A prosecution may be quashed when the defendant has rectified the underlying offense and pursuing charges serves no effective purpose.

ORDER :

J. C. DOSHI, J.

1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ”the Code”), the petitioners have prayed for quashing and setting aside FIR being C.R.No.I – 60 of 2018 registered with Navrangpura Police Station, for the offences punishable under Sections 406 , 409 and 114 of the IPC as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioners herein.

2. Brief facts of the case are as under:-

2.1 The allegations in short as narrated in FIR are to the effect that the applicants are alleged to have misappropriated a sum of Rs.47,06,332/-, being provident fund contribution of its employees, by not depositing the same with the office of Provident Fund Commissioner. As per the allegation, the said amount was used by the applicants for their personal use and thereby, they have committed the aforestated offences. Hence, present petition.

3. Learned advocate, Mr. KJ Panchal appearing for the petitioners referring to the judgments in cases of (1) Savindersing Bhatti Vs. State of Gujarat , Criminal Misc. Application No.8949 of 2010 (2) BR Daga, Managing Director, Air Control and Chemical Engineering Company Ltd. Vs. State of Gujarat and another , Criminal Misc. Application No.6879 of 2009 (3) Sangramsinh Gaikwad Vs. State of Gujarat and another , Special Criminal Application No.1909 of 2009 as well as judgment of the Hon’ble Apex Court in case of KL Chachra @ Krishan Lal Chachra Vs. State of Jharkhand , AIR online 2019 SC 2038, would mainly argue that though the petitioners were facing financial crunch and could not deposit share of provident fund of their employee with the department within stipulated time period, subsequently, they have deposited entire fund of the share of their employee. He would further submit that various proceedings were started under the provisions of the Provident Fund Act/Scheme against the petitioners and various demands were raised pursuant to such proceedings, however, the petitioners have already deposited funds of their share. He would further submit that now the prosecution may not be continued against the petitioners as it is a futile exercise. He would further submit that the petitioners have also informed to the Regional Commissioner, PPFO, ESIC that their business activity has been closed with effect from 1st December 2017. Therefore, he would submit that in these peculiar facts and circumstances, the prosecution against the petitioners may not be continued. Upon such submission, learned advocate Mr. Panchal requests to allow the petition.

4. On the other hand, learned advocate, Ms. E. Shailaja appearing for the private respondent would submit that section 29 of the Employee Provident Fund Scheme, 1952 defined “contribution”. She would further refer to section 32 of the Scheme and submit that any sum deducted by an employer from the wages of an employee under the Scheme shall be deemed to have been entrusted to him for the purpose of paying the contribution in respect of which it was deducted. She further referred to section 38 of the Scheme and submit that the employer is duty bound to deposit his share of contribution within 15 days of the close of every month, failing, which offence under section 405 of the IPC is made out. She also referred to Explanation 1 of section 405 of the IPC and submit that since the petitioners being an employer has not deposited the amount of provident fund after deducting it from the salary of the employee for more than four years, he has admittedly committed the offence under section 405 of the IPC having punishment in section 406 of the IPC. She would further submit