Y. B. BHATT, J. ( 1 ) ). The State of Gujarat has preferred this appeal challenging the judgment and order of acquittal dated 4th November 1988 passed by the Chief Judicial Magistrate Baroda in Criminal Case No. 932 acquitting the accused of offence under Section 408 read with Section 114 of IPC. ( 2 ) ). The complaint lodged by the complainant who is the Provident Fund Inspector under the Employees Provident Funds and Misc. Provisions Act 1952 alleges that the company by the name of Prithvi Cotton Mills Ltd. is a company registered under the Companies Act and that the same is covered by the Employees Provident Funds and Misc. Provisions Act 1952 that the accused Nos. 1 and 2 are the Director and Factory Manager respectively of the said company and are therefore the persons responsible for the implementation of the said Act that they were under an obligation to make the appropriate deductions from the salary of the employees and after addition of the necessary contribution by the employer company pay the aggregate amount within 15 days from the end of the relevant month into the specified account with the State Bank of India. The complaint alleges that neither the deduction made from the wages of the employees nor the employers contribution in respect of the months of June to November 1986 have been deposited with the specified account of the State Bank of India till the date of the complaint. The complaint asserts that the deductions had in fact been made but the relevant amounts have not been paid into the specified account. On the basis of this complaint the accused were tried for an offence under Section 408 read with Section 114 of IPC. ( 3 ) ). Mr. K. C. Shah learned Counsel for the appellants has taken me through the evidence on record as also judgment impugned in the present appeal. It becomes obvious from the evidence on record that so far as the months of June to November 1986 are concerned deductions had been made by the employer-company in respect of which the accused were persons responsible under the said Act but the amount so deducted as also the employers contribution had not been paid into the specified account of the State Bank of India until 5 days after the filing of the complaint. ( 4 ) ). ( 4 ) ). The trial Court appears to have been misled by the fact that the necessary payment has been made soon after the filing of the complaint albeit in independent proceedings taken under the said Act. The trial Court also appears to have been misled by the evidence led by the accused to the effect that the employer-company was in financial difficulties and that the companys bankers would not permit withdrawal of amounts from the companys account since the companys withdrawals had exceeded the drawing limits. In short the financial condition of the company at the relevant time was weak and it was unable to make the deposit for lack of funds. This factor though it may be said to have been established by the accused has no relation or nexus with whether an offence has been committed under the relevant provisions of IPC or not. ( 5 ) ). Mr. A. V. Trivedi learned Counsel for the accused ultimately had to concede that inability to pay would be no defence under the relevant provisions of IPC. ( 6 ) ). In the context of facts of the present case the relevant provisions are Sections 405 and 406 of IPC. ( 7 ) ). Section 405 of IPC reads as under: "405. Whoever being in any manner entrusted with property? or with any dominion over property dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied which he has made touching the discharge of such trust or willfully suffers any other person so to do commits criminal breach of trust. " Explanation 1: A person being an employer of an establishment whether exempted under Section 17 of the Employees Provident Funds and Miscellaneous Provisions Act 1952 (19 of 1952) or not who deducts the employees 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 for 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. Explanation 2: xxx xxx xxx. On a plain reading of Explanation I it becomes obvious that when deduction has been made from the wages payable to an employee for the purpose of crediting the amount to a Provident or a Family Pension Fund such person shall be deemed to have been entrusted with the amount for the purpose of contribution so deducted by him and if any default is made in payment of such contribution in violation of the said law such person shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law. ( 8 ) ). On the facts of the case it has been established that so far as the months of June to November 1986 are concerned the relevant deduction had been made from the wages of the employees but the same had not been deposited into the relevant account with the State Bank of India within the statutory period. Under the circumstances the deeming provision contemplated by Explanation 1 to Section 405 comes into play. Since the accused persons are responsible for the said action within the meaning of the said Act both the accused must be deemed to have dishonestly used the said amount of contribution in violation of the direction of law. Once the accused are deemed to have dishonestly used this amount even for a temporary period Section 406 of IPC is immediately attracted which prescribes punishment for criminal breach of trust. ( 9 ) ). Once the accused are deemed to have dishonestly used this amount even for a temporary period Section 406 of IPC is immediately attracted which prescribes punishment for criminal breach of trust. ( 9 ) ). Looking to the specific provision of Section 405 which is admittedly attracted the approach of the trial Court to the effect that the Companys financial position did not permit it to make the necessary deposit becomes irrelevant. In view of the deeming provision contained in Explanation 1 to Section 405 the financial ability of the employer or otherwise becomes irrelevant. ( 10 ) ). The fact that the charge as framed against the accused was in respect of Section 408 of IPC is not strictly relevant nor is it fatal to the prosecution case inasmuch as the facts alleged in the complaint clearly pertain to commission of an offence viz. criminal breach of trust. The fact that Section 408 has been referred to in the charge instead of Sections 405 or 406 would not be fatal to the prosecution case. This position is also not disputed by learned Counsel for the accused. ( 11 ) ). On the facts of the case once it is established that the accused have dishonestly used the amount of the said contribution in violation of the direction of law the offence of criminal breach of trust is necessarily established. ( 12 ) ). Under the circumstances the judgment and order of acquittal is clearly unsustainable and amounts to a perversity in law. The same is therefore required to be reversed. The accused are5 therefore convicted of the offence under Section 405 which is punishable under Section 406 of IPC. ( 13 ) ). This takes me to the question of punishment. On a query being put to Mr. A. V. Trivedi learned Counsel for the accused he submitted that he is prepared to make submissions on behalf of the accused on the question of sentence and that he is authorised to state on behalf of the accused that the accused need not be heard personally in this regard. Accordingly he has made his submission on the question of sentence. ( 14 ) ). According to Mr. Trivedi the conviction which is now being recorded can be said to be a technical conviction arising only on account of the deeming fiction created by Section 405 of IPC. Accordingly he has made his submission on the question of sentence. ( 14 ) ). According to Mr. Trivedi the conviction which is now being recorded can be said to be a technical conviction arising only on account of the deeming fiction created by Section 405 of IPC. In fact although the employer-company was in difficult financial situation at the relevant point of time which fact has been established on the record of the present case the company has in fact made the necessary deposit including the employers contribution within 5 days of the complaint being filed. In other words the employer has taken immediate action as soon as it came to know of the filing of the complaint and has made provision for making the deposit in spite of the very difficult financial position. In other words he has submitted that though technically an offence may have been committed the same was not committed voluntarily or intentionally or With a knowledge that the same is an offence. On the facts and circumstances of the case he has submitted that only a token punishment is called for. ( 15 ) ). On a total consideration of these submissions as also the submissions made by learned APP in this regard I am of the opinion that the conviction on the facts and circumstances of the case does not call for any sentence of imprisonment. I am of the opinion that the imposition of a fine would be sufficient and would meet the ends of justice particularly inasmuch as the offence was committed as early as in the year 1986 1 therefore impose upon each of the accused a punishment of fine of Rs. 5000. 00 each. Time to pay the fine is granted upto 30th April 1995 in default each of the accused shall undergo RI for three months each. ( 16 ) ). The appeal is therefore allowed accordingly. .