(1) HEARD Mr. Satrajit Sinha Roy, the learned Advocate, appearing on behalf of the petitioners, Mr. Swapan Kumar Mullick, the learned Advocate, appearing on behalf of the State as well as Mr. Anil Kumar Gupta, the learned Advocate, appearing on behalf of the Provident Fund Authorities.

(2) THE only point that arises for consideration in this criminal revision, whether a case registered under sections 406/409 of the Indian Penal Code against the employer for non-depositing the employees contribution to provident fund deducted from the wages payable to the employee is liable to be quashed, on subsequent deposit of the said amount.

(3) MR. Sinha Roy, the learned Advocate, appearing on behalf of the petitioner pointed out before this Court that an FIR has been lodged alleging commission of offence punishable under sections 406/409 of the Indian Penal Code against the present petitioners, the company as well as its three Directors for non-depositing a sum of Rs. 13,73,978/- which they deducted from the salary of the employees as the contribution towards their respective provident fund. He further submitted after institution of the aforesaid case the petitioners have deposited their entire amount of money with the Provident Fund Authorities and in support of such claim he draws the attention of this Court to the xerox copy of the receipts showing making of such payment annexed with the instant criminal revisional application. Mr. Sinha Roy further submitted that in view of subsequent deposits of the said amount in question the instant prosecution against the petitioners is liable to be quashed.

(4) IN this connection Mr. Sinha Roy relied on a decision of a Division Bench of our High Court in the case of Jasoda Glass and Silicate and Ors. vs. Regional provident Fund Commissioner and Ors. , reported in 2002 (2) CHN 407 and submitted before this Court that this Honble Court after elaborately considering the every pros and cons of the matter directed the concerned Magistrate to drop the proceedings against the petitioners therein, in the event, it was found that the entire dues have already been paid.

(5) ON the other hand, Mr. Anil Kumar Gupta, the learned Advocate, appearing on behalf of the Provident Fund Authority vehemently opposed the prayer for quashing. Mr. Gupta submitted before this Court that the said case relates to the offences punishable under the Provident Fund Act but not relates to any offence punishable under Indian Penal Code. He further submitted that subsequent payment of amount, in any event, does not obliterate commission of an offence under Indian Penal Code and at best that would be a mitigating circumstances, when after conviction the question of imposition of sentence will arise. In this connection, he relied on an unreported decision of the Division Bench of our High Court, in the case of Universal heavy Mechanical Lifting Enterprise and Anr. vs. Union of India and Ors. , in connection with Matter No. 97 of 1993. The relevant portion of the said judgment is quoted herein below:

"we have given the matter our anxious thoughts and we are of the considered view that under section 14 (1a) of the Act any person who commits a default ixxn complying with the provisions of section 6 or clause (a)of subsection (3) of section 17 or paragraph 38 of the scheme, is liable to be punished. The amounts realized by the appellants along with their own contribution had to be deposited by the appellants under section 6 of the aforesaid Act and they having not paid the amounts within the stipulated time, the offence stands committed and any subsequent deposit would not cause a waiver of the prosecution. That apart, by virtue of the amendment brought in the statute, nonpayment of the employees share of contribution amounts to criminal misappropriation within the meaning of the penal statute and temporary misappropriation be also criminal misappropriation within the meaning of law. Subsequent payments even though accept