The Managing Director of a company cannot be considered an 'employer' within the meaning of Explanation I to Section 405 of the IPC, and a prosecution under Section 405 of the IPC against the Managing Director without prosecuting the company is not maintainable.

Kanchan Chakraborty, J.

1) Prabhash Kumar Basu who has been made an accused in Nagarkata police station case no. 58 of 2006 dated 28.10.2006 under Section 406/409 of Indian Penal code, has taken out this application praying for quashing of the proceeding on the grounds that :

i) that he is not an ‘Employer’ coming within the mischief of explanation i) and ii) of Section 405 of IPC;

ii) that protection given to the persons by explanation ii) is also to be extended to the person coming under explanation i) in view of equal protection as envisaged under Article 14 of the Constitution;

iii) that the company being the ‘Employer’ has not been made an accused; and

iv) two persons held responsible for the offence alleged which can not be possible in view of explanation ii) of Section 405 of IPC;

2) Petitioner Prabhash Kumar Basu was arraigned as an accused person on the basis of one F.I.R. lodged by Bijoy Kumar Sarkar, the Enforcement Officer, Employees Provident Fund Organization, Jalpaiguri. It was alleged that he being the Owner-cum-Managing Director of Carron Tea Estate failed to deposit employees contribution towards employees provident fund although he deducted a sum of Rs. 321,117 from the monthly salary of the employees of the Tea Estate for the period June 2006 to August 2006. On the basis of said F.I.R. Nagarkata police station no. 58 of 2006 was started against him and another one under Section 406 and 409 of Indian Penal Code. Investigation was ended in a charge-sheet dated 29.11.2006 under the above mentioned Sections. The petitioner has come up with this application praying for quashing of the proceeding against him on the ground already stated.

3) Mr. Sekhar Basu, learned Counsel appearing on behalf of the petitioner submitted that in view of the decision of the Hon’ble apex Court in Employees State Insurance Corporation Vs. S. K. Agarwal & Ors., reported in (1998) 6 Supreme Court Case 288 and the decision of this Court in Satish Kumar Jhunjhunwala Vs. the State of West Bengal reported in (2008) 3 Cal LT 484, the petitioner can not be prosecuted under Section 406 and 409 of the IPC because the word ‘Employer’ does not include against any Director. He submitted further that in ordinary parlance the company is the employer and not its director, either singly or collectively in order to attract the provisions of Section 405 of Indian Penal Code. He contended further that when the benefit of this principle is given to the persons coming under explanation ii), it should be extended to the person coming under explanation i) of Section 405 of IPC because Article 14 of the Constitution speak about equal protection of law.

4) Mr. Das, learned Counsel appearing on behalf of the Regional P.F. Authority contended that the petitioner has been mentioned in the F.I.R. as Managing Director of Carron Tea Estate owned by Basu P. Private Limited. So, in view of definition of the word ‘Employer’ given in Section 2 (e) of the employees provident fund and miscellaneous provisions Act, 1952, he can well be prosecuted for committing under Section 405 of IPC. He also refers to the decision of the Hon’ble Apex Court in Srikanta Dutta Narasingha Raja Wodiyer Vs. Enforcement Officer, Mysore reported in AIR 1993 SC 1656 in support of his contention.

5) Mr. Das, learned Counsel appearing on behalf of the opposite party contended that in the instant case the petitioner can not be prosecuted under Section 409 of IPC as he is not a public servant as defined in Section 21 of the IPC.

6) Section 405 of the IPC reads as follows :

“Section405. 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 suc