PRADIP KUMAR BISWAS, J.

( 1 ) BY filing the instant application under section 401 read with Section 482 of the Code of Criminal Procedure, one Mr. R. L. Kanoria and four others have come up before this Court seeking to quash the proceeding being Case No. C/2323/97 now pending before the learned metropolitan Magistrate, 3rd Court, Calcutta under Section 406 of I. P. C. and/or for setting aside the order dated October 7, 1997 passed by the aforesaid learned Magistrate in the aforesaid proceeding alleging that they are the directors of the Carbon Composites (India)ltd. , (hereinafter referred to as the said company) and the said company was engaged in the business of manufacturing and processing of various types of sports goods and they had a factory at Falta Processing Zone, sector-I.

( 2 ) FURTHER it has been alleged by the petitioners that the Insurance Inspector of the complainant has lodged a complaint and subsequently a proceeding under Section 406 of I. P. C was initiated before the aforesaid court against these petitioners for non-deposit of the Employees State Insurance corporations contributions (hereinafter referred to as the E. S. I.), which had been deducted by them from the wages and salaries of the employees of the said company during the period from June 1995 to August 1995 to the E. S. I. Fund within the statutory time and such sum was to the tune of Rs. 5,788. 30p.

( 3 ) IT has further been alleged that the aforesaid allegation was against these petitioners upon misconception of law and in the complaint itself, the complainant has wrongly defined the status of the petitioners as directors of the said Company vis-a-vis as "principal employers".

( 4 ) IT has also been alleged that the complainant on his fanciful conjectures had tried to define that these petitioners as occupiers of the factory and thereby made them responsible for depositing of the employees share of contribution which has been deducted by the "said company", into the e. S. I Fund.

( 5 ) IT has further been alleged that employees of the petitioners who have been employed at the factory have been employed by the said factory itself and the said company is the "principal employer" of its employees and the present petitioners as Directors of the said company are in no way personally responsible to pay contributions under the e. S. I. Act, 1948 as they do not come under the purview and ambit of the definition of the nomenclature "principal employer".

( 6 ) BEING aggrieved by and dissatisfied with the initiation and continuation of the aforesaid proceeding being case No. C/2323/97 pending before the learned , Metropolitan Magistrate, 3rd Court, Calcutta, the petitioners have approached this forum for quashing of the aforesaid proceeding.

( 7 ) 1 have heard the learned advocate of the parties before me at length. Mr. S. S. Roy, learned counsel appearing for the petitioners drawing my attention to a decision reported in 1988 Cr. L. J. 4027 in the case of Employees state Insurance Corporation v. S. K Aggarwal and Ors. , has submitted before me that Section 2 (17) of the Employees State Insurance Act, defines the "principal employer" as either owner or occupier taking care of all eventualities. When the owner of the factory is the principal employer, there is no need to examine who is occupier. The owner will be the principal employer under Section 40. Therefore, even if the definition of "principal employer" under the Employees State insurance Act, 1948 is read in explanation 2 to section 405 of the Indian Penal Code, 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 the employer of its employees at the head office. In any event, in the absence of any express provision in the indian Penal Code incorporating the definition of "principal employer" in explanation 2 to section 405 of I. P. C. , this definition cannot be held to apply to the term "employer" i

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