The ingredients of the offences under Section 14 (1) of the Employees' Provident Fund Act and Section 406 of the Indian Penal Code are different, and therefore, a prosecution under Section 406 is not barred by Article 20 (2) of the Constitution or Section 300 of the Code of Criminal Procedure, even if the facts are the same.

The petitioner who is the Proprietor of the factory under the name and style of M/s. Poddar Iron Industries was prosecuted by the respondent No. 2 under Section 14 (1) of the Employees' Provident Fund Act for not making payment of employees' contribution for the period between September, 1974 and September, 1975 before the S. D. J. M. Howrah. The petitioner was convicted and sentenced to pay fine in default imprisonment in all the cases. Thereafter, the petitioner was prosecuted under Ss. 406 and 409, I. P. C. on the complaint of respondent No. 2, being G. R. Case No, 104/76. It is against this prosecution that the petitioner has come up before this Court.

2. The petitioner's Advocate submits that the prosecution under Sec. 406 I. P. C. cannot go on as it is violative of Art, 20 (2) of the Constitution and also the mandatory provision of Section 300, Cr. P. C. The petitioner filed an application before the Judicial Magistrate, Howrah, challenging the maintainability of the prosecution in view of provisions of Art. 20 (2) and Section 300, Cr. P. C.

3. The learned Advocate for the petitioner has submitted before me that the facts on the basis of which, the petitioner was prosecuted and convicted under S. 14 (1) of the Employees' Provident Fund Act, are the same on the basis of which, the petitioner is being prosecuted for the offence under S. 406, I. P. C. Hence this liberty is being jeopardised twice and as such the proceedings cannot go on in view of the provision of Art. 20 (2) of the Constitution which provides that no person shall be prosecuted and punished for the same offence more than once. Apart from the point taken as indicated above, the petitioner has submitted before me that the present prosecution cannot go on as the amount that the employer deducts from the employees by way of provident fund deduction and the contribution of the Employer do not constitute entrustment as defined in Section 405 of the Indian Penal Code. In this connection the petitioner has drawn my attention to a decision by N. C. Talukdar and A. K. De, JJ. reported in (1975) 79 Cal WN 538. Their Lordships were considering the question whether a person who had been convicted for an offence under S. 14 of the Employees' Provident Fund Act and the Employees' Provident Fund Scheme, 1952, commits criminal breach of trust, if he does not send the employees' contribution to the proper authority as required under the Act and also under the scheme. It has been held by Their Lordships there that

"In order to constitute legal entrustment within the meaning of Sec, 405 of the Penal Code, five ingredients are necessary, the complainant must be the owner of the property alleged to have been entrusted; there must be a transfer of possession; such transfer must be made by somebody who has no right excepting that of a custodian; and such entrustment must be made to a person not to a company or a firm.

Any sum deducted by an employer from the wages of an employee as contribution to Provident Fund under the Employees' Provident Fund Scheme, 1952, although deemed to be entrusted to the employer under para. 32 (3) of the Scheme falls short of the essential ingredients of the offence under Section 406 of the Penal Code."

Relying on this decision the learned Advocate for the petitioner prays that the proceedings against his client under S. 406, I. P. C, pending before the learned Judicial Magistrate be quashed. Since that decision of the Division Bench the I. P. C, has been amended by S. 9 of Act 38 of 1975 by the Parliament. To the amended Penal Code under Section 405 of the Indian Penal Code an explanation has been inserted, viz., Explanation 2 which reads as follows:-

"A person being an employer who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 shall be deemed