JUDGMENT U.B. Saha , J. Theinstant application is filed by the petitioners who are proprietor and Managerof Ranibari Tea estate and Madhu Sudhan Tea estate under Section 482 of the Cr.P.C . read with Article 227 of the Constitution of Indiafor quashing the criminal proceeding in G.R. case No. 219 of 2003 underSections 406/409 IPC pending in the court of the Judicial Magistrate, 1stclass, Dharmanagar , North Tripura .Heard Mr. A.K. Bhowmik , learned senior counselassisted by Mr. R. Datta , learned counsel appearingfor the petitioners on instructions of Mr. S. Ghosh ,learned lawyer on record. Also heard Mr. A. Lodh ,learned counsel appearing for the respondent No. 1 and Mr. A. Ghosh , learned P.P. appearing for the respondent-state 2. Theprosecution case, in short, is as follows: One S. Das , the Enforcement Officer, Employees Provident Fund Organisation , Sub-Regional Office, Agartala ,the respondent No. 1 herein, lodged a complaint on 27.5.2003 to the OfficerIn-charge, Kadamtala Police Out Post under Churaibari police station against the accused petitionersalleging, inter alia , that during his inspection of Ranibari Tea Estate on 26.5.2003, it was noticed that thepetitioners deducted a sum of Rs . 3,08,503/- from thesalary/wages of the employees of the Tea garden as employees’ share ofprovident fund contribution for the period from August, 2002 to April, 2003,but did not deposit the said amount to the provident fund authority and thusviolated the provisions of Section 6 of the Employees’ Provident Funds andMiscellaneous Provisions Act, 1952 (for short, hereinafter referred to as ’theAct’) read with Para-38 of the Employees Provident Fund Scheme thereto and thuscommitted offence under Section 405 IPC. On the basis of the said complaint, aspecific police case was registered being Churaibari P.S. Case No. 30 of 2003 under Sections 406/409 IPC. 3. Thelearned Sub-Judicial Magistrate, 1st Class, Dharmanagar ,upon receipt of the charge sheet took cognizance of the offence underSection406/409 IPC against the three accused including the present petitionersand thereafter transfer the case to the Judicial Magistrate, 1st Class, Dharmanagar for disposal of thecase in accordance with law. Appearing before the learned Magistrate, thepetitioners made a prayer for discharging them. They have also raised questionof maintainability of prosecution as the complainant did not obtain sanction asrequired under Section 14 of the Act. Appearing before the learned Magistrate, thepetitioners made a prayer for discharging them. They have also raised questionof maintainability of prosecution as the complainant did not obtain sanction asrequired under Section 14 of the Act. The learned Magistrate after hearing theparties on question of maintainability held that for prosecution under penalcode, previous sanction of the Central Provident Fund Commissioner or any otherofficer as authorized by the Central Govt. is not necessary, such previoussanction is necessary only in case of prosecution under any provisions of theAct and finally rejected the prayer for discharging them from prosecution videhis order dated 2.8.2004 and directed the petitioners to appear on 6.10.2004for framing of charge. 4.Being dissatisfied with the said order, the petitioners preferred a revisionapplication under Section 397 of the Cr.P.C . beforethe learned Additional Sessions Judge, Dharmanagar ,North Tripura which was registered as CriminalRevision No. 6 of 2004 and after hearing the parties, the revision petition wasdismissed by the learned Addl. Sessions Judge holding that the revision did notlie against the order of decision of framing the charge being the same isinterlocutory order. 5.Aggrieved by the said order of the learned Additional Sessions Judge, Dharmanagar , the present accused petitioners preferred theinstant petition for quashing the entire criminal proceeding relating to theG.R. Case No. 219 of 2003 on the ground that before completion of theinvestigation and filing of the charge sheet, the present accused petitionersadmittedly deposited the amount relating to provident fund as demanded by theprovident fund authority, the respondent No. 1. 6. Thepetitioners have also contended in the instant petition that after beingdeposited the provident fund amount as demanded by the provident fundauthority, it would not be proper to proceed with the aforesaid police caseagainst the petitioners who are admittedly the senior citizens. 7. Mr. Bhowmik , learned senior counsel while urging for quashingthe criminal proceeding being G.R. Case No. 219 of 2003 pending in the court ofJudicial Magistrate, 1st Class, Dharmanagar wouldcontend that the petitioners had no intention for defalcating/misappropriatingthe money collected from the employees as their share, rather they could notdeposit the same within time due to certain problem. But admittedly they havedeposited/paid the amount to the provident fund authority in respect of whichthe prosecution case was instituted before completion of investigation by theinvestigating authority. More so, the accused petitioners are also admittedlysenior citizens. But admittedly they havedeposited/paid the amount to the provident fund authority in respect of whichthe prosecution case was instituted before completion of investigation by theinvestigating authority. More so, the accused petitioners are also admittedlysenior citizens. Thus, it would not be proper to proceed with the prosecutioncase in view of the decision of the Apex Court in Narendra Pratap Narain Singh & Anr . v. State of U.P. AIR 1991 SC 1394 . 8. Insupport of his aforesaid contention, he has also placed reliance on a decisionof the Apex Court in Provident Fund Inspector, Faridabad v. M/s. Jaipur Textile, Faridabad & Anr , AIR 1987 SC 1738 , wherein the Apex Courttaking note of the fact that the respondents therein paid all the arrears ofprovident fund in respect of which the prosecution was instituted, directed notto proceed with the prosecution against the respondents. 9. Hehas also placed reliance on a decision in Adoni Cotton Mills Ltd. & Ors v. Regional Provident Fund Commissioner & Ors.1995 Supp (4) SCC 580, wherein the Apex Court closed the proceeding of the prosecution initiated on the basis of the impugnednotices as the appellants have deposited the amendment during pendency of the appeal. 10. Insupport of his contention as stated supra, he has also taken us to paragraph-3of the said Report wherein the Apex Court noted, inter alia , that ......Weare informed that two of the appellants have subsequently died. The offencealleged is the failure to deposit the amounts under the enactments for a shortperiod of four months immediately following the discharge of the appellant-company from the receivership. During the pendency ofthese appeals, this Court granted stay of further proceedings by way ofprosecution on condition that the appellants deposited an amount of Rs . 40,000/- and furnished a bank guarantee for a sum of Rs . 60,000/- to the satisfaction of the Registrar of theHigh Court within a period of six weeks. We are informed that the sum of Rs . 40,000 has been deposited and that the bank guaranteefor Rs . 60,000 has also been furnished. We are alsoinformed that the amount in respect of which there was default would also be inthe region of about Rs . 90,000. We are informed that the sum of Rs . 40,000 has been deposited and that the bank guaranteefor Rs . 60,000 has also been furnished. We are alsoinformed that the amount in respect of which there was default would also be inthe region of about Rs . 90,000. Taking into accountall these circumstances, we are of the opinion that this is a case in which theproceedings by way of prosecution need not be pursued provided the amountsdeposited in Court and secured by the bank guarantee are paid over to theRegional Provident Fund Commissioner for credit to the appropriateaccounts...... 11. Mr. Lodh , learned counsel in his fairness submits thatadmittedly when the complaint was lodged by the respondent No. 1, the presentaccused petitioners committed offence and were liable to be prosecuted, but asduring investigation period, the amount collected from the employees under theprovident fund scheme has already been deposited, the court may passappropriate order in the interest of justice. 12. Mr. Ghosh , learned P.P. also submits that in view of thedecision of the Apex Court in Adoni Cotton Mills Ltd.& ors (supra), it would be proper to quash the prosecution case in G.R.case No. 219 of 2003 pending before the learned Judicial Magistrate, 1st Class, Dharmanagar as the allegations are mainly fornon-compliance of the provision of the Act. There is no doubt that while therespondent No. 1 lodged the complaint, at that point of time, the presentaccused petitioners admittedly did not pay the provident fund amount collectedfrom the employees with the provident fund authority and as such committedbreach of Trust punishable under Section 405 IPC. Thus, lodging of a caseagainst the present accused petitioners was not improper on the part ofrespondent-provident fund authority. But when during the investigation, admittedly,the present accused petitioners paid the provident fund amount for whichcomplaint was lodged and consequent thereto a specific case was initiated, thenthe investigating authority could have submitted a final report taking note ofthe fact that the accused petitioners have already deposited/paid the requiredamount with the provident fund authority. The learned trial Court also couldhave considered the fact while passing the order of framing of charge takingnote of the fact as stated supra which might have been indicated in the chargesheet itself that the accused petitioners deposited the amount of providentfund for which the instant complaint was lodged. 13. The learned trial Court also couldhave considered the fact while passing the order of framing of charge takingnote of the fact as stated supra which might have been indicated in the chargesheet itself that the accused petitioners deposited the amount of providentfund for which the instant complaint was lodged. 13. Byway of lodging a complaint and consequent thereto, a prosecution ended intrial, normally would punish a person, but would not release the amount forwhich the complaint was lodged against the accused petitioners under the PenalCode though there are penal provisions available in the Act for recovery of theamount from the employer who after collecting the share of the provident fundof employees did not remit/deposit the same with the provident fund authority.In the instant case, the purpose of lodging the complaint is though to punishthe accused petitioners who are proprietor and Manager, but the real purpose isto realize the amount collected from the employees as their share to bedeposited against their provident fund with the authority so that the employeesmay not suffer. 14. Aquestion also arises as to whether, when in a special statute for certainoffence like non-deposit of the realized money, i.e., provident fund with theappropriate authority, penal provision prescribed in general statute like penalcode would apply or not. It is a settled law that when a special statute isenacted for a specific purpose with a specific mechanism to achieve the objectof the statute and when there is penal provision available for commission ofoffence committed under the provisions of that statute then the general penalprovisions in penal code would not apply as that would frustrate the purpose ofthe statute and more so money which has realized from the employees as theirprovident fund share, that cannot be recovered from the employer except takingaid of Section 457 of the Cr.P.C or appropriate civilsuit. 15.Admittedly, in Section 14 of the Act prescribed penalties for the offence likeany payment to be made by the employer under the Act, scheme, pension scheme orthe insurance scheme or of enabling any other person to avoid such payment,knowingly makes or causes to be made any false statement or falserepresentation shall be punishable with imprisonment for a term which mayextend to one year or with fine of five thousand rupees or with both. 16. 16. InSub-Section (1A) of Section 14 of the Act also stated that an employer whocontravenes, or makes default in complying with, the provisions of section 6 orclause (a) of Sub-section (3) of section 17 in so far as it relates to thepayment of inspection charge, or paragraph 38 of the Scheme in so far as itrelates to the payment of administrative charges, shall be punishable withimprisonment for a term which may extend to three years, but (a) which shallnot be less than one year and fine of ten thousand rupees in case of default inpayment of the employees’ contribution which has been deducted by the employerfrom the employees’ wages; 17. Inclause (b) of sub-section (1A) of the aforesaid Section also stated thatpunishment shall not be less than six months and a fine of five thousandrupees, in any other case; provided that the court may, for any adequate andspecial reasons to be recorded in the judgment, impose a sentence ofimprisonment for a lesser term. 18.Admittedly, the complainant/informant, the Enforcement Officer of EmployeesProvident Fund in his complaint stated that during his inspection of the saidestablishment on 6.5.2003, he had found that the employer Nav Ratan Pugalia and Rajendra Kumar Singh had deducted a sum of Rs . 3,08,500/- from the salary, wages of the employees asemployees share of P.R. contribution for the period from 8/2002 to 04/2003 andhave not deposited the amount with the statutory fund in violation of Section 6of the Act read with Para 38 of the EPF Scheme and non-remittance of PF moneyafter deducting the employees share from the salary/wages tantamount to anoffence of Criminal breach of trust as defined under Section 405 of the IPC. 19. Nowquestion is when the complaint was lodged relating to offence of non-deposit ofthe amount with the statutory fund in violation of Section-6of the Act readwith para 38 of the EPF scheme as to whether it wouldcome within the purview of criminal breach of trust as defined in provision ofSection 405 of the IPC. 20. 19. Nowquestion is when the complaint was lodged relating to offence of non-deposit ofthe amount with the statutory fund in violation of Section-6of the Act readwith para 38 of the EPF scheme as to whether it wouldcome within the purview of criminal breach of trust as defined in provision ofSection 405 of the IPC. 20. Inthe instant case though the complainant in his complainant stated regarding theviolation of provision of Section 6 of the Act read with para-38 of the EPFscheme, but admittedly no sanction was obtained under the provision of 14AC of theAct though in the said provisions, it is stated that no court shall takecognizance of any offence punishable under this Act, the Scheme or the pensionscheme, or the Insurance Scheme except on a report in writing of the factsconstituting such offence made with the previous sanction of the CentralProvident Fund Commissioner or such other officer as may be authorized by theCentral Government, by notification in the Official Gazette, in this behalf, byan Inspector appointed under section 13. Thus, it can be said that previoussanction of the Central Provident Fund Commissioner or any such other officeras may be authorized by the Central Govt. is sine qua non for taking cognizanceof any offence punishable under the Act. 21. Italso appears that the accused No. 1 and 2 are the Director and the Manager ofthe Ranibari Tea Company limited and the complainthas been filed against them for not remitting the amount deducted from theemployees to the EPF account. 22. InEmployees’ State Insurance Corporation v. S.K. Agarwal ,1998 Cr. L.J. 4027, the Apex Court has made it clear once for all that the word’employer’ does not include the ’Director’ for the purpose of prosecution. The Apex Court also took into consideration the definitionof the word ’employer’ as it occurs in section 2(17) of the ESI Act, 1948.According to the definition, ’principal employer’ in a factory means ’owner’and/or ’occupier’ of the factory and includes the managing agency of such owneror occupier or legal representative of declared owner or occupier and where theperson as has been named as Manager of the factory persons so named. The ApexCourt held that for the purpose of prosecution of employer under section 405 ofIPC the definition of the word’ employer’ as it occurs in the ESI Act, 1948cannot be borrowed simply because of the fact that such definition has got nomanner of application to either of the explanation to section 405 of the IPC.Thus, in absence of any express provision in the Indian Penal Codeincorporating the definition of ’Principal Employer’ in Explanation 2 toSection 405 the definition in ESI Act cannot be held to apply to the term’Employer’ and Explanation 2. 23. InState of Haryana v. Bhajanlal ,1992 Supp (1) SCC 335 and R.P. Kapoor v. State ofPunjab, AIR 1960 SC 866 , the Apex Court laid down the guideline in the matterof quashing a criminal prosecution. 24. Bythis time it is settled that where a statute creates a new offence, which wasnot an offence at common law and imposes a penalty in respect of such offencelike the offence under Section 14 of the Act, a person committing such anoffence can only be proceeded against under the statute which creates such anew offence and cannot be indicted under the general law. The principle isstated with clearness and precision in Hawkins’ Pleas of the Crown, Book II,Ch. 25, Section 4 and is as follows:-- Alsowhere a Statute makes a new offence which was in no way prohibited by theCommon law, and appoints a peculiar manner of proceeding against the offenderas by commitment, or action of debt or information, etc., without mentioning anindictment, it seems to be settled to this day that it would not maintain anindictment, because mentioning the other methods of proceeding seem impliedlyto exclude that of indictment. 25.There is no doubt that when the penal offence under the General law like thepenal code is not in conflict with the penal provision of the special statutethen both in general law and under special law, prosecution can be initiatedagainst the person who committed offence punishable either under general law orspecial law but cannot be under the provisions of both the laws. In the instantcase, the complaint is lodged for committing an offence under penal code, notfor commission of penal offence under the special statute i.e. the Act. Thus,this court is unable to accept the contention of Mr. In the instantcase, the complaint is lodged for committing an offence under penal code, notfor commission of penal offence under the special statute i.e. the Act. Thus,this court is unable to accept the contention of Mr. Bhowmik that previous sanction is necessary for filing complaint to initiate prosecutionfor alleged commission of offence of breach of trust against the petitioners asthey are admittedly the Director owner of the tea garden and the Manager of thegarden under whom the employees-workers are working and are also responsiblefor management of the garden as well as to deposit the share of the providentfund collected as employees share to the provident fund authority. Thus, itcannot be said that the accused petitioners were not responsible at all fornon-deposit of money collected from the employee. 26. Inthe instant case, the learned trial Court has decided to frame the charge forcommitting offence punishable under Section 406 of the Indian Penal Code, i.e.,punishable for criminal breach of trust. The criminal breach of trust isdefined in Section 405 wherein it is stated that whoever being in any mannerentrusted with property, or with any dominion over property, dishonestlymisappropriates or converts to his own use that property, or dishonestly usesor disposes of that property in violation of any direction of law prescribingthe 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, orwillfully suffers any other person so to do, commits ’criminal breach oftrust’. 27. Inview of the Explanation 1 of the aforesaid provision, there is no doubt thatthe amount deducted from the employees in view of the Para-38 of the EPFScheme, the employer was deemly entrusted fordepositing the money (employees’ contribution) with the provident fundauthority, along with its own share. But the question is as to whether theamount deemly entrusted was dishonestlymisappropriated or converted for the own use of the accused persons or theyhave dishonestly used or disposed of that entrusted property in violation ofany direction of law. In complaint, there is no such specific allegation thatthe accused petitioner after deducting the share of employees provident fund,they have dishonestly misappropriated or converted the entrusted amount fortheir own use. 28. Inthe instant case, admittedly, the money deducted from the employees as theirshare of provident fund has already been deposited while the investigation wasgoing on and before filing the charge sheet as would be evident from chargesheet . 28. Inthe instant case, admittedly, the money deducted from the employees as theirshare of provident fund has already been deposited while the investigation wasgoing on and before filing the charge sheet as would be evident from chargesheet . Thus, it would not be proper to proceed withthe prosecution in view of the decision of the Apex Court in Provident Fund Inspector, Faridabad (supra) and Adoni Cotton Mills Ltd. & ors being in the complaintnowhere stated that the money which was deducted was either withheld ornon-deposited with an intention to use those amount for their own purpose. 29.According to this court, after being deposited the amount with the providentfund, authority by the accused petitioners after lodging of the complaint andbefore filing the charge sheet, it would not be proper to allow the prosecutionto proceed with the accusation against the present petitioners and more so, atthe time of filing of this petition, the accused petitioner No. 2 was about 60years, i.e., almost a senior citizen and by this time, another 8 years periodcompleted as the instant criminal misc. application was filed in the year 2005and the stay order was granted by this Court vide order dated 2.3.2005 in Crl . M. Application No.. 47 of 2005 arising out of theinstant petition ( Crl . M.C. 5 of 2005), when almostin a similar matter, the Apex Court also closed the proceeding for prosecutionagainst the employer in the case of Adoni CottonMills Ltd. & ors. ( supra ). In the light of theaforesaid discussion, the proceeding relating to prosecution against thepresent petitioners in G.R. case No. 219 of 2003 pending in the court of theJudicial Magistrate, 1st class, Dharmanagar , North Tripura is hereby quashed. Consequently, the judgment dated21.12.2004 passed by the learned Addl. Sessions Judge, North Tripura , Dharmanagar in Criminal revision 6(3) of 2004 is hereby quashed and consequent thereto, theorder dated 2.8.2004 passed by the learned Judicial Magistrate in GR case No.219 of 2003 for framing charge is also set aside and quashed. Crl . M. application is disposed of.