The main legal point established in the judgment is that the mens rea and dishonest intention are essential for offenses under Sec. 409 of the IPC, and the proceedings cannot be continued against an individual without the involvement of the establishment in the case.

JUDGMENT/ORDER

1. The petitioner is before this Court calling in question proceedings in C.C.No.7283 of 2017 pending before the IV Additional Chief Metropolitan Magistrate, Bengaluru arising out of Crime No.499 of 2015 registered for offences punishable under Ss. 406 and 409 of the IPC.

2. Heard Sri Noor Ul Hussain, learned counsel appearing for petitioner, Sri K.S. Abhijith, learned High Court Government Pleader appearing for respondent No.1 and Smt. B.V. Vidyulatha, learned counsel appearing for respondent No.2.

3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:- The petitioner claims to be an employee of M/s Vasan Healthcare Private Limited (hereinafter referred to as 'the Establishment' for short) from 2012 up to 13/9/2017. During the said period, he further claims to have donned several rolls in the Establishment and was for some time Senior Vice-President, Human Resources and was also authorized to sign certain forms in connection with the business of the Establishment including the forms of Employees Provident Fund. It appears that during the period from August 2014 to May 2015 the Establishment deducted provident fund from the wages of employees but had not deposited the said amount with the Provident Fund Organization. The amount totaled to Rs.95, 58, 104.00. Based upon this, a complaint comes to be registered on 6/8/2015 before the 1st respondent alleging offences punishable under Ss. 406 and 409 of the IPC. The petitioner claims to have been unaware of the said crime registered against him. On coming to know that crime has been registered and the Police after investigation have filed a charge sheet, the petitioner on securing all the documents has knocked at the doors of this Court calling in question the proceedings in the said criminal case.

4. The learned counsel appearing for the petitioner would contend that on 15/9/2016 the 2nd respondent/Organization had registered about 21 complaints against the Establishment and its Chairman one Mr.A.M.Arun before the Special Court for Economic Offices alleging non-payment of aforesaid contributions and in all the cases the said Chairman is acquitted and the petitioner is replaced in his place pursuant to an order passed by this court. Later the petitioner is also discharged of his liability before the Special Court for Economic Offences. Now on the same set of facts, the present criminal case is sought to be continued against the petitioner alone without making the Establishment as an accused in the proceedings. He would submit that the offences alleged can never be laid against the petitioner.

5. On the other hand, the learned counsel appearing for the 2nd respondent/Organization would seek to contend that this Court clearly found that it was the petitioner who was responsible for non- deposit of the funds to the Organization and mere discharge in the proceedings for economic offences will not absolve the petitioner of the offences under the IPC . Therefore, she would seek dismissal of the petition.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.

7. The afore-narrated facts are not in dispute and are, therefore, not reiterated. The position of the petitioner as being the Vice-President of the Establishment at the relevant point in time is again a matter of record. What is germane to be noticed is the genesis of the problem. The Establishment between August 2014 and May 2015 did not remit contributions that were deducted from the salaries of employees of the Establishment to the Organization. The reason behind non-remittance is that the Bank accounts of the Establishment were attached by the Income-Tax Department in several cases. On the ground that the Establishment had not remitted the amounts, two proceedings were initiated - one, setting the criminal law in motion by registering Crime No.499 of 2015 for offen