ANOOP V. MEHTA, J.

( 1 ) THE petitioner, a Director of the Company, M/s deve Paints Limited, formerly known as M/s Garware paints Limited, (hereinafter referred as Company) has invoked the provisions of Section 482 of the Code of criminal Procedure and basically prays to quash and set aside the proceeding of Criminal Case No. 18 of 1996, pending before the Judicial Magistrate F. C. , 2nd Court, thane, Maharashtra.

( 2 ) THE proceeding arose in pursuance to the complaint dated 18/8/1995/ 30/8 1995, filed by the Provident Fund, Asstt. Commissioner, Regional p. F. Commissioner, Maharashtra and Goa.

( 3 ) IT has been alleged that the company and its officers have committed offence punishable under Section 405 and 406 of Indian Penal Code by committing the criminal breach of trust as defaulted in the payment of the contribution of the family pension fund, even though deducted from the salary of the employees of the said company. Criminal breach of trusty - Section405 (extract) is as under:"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 employeess 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 nave 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 law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. "the person or company is liable to be prosecuted if, defaulted, in making payment of collected contribution under the family pension fund under the Employees provident Funds and Miscellaneous Provisions Act, 1952 (for short Act),is the relevant Act under which, the proceedings has been initiated. The basic provision is section 14a of the Act. "14a. Offences by Companies.- (1) If the person committing an offence under this Act, (the scheme or the pension Scheme or the insurance Scheme) is a company, every person, who at the time of the offence was committed as 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: provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) notwi thstanding anything contained in sub-section (1), where an offence under this Act ( the Scheme or (the (pension) Scheme or the insurance Scheme) has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. "

( 4 ) THE basic requirement, therefore, to hold the company liable and or to proceed against or punish accordingly, is the persons liable to be prosecuted those who are in-