The judgment established that the timely deposit of provident fund contributions and the satisfaction of the ingredients of criminal breach of trust are essential for maintaining criminal proceedings.

N.W. SAMBRE, J.

1. The matter is on final hearing board. Respondent No. 2 - original complainant, who appears in person, is consistently absent. The matter is part heard.

2. Heard learned Counsel for the applicant and learned Additional Public Prosecutor.

3. Facts as are necessary for deciding present application are as under :

It is claimed by respondent complainant in a complaint being Regular Criminal Case No.738 of 1999 filed in the Court of Judicial Magistrate, First Class, (Court No.3) Dhule that present applicant was an office bearer of Indira Gandhi Memorial Foundation, Dhule, which was running Dadasaheb Swaroopsingh Naik Ayurved Mahavidyalaya, Nagaon. It is claimed by respondent complainant that he was employed as a lecturer in the said Ayurved college. The role attributed to the applicant in the said complaint is, he being President of the said Memorial Foundation, was duty bound under the statute, particularly under the provisions of Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short, Provident Funds Act) to deduct contribution of employee and deposit the same along with the contribution by the employer to the said authority. It is claimed that though the amount was deducted from salary of the complainant, instead of depositing the same every month, it was deposited at the end of the year thereby causing loss to the complainant and financial gain to the present applicant and the society. It is claimed that the said act on the part of applicant accused amounts to criminal breach of trust and is punishable under Section 406 read with Section 34 of the Indian Penal Code.

4. Learned Judicial Magistrate, First Class (Court No.3), Dhule, on 24th November, 1999 after considering the contents of the complaint and other material on record, was pleased to issue process for offence punishable under Section 406 read with Section 34 of the Indian Penal Code. The said order is questioned in the present application.

5. While questioning the legality and maintainability of the proceedings against the applicant, learned Counsel for the applicant would urge that it is an admitted position that the amount of provident fund was deducted from the salary of the complainant and after adding contribution by the employer society, same was deposited with the competent authority under the Provident Fund Act. Learned Counsel would then urge that though the amount is deposited late in point of time, neither monetary loss is caused to the present complainant nor any illegal financial gain is made by the applicant or society. He would then submit that the alleged incident, according to complainant, had taken place some time in 1995 to 1997, however, complaint came to be filed in 1999 and in view of section 468 of the Code of Criminal Procedure, the complaint is time barred and not maintainable.

6. Learned Counsel would then invite attention of this Court to the judgment of the Apex Court in the matter of Provident Fund Inspector, Faridabad v. M/s Jaipur Textile, Faridabad and another, reported in A.I.R. 1987 SC 1738 so as to canvass that once the contribution towards provident fund was deposited and nothing was outstanding qua duty to be performed by applicant, the prosecution in such eventuality is not maintainable.

7. Learned Additional Public Prosecutor, in absence of original complainant, submitted that what was expected of, was to supervise deposit of the amount of provident fund contribution in the capacity of President of society by the applicant. Though accused Nos. 3 and 4 are discharged, however, they are required to perform their duties qua functioning of association/trust in question under the supervision of the applicant. It is the applicant, who has failed to perform and supervise working of the trust. He would then urge that the amount was due to be deposited from April, 1995 to March, 1997, instead of depositing the amount on monthly basis, same was deposited at the fag end of the year, thereby causing