M. P. CHINNAPPA, J. ( 1 ) THE petitioner herein reported to the hubli rural police alleging that the respondents have misappropriated the amount collected from the employees of the 'navanadu dinapatrike' and on the basis of that report, the said police registered a case and after investigating the same filed the charge-sheet in c. c. No. 169 of 1988. In the meantime it appears, the petitioner also filed a private complaint before the court in c. c. no. 144 of 1988. As these two cases arose from the complaints of the same complainant on identical allegations against the common accused persons, both the cases were clubbed at the request of the prosecution and tried by the learned magistrate in c. c. No. 469 of 1989. In support of the case of the prosecution p. ws. 1 and 2 were examined and exs. P. 1 to p. 5 were marked. After assessing the evidence, the learned magistrate acquitted both the accused persons. Being aggrieved by that judgment and Order, the employees' state insurance corporation (for short, 'the corporation') has filed this petition under Section 401 of the cr. P. c. ( 2 ) HEARD the learned counsel for the petitioner and the learned counsel for the respondents. ( 3 ) IT is the case of the petitioner that the 'navanadu kannada daily press' is covered under the corporation and the press has collected the money from the employees being their contributions but it has failed and neglected to pay the amount within 21 days from the date of collection of the amount, thereby the corporation has misappropriated the amount. The 1st respondent is the managing director and the 2nd respondent is the director who are in charge and responsible for the day-to-day transactions of the press. Therefore, they have committed the offence and are liable to be convicted under Section 406 of the IPC. As indicated above, two complaints came to be filed and the magistrate has clubbed them and tried together and passed the order. ( 4 ) THE learned counsel for the petitioner contended that the reasoning of the learned court below that the petition is time barred cannot be accepted. As indicated above, two complaints came to be filed and the magistrate has clubbed them and tried together and passed the order. ( 4 ) THE learned counsel for the petitioner contended that the reasoning of the learned court below that the petition is time barred cannot be accepted. She also further argued that the non-examination of the complainant and also the investigating officer cannot be held to be a lacuna in the prosecution case, since there are sufficient materials to show that these respondents have collected the money and failed to remit the same to the corporation. ( 5 ) THE learned counsel for the respondents while substantiating the judgment passed by the court below also contended that no case could be made out as against these respondents as they are not the employers as defined under the IPC. Since the press is not an accused, no case could be proceeded against these respondents. It is also further argued that the evidence let in by the prosecution does not establish a case as against these respondents, ( 6 ) IT is also not in dispute that the company is not made accused in this case. In view of this argument, the question that arises for consideration is as to whether the order passed by the court below calls for any interference. ( 7 ) IN this case, the complainant has not been examined on the ground that he is away in america and has settled down there and therefore, the prosecution could not secure his presence before the court to be examined during the trial. P. w. 1 who is said to be the panch witness has turned hostile. He was examined to prove ex. P. 1-the seizure mahazar which was recorded for seizing the books maintained by the company. he has not supported the case of the prosecution. His evidence also is not available to the prosecution to establish that the books were seized. On the other hand he has clearly stated that the books were produced when he was in the police station. P. w. 2 is the inspector. He has specifically stated that the complaint was in the prescribed form and the complainant has put his signature after filling the form. On the other hand he has clearly stated that the books were produced when he was in the police station. P. w. 2 is the inspector. He has specifically stated that the complaint was in the prescribed form and the complainant has put his signature after filling the form. The complaint also discloses that it was lodged against the company as per the subject referred to in the complaint and they have arraigned these respondents as accused persons. Thus, the company is not an accused before the court. The evidence of the complainant was absolutely necessary to show that the allegations made in the complaint are true. Since P. W. 2 knew the signature of the complainant, he had identified the signature found in the complaint. There is nothing to indicate that p. w. 2 was present when the documents were verified in the office of the company. Even to substantiate that the investigation was properly done, the investigating officer also was not examined. Under those circumstances, the trial court has come to the conclusion that the prosecution has miserably failed to establish the guilt of the accused persons. I have carefully gone through the evidence and I am fully satisfied that the court below has rightly rejected the evidence of p. ws. 1 to 3. ( 8 ) THE learned counsel for the petitioner however submitted that non-examination of the complainant and the investigating officer would not in any way affect the case of the prosecution. This argument cannot be accepted in view of certain lacunae found in the prosecution case as indicated above. Therefore, on facts i hold that the trial court has rightly acquitted the respondents. ( 9 ) AT this stage, the learned counsel for the respondents also submitted that since the company is not arraigned as accused who is the employer according to the definition of the Indian Penal Code the complaint should have been rejected by the court. In support of her argument, she has placed reliance on a decision in Employees' State Insurance Corporation V. S. K. Aggarwal and others, wherein their lordships have held:"section 2 (17) of the Employees' State Insurance Act, defines the principal employer as either owner or occupier taking care of all eventualities. When the owner of the factory is the principal employer, there is no need to examine who is occupier. When the owner of the factory is the principal employer, there is no need to examine who is occupier. The owner will be the principal employer under Section 40. Therefore, even if the definition of "principal employer" tinder the employees' state insurance Act, 1948, is read in explanation 2 to Section 405 of the IPC, the directors of the company, would not be covered by the definition of "principal employer" when the company itself owns the factory and is also the employer of its employees at the head office. In any event, in the absence of any express provision in the IPC incorporating the definition of "principal employer" in explanation 2 to Section 405, this definition cannot be held to apply to the term "employer" in explanation 2. The term "employer" in explanation 2 must be understood as in ordinary parlance. In ordinary parlance it is the company which is the employer and not its directors either singly or collectively". ( 10 ) THE learned counsel for the petitioner however submitted that the Section 86-a of the act was not considered by their lordships and therefore, she submitted that the managing director and director also include the employer to proceed against them. Under those circumstances, it is necessary and relevant to refer to Section 86-a which reads:"offences by companies. (1) if the person committing an offence under this act is a company, every person, who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly". from the reading of sub-section (1) of Section 86-a it is clear that any offence committed "under this act" only means that if the complaint is filed against any person or company to be punished under the Act, the complaint can be filed against a person who was in charge of and was responsible to the company for the conduct of the business of the company as well as the company. But admittedly there is no provision under which the court can proceed against a company or its directors for the offence of misappropriation of funds collected from the employees and failed to remit to the corporation. But admittedly there is no provision under which the court can proceed against a company or its directors for the offence of misappropriation of funds collected from the employees and failed to remit to the corporation. Therefore, the complaint was filed under Section 405 of the IPC. There is no provision of law under this act similar to Section 405 of the IPC dealing with the offence of defalcation/embezzlement, etc. Therefore, the complaint was filed for the offence punishable under Section 405 of the IPC. Under the circumstances, it is also relevant to quote explanation 2 to Section 405 which reads:"a person, being an employer, who deducts the employee's contribution from the wages payable to the employee for credit to the employees' state insurance fund held and administered by the employees' state insurance corporation established under the Employees' State Insurance Act, 1948, shall be deemed to have been entrusted with the amount of 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 Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid". from the reading of this explanation it is abundantly clear that if the employees contribution is deducted from the wages payable to the employees, it is deemed that the employer has committed an offence under Section 405. Explanation 2 to Section 405 refers to the person, being an employer is a company. "person" is defined under Section 11 of the IPC which reads: "the word "person" includes any company or association or body of persons, whether incorporated or not". therefore, the meaning of the word "person" used under Section 86-a includes the company and not any individual. Under those circumstances, their lordships referring to the definition of Section 2 (17) of the act have held that in ordinary parlance it is the company which is the employer and not its directors either singly or collectively. Therefore, the contention of the learned counsel for the petitioner that their lordships have not considered Section 86-a of the act cannot be accepted. Therefore, the contention of the learned counsel for the petitioner that their lordships have not considered Section 86-a of the act cannot be accepted. further, she has also referred to the decision rendered in sheoratan agarwal and another v state of Madhya Pradesh , wherein their lordships while considering sections 3 and 10 of the essential commodities act held that where offences by companies are committed, separate prosecution of person incharge or officer of company without prosecuting company is permissible. It is no doubt true Section 10 of the essential commodities act is analogous to Section 86-a of the act. The case before their lordships pertains to an offence under the essential commodities act and not under Indian Penal Code. Therefore, it was held that the person in charge or officer of the company can be prosecuted without arraigning the company as accused. Similarly, if the offence is committed under the esi Act, prosecution can be launched against the person incharge of or officer of the company with or without arraigning the company. That principle is not applicable if the offence comes within the purview of the IPC or any other act. This decision is not applicable to the facts of the case as the offence alleged against the respondent is not under the state employees' insurance corporation. On the other hand, it is an offence under the Indian Penal Code where only "owner" who is employer i. e. , the company only can be prosecuted as held by their lordships of the Supreme Court as referred to above. ( 11 ) SUCH being the case, the definition available under the IPC will have to be looked into. Even in this case, the 1st and 2nd respondents have totally denied that they were the managing director and director respectively of the company during the relevant time. Yet the prosecution has not produced any certificate from the company or from the registrar of companies to show that these two respondents were the officers of the company and were in charge of and responsible for the day-to-day transaction of the company. Even on that aspect also, the complaint was not maintainable as against them. For the foregoing reasons, i hold that the criminal case launched against the respondents 1 and 2 is illegal without arraigning the company as the accused. Even on that aspect also, the complaint was not maintainable as against them. For the foregoing reasons, i hold that the criminal case launched against the respondents 1 and 2 is illegal without arraigning the company as the accused. ( 12 ) FURTHER, the complaint came to be filed on 25-2-1989 as could be seen from the order sheet of the learned trial court. Section 86-a was incorporated by act 29 of 1989 which came into force w. e. f. 20-10-1989. therefore, it is clear as on the date of filing of the complaint, section 86-a was not in the statute book and the petitioner could not have invoked Section 86-a to contend that even without arraigning the company, a prosecution could be launched against the person in charge of or officer of a company. Therefore, for the aforesaid reasons and viewed from any angle, there is no reason to interfere with the order passed by the trial court acquitting the respondents. ( 13 ) ACCORDINGLY, the revision petition is dismissed. --- *** --- .