1. Heard counsel for the petitioners. However, no one appears on behalf of the State.

2. This is an application for quashing order dated 31-8-1994 passed by the learned Judicial magistrate Ist Class, Patna in G.R. No. 4085/82 whereby and whereunder the prayer made on behalf of the petitioners for their discharge under S. 239 of the Code of Criminal Procedure has been rejected. It appears that upon a complaint filed by the Provident Fund Inspector, Patna, a case was registered and after submission of charge sheet cognizance of the offence was taken against the petitioners under Ss. 406 and 409 of the IPC. The petitioners thereafter filed an application for their discharge in terms of S. 239 of the Cr. P.C. which has been rejected by the order impugned. Learned counsel for the petitioners submitted that petitioners 1, 2 and 3 were the Directors of Bihar Cotton Mill registered under the Companies Act whereas petitioner No. 4 was the Commercial Manager. Learned counsel further submitted that the petitioners have been prosecuted for non deposit of P.F. amount of the employees of the company. From the complaint petition it appears that a sum of rupees two lacs thirtytwo thousand and odd were collected from the employees of the company but the same were not deposited before the authorities under the Provident Fund Act (hereinafter referred to as the Act). Learned counsel for the petitioner, therefore, submitted that since the petitioner Nos. 1, 2 and 3 are not the Principal employer and occupier of the company in question the present prosecution launched against them is not maintainable and it will be an abuse of the process of the Court. At the same time it is also stated on behalf of the petitioner No. 4 that though petitionerNo. 4 was the Commercial Manager but for the relevant period he was not the Commercial Manager of the company and, therefore, prosecution against him as well is liable to be quashed. It is further submitted on behalf of the petitioners that in view of the explanation 2 to S. 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 employer of the employee as per S. 2(e) of the Employees Provided Fund Act. Explanation 1 to S. 405 of the IPC contemplates that a person being an employer who deducts the employees 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 have been entrusted with the amount for 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.

3. Sec. 2(e) of the Act defines the "employer" in the following terms :(i) in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under clause (f) of sub-sec. (1) of S. 7 of the Factories Act, 1948, the person so named; and(ii) in relation to any other establishment, the person who or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent;]

4. In view of the definition of the employer the employer is the occupier of the company in question and he is a person who has ultimate control over the affairs of the company in view of the definition of the employer and in view of the explanation 1 to S. 405 of the IPC the employer is the person who deducts the employees contribution under the Act from the wages payable to the employees for credit to Provident Fund