident Fund contribution and Rs. 2837/- towards the share of Family Pension Fund contribution. This amount deducted, however, has not been paid to the Employees Provident Fund Account No. 1 and Family Pension Fund Account No. 10 with the State Bank of India as required by Para 30 of the Scheme. Thereafter in spite of the request made to the partners to pay the amount they failed to do so. Therefore all the petitioners who are personally in-charge of and are responsible for the conduct of the business or the establishment were charge sheeted for committing an offence under Section 406 of I.P.C. 3. The charge-sheet forwarded by the Police to the Court of Judicial Magistrate, First Class, Vasco-da-Gama refers also to the fact that on 16-11-1988 the petitioner sing the employers deducted contribution of employees Provident Fund totaling Rs. The charge-sheet forwarded by the Police to the Court of Judicial Magistrate, First Class, Vasco-da-Gama refers also to the fact that on 16-11-1988 the petitioner sing the employers deducted contribution of employees Provident Fund totaling Rs. 25,000/- for the month of October, 1988 and did not deposit the same before 15th October, 1988 to the Employees Provident Fund Account and dishonestly used the amount of contribution thus committing an offence under Section 406 I.P.C. It was on the basis of this complaint and the charge-sheet that the learned Magistrate passed die impugned Order issuing process against the petitioners. 4. Shri Kakodkar, Learned counsel for the petitioners, on taking me through the charge-sheet has submitted firstly that the on the face of it the charge-sheet is bad, confused and does not disclose any offence on strength of which a summons could be issued against them. The learned counsel further submitted that the complaint also does not give any details as to when the payment was done and when the deposit of the amount deducted along with the Company's contributions was to be made. The learned counsel mew my attention to the panchanama dated 21-12-1988. Which it does not disclose the actual date of the deduction of the amount and the statement Of the Accountant R.R. Naik shows that the payment to the employees was done by the Company on 30-11-1988 which is the date of the complaint. Being so the learned counsel argued that the Court had no jurisdiction to take cognizance of an offence which was not disclosed either in the charge-sheet or in the complaint. It was also submitted that even this High Court under Section 482 had also no jurisdiction to go beyond the papers produced before it to find out whether any offence could be held or revealed from them. The statement of the Accountant Ratnakar Naik shows that the Provident Fund contribution and Family Pension Fund contribution were in respect of wages payable for the month of October, 1988 and which were actually paid on 7-11-1988. 5. The statement of the Accountant Ratnakar Naik shows that the Provident Fund contribution and Family Pension Fund contribution were in respect of wages payable for the month of October, 1988 and which were actually paid on 7-11-1988. 5. Shri Bhobe in his turn submitted that although the charge-sheet is manifestly deficient in its poor drafting and also contains a factually incorrect statement as far as the actual date of the commission of offence is concerned, probably due to a typing mistake, however, from the wording of the complaint dated 30-11-1988 one could easily make out that all the materials of the offence in respect of which the petitioners were to be booked are very much there in the same complaint Hence there was no question of this case any malafide prosecution as contended by Shri Kakodkar which is as Such liable to be quashed. 6. The submissions of Shri Bhobe appear to be correct and deserve acceptance while on the contrary it is difficult to accede to the petitioners learned counsel's submissions advanced on their behalf. A bare perusal of the complaint shows that the same reveals that the petitioners are being prosecuted on account of some delay in depositing the sums. deducted from the employees of the Company along with the share of Provident Fund contribution and Family Pension Fund contribution. The record shows a statement of the Accountant Ratnakar Naik who says also that the petitioners Company effected the payment of the salaries of their employees in respect of the month. of October, 1988 on or about 7th November, 1988 at which time the statutory deductions were made but ultimately deposited the sums deducted along with their contributions towards the scheme of Provident Fund and Family Pension Fund only on 30-11-1988 i.e. on the very day the complaint was lodged. It is true that apparently there was thus a delay of about 15 days only incurred by the petitioners in making the deposit of the money due to the employees of the find. It is also true that the charge-sheet is conspicuously silent as to the correct details of the alleged offence. It is true that apparently there was thus a delay of about 15 days only incurred by the petitioners in making the deposit of the money due to the employees of the find. It is also true that the charge-sheet is conspicuously silent as to the correct details of the alleged offence. But the fact remains that from an overall assessment of the evidence recorded by the Investigating Office during we investigation on the strength of the complaint dated 30-11-1988 it seems easy to conclude that anyone would be in a, comfortable position to understand the teal meaning of the contents of the charge-sheet and become aware of the actual facts on which the prosecution launched against them rests. Being so it is obvious that the more factor the charge-sheet being deficient in nature and silent on certain materials details of the alleged offence becomes totally irrelevant if one is not tempted to succumb to the tendency of subscribing an exaggerated technical approach on Such matters especially when it deals with sins of commission and commission involving criminal offences. I am therefore inclined to hold that it is not permissible for me in the facts and circumstances of the case to embark in such dry exercise and therefore in my view the entire line of arguments of Shri Kakodkar in this regard is to be summarily discarded. 7. It was submitted by Shri Kakodkar that admittedly in the present case the gist of the offence attributed to the petitioners is that there was a delay on their part in depositing the amounts deducted from the salaries of their employees towards the scheme of Provident Fund and Family Pension Fund along with the Statutory contribution for about 15 days. The deposit was done on 30th November, 1988 when it should have been done on 15 the November, 1988. With this regard the learned counsel invited my attention to the broad scheme of the Act in respect of employers liability towards the payment or deposit of the sums deducted from the employees salaries and their amounts of contribution due to them as being payable to the said employees. In this respect Section 6 of the Act speaks of contributions and matters which many be provided for trio in Schemes and establishes the liability payable by pre the employers to the Fund as well as the quantum of such liability. In this respect Section 6 of the Act speaks of contributions and matters which many be provided for trio in Schemes and establishes the liability payable by pre the employers to the Fund as well as the quantum of such liability. Section 14(2-A) which appears to be applicable to this case considering that it is a of case of delay only and not a case of non-payment provides that whoever contravenes or makes default in complying with any provision of the Act or of any condition subject to which exemption was granted under Section 17 shall, if no other penalty sit is elsewhere provided by or under the Act for such contravention or non-compliance, be punishable with imprisonment which may extend to six months, but which shall not be less than one tit month, and shall also be liable to fine which may extend to five thousand rupees. Under Section 14-A which refers to offences by Companies if the person committing an offence under the Act is a Company every Person who at the time the offence was committed was incharge of, and was responsible to, the Company for the conduct of the n business of the Company, as well as the Company, shall be deemed to be guilty of the offence and n shall be liable to be proceeded against and punished accordingly. In terms of Explanation to aforesaid Section 14-A 'Company' means any body corporate and includes a firm and other association of individuals. Section 14-B provides that where an employer makes default in the payment of any contribution to the Fund or in the transfer of accumulations required to be transferred by him the Central Provident Fund Commissioner or such other Officer as may be authorised by the Central Government may recover from the employer by way of penalty such damages not exceeding the amount of arrears as may be specified in the Scheme. 8. Under sub-para (d) of Section 76 of the Employees' Provident Funds Scheme. 1952, (hereinafter called 'the Scheme' which deals with failure to pay contributions. etc. if any person is guilty for contravention or non-compliance with any other requirement of the Scheme which is not provided in remaining sub-paras (a), (b) and (c) shall be punishable with imprisonment which may extend to one year or with fine which may extend to four thousand rupees or with both. etc. if any person is guilty for contravention or non-compliance with any other requirement of the Scheme which is not provided in remaining sub-paras (a), (b) and (c) shall be punishable with imprisonment which may extend to one year or with fine which may extend to four thousand rupees or with both. In its turn Section 14-AC makes the cognizance and trial of the offences under the Act subject to previous permission of the Central Provident Fund Commissioner. According to the aforesaid Section no Court shall take cognizance of any offence punishable under the said Act, Scheme or the Family Pension Scheme or the Insurance Scheme except or a report in writing of the facts constituting such offence made with the previous sanction of the Central Provident Fund Commissioner (hereinafter called 'the Commissioner') or such other Officer as may be authorised by the Central Government by notification, etc. 9. Thus according to Shri Kakodkar a sanction for prosecution is always required in respect of all offences purportedly committed by the employers under the Act on, the basis of a report to be made by the Inspector. The learned counsel contends that the Inspector himself cannot prove any offence against the petitioners before a sanction to prosecute them is obtained from the Commissioner. There should be no dispute that the late payment means default in timely doing the payment which comes under the purview of Para 76 of, the Scheme and Section 14(2-A) of the Act. It was further argued by the learned counsel that assuming that the delay amounts to an offence under Section 406 I.P.C. the Inspector could not even in this case deprive the petitioners from the protection guaranteed to them by Section 14-AC of the Act. It was thus submitted directly by resorting to prosecution under Section 406 of I.P.C. the Inspector indulged in a case of malafide prosecution apparently with a view to sidetrack the difficulties and the bar imposed on him to act on his own by virtue of Section 14-AC. It was further urged on behalf of the petitioner that this Section 14-AC is enacted for the benefit of the employers in case of bonafide delay or failure in payment or deposit of their dues. It was further urged on behalf of the petitioner that this Section 14-AC is enacted for the benefit of the employers in case of bonafide delay or failure in payment or deposit of their dues. According to the learned counsel the Inspector had indeed a choice to prosecute either under the provisions of the Act or under the relevant Section 406 I.P.C. But the learned counsel vehemently contended that this choice could not be left to the whimsical discretion or to the fancies of the Inspector. In his opinion in terms of Section 14-B or 14-AC the decision regarding the exercise of choice should be left exclusively to the Commissioner. Under the Scheme the Inspector could not take any final decision on the matter without reporting to the Commissioner and obtaining his sanction or permission. The ultimate decision should thus rest on the senior most Officer of the Department who is the Central Provident Fund Commissioner. Hence since the Inspector has opted to prosecute the petitioners under Section 406 I.P.C. and chosen the remedy without making a report to the Commissioner and obtaining his prior sanction this amounts to malafide prosecution which is therefore liable to be quashed. The learned counsel further submitted that it is also clearly a case of malafide prosecution against the background of only 15 days delay. Under the Act the Inspector was not bound to prosecute the petitioners at all. He had a choice. By acting as he did the prosecution seems to have been launched for collateral purposes. Such a prosecution which has taken away from the petitioners a valuable rights of being prosecuted only with the sanction of the Commissioner should, in Shri Kakodkar's view, not be allowed to proceed. Hence on this ground alone it should be quashed. The learned counsel elaborated that under the Act, in Such circumstances, three remedies are available to the concerned authorities in terms of the provisions of the Act. The first one is to take resort to Section 14-B. The second one refers to Section 14-AC. In this case the Commissioner might decide on the prosecution: that there is a choice' for the Commissioner to grant or not sanction for the prosecution on the basis of the report of the Inspector. Finally the third one is that upon that report the ultimate question as. In this case the Commissioner might decide on the prosecution: that there is a choice' for the Commissioner to grant or not sanction for the prosecution on the basis of the report of the Inspector. Finally the third one is that upon that report the ultimate question as. to whether the Inspector should be pinnate to prosecute under the Act or under Section 406 I.P.C. this should be again for the Commissioner to decide as to under which Act, Indian Penal Code or Provident Fund Act, to be prosecuted. Thus according to Shri Kakodkar this question lies only on the Commissioner and on nobody else. 10. There seems to be a very valid point on the submissions of the learned counsel in this regard. Indeed the entire scheme of the Act appears to be aimed at ensuring the recovery of the sums due by the employers to the accounts of their employees in respect of the cuts and deductions effected by them on their salaries towards be payment of the Provident Fund and Family Pension Scheme. Section 14-B which by itself can be construed to a certain extent as a penal provision or at least having a penal character is clear in this respect. In addition the Act provides also for other remedies imposing directly criminal liabilities to the errant employers under Section 14-A and Section 14-(2-A) of the Act as well as Para 76 of the Scheme which are also pointers towards that goal. Further and as rightly submitted by Shri Kakodkar Section 14-AC appears to be a provision enacted to expressly protect the bonafide employer who has involuntarily committed default in payment or deposit of his dues. Therefore it is reasonable to infer that if the Act itself has provided expressly for a sanction or demission to be obtained by the Inspector from the Commissioner in all cases of purported offences committed by the employers under the Act prior to their prosecution the logical conclusion is that Such protection is to be extended to the employer also in case the offence under which he is to be prosecuted is the one envisaged and punishable under Section 406 of I.P.C. There is no reason as to why this should not be so. To be noted that Such penal liability of the employer is sought to be enforced on account of certain commissioner or omissions purportedly done by the employers under the provisions of the Act. 11. Shri Bhobe in all fairness has also submitted that although apparently for the prosecution of offences under the Act sanction of the Commissioner is necessary while for the prosecution of offences under Section 406 I.P.C., no sanction is required and there is also no bar or restriction imposed by law, however, it appears that in the fitness of things the protection ensured by Section 14-AC should be available for the employers also in case of their prosecution under Section 406 of the I.P.C. 12. I am, therefore, satisfied that even in case of prosecution of the petitioners under Section 406 I.P.C., a prior sanction of the Commissioner is necessary and required under the scheme of the Act in view of the fact that Such prosecution is sought to be launched on account of their failure or default in complying with their obligations in terms of the Act. 13. The last submission of Shri Kakodkar is based on the above mentioned provisions of Section 14-A of the Act under which only a person who is in-charge and responsible for the conduct of the business of the firm will be liable for prosecution. Shri Kakodkar contends that on the face of the complaint itself it is seen that the complainant has mentioned that the petitioner No. 1 alone as a Managing Partner of the firm. Therefore in the present case at the most only the petitioner No. 1 would be liable for the prosecution in terms of the aforesaid provision and no criminal liability could be demanded from the remaining petitioners. I am referring to this submission of the learned counsel for the only purpose of record since in my view consequent upon the finding given by me with regard to the previous point raised by Shri Kakodkar that prior permission of the Commissioner was required for the Inspector to launch prosecution against the petitioners for an offence under Section 406 I.P.C. there is no need to adjudicate on the aforesaid submission. 14. In the result the petition is bound to, succeed and is hereby allowed in terms of its prayer (a). Accordingly Rule is made absolute in the above terms, with no order as to costs. 14. In the result the petition is bound to, succeed and is hereby allowed in terms of its prayer (a). Accordingly Rule is made absolute in the above terms, with no order as to costs. Petition allowed.