D.G.R. Patnaik, J.

1. Petitioners have prayed] for quashing the order dated 26.11.19871 passed by the learned Judicial Magistrate, Dhanbad in G.R. No. 3584 of 1985 arising out of Chirkunda P.S. Case No. 245 of 1985, whereby the learned Court below has taken cognizance for the offence under Section 406, IPC against the petitioners and also for quashing the entire criminal proceeding pending against them vide aforesaid order.

The primary ground taken in support of the prayer is that the order of cognizance as passed by the learned Court below is bad both on points of law as well as on facts due to the reason that the learned Court below has failed to appreciate that even if taking the entire allegations in the complaint against the petitioners to be true, no offence under Section 406, IPC could be attracted. Another ground on which equal emphasis has been placed is that since the allegation refers to the alleged violation of the Employees Provident Fund Act and since the Act being a special Act contains penal provision in respect of the violation of the provisions of the Act, the offences under the Indian Penal Code can not be attracted, nor can the petitioners be tried for any offence under Indian Penal Code much less for the offence under Section 406, IPC. Besides the aforesaid two grounds, it has also been contended that the case was instituted against the petitioners by suppressing material facts, which if revealed, would have firmly established that no offence under Section 406, IPC or even under Section 14 of the Employees Provident Fund Act could be made out against the petitioners.

2. Heard learned Counsel for the petitioners and learned Counsel for the State as also learned Counsel for the opposite party No. 2.

3. For better appreciation of the grounds advanced, reference in brief may be made to the facts of the case. The case against the petitioners was registered at the police station on the basis of the FIR lodged by the Provident Fund Inspector/opposite party No. 2 alleging therein that the present petitioners being partners of a firm namely M/s Jaiswal Rolling Mills had deducted specific amounts from the wages of the individual employees of the firm towards provident fund contribution from December, 1983 to March, 1985, but the amount collected, together with the contribution to be made by the employee, was not promptly deposited in the provident fund account of the employees. This fact was detected by the informant in course of his inspection of the factory of the petitioners on 1.10.1985. It is alleged that under the Provident Fund Family Scheme meant for the benefit of the employees of the firm, the amount towards the provident fund contribution deducted from the wages of the employees, was to be compulsorily deposited every month and statement of such deductions an deposits was to be forwarded to the Provident Fund Commissioner, Non-performance of the aforesaid duties amounted not only to the violation of the Act and rules under the Provident Fund Family Scheme, but also amounts to criminal misappropriation of the money belonging to the employees. A written report to the informant though prepared on 8.10.1985, the case was registered at the police station after drawing up a formal first information report on 20.12.1985. At the conclusion of the investigation, police submitted charge-sheet recommending trial of the petitioners for the aforesaid offence and on the basis of the charge-sheet, vide impugned order dated 6.11.1987, the learned Court below took cognizance of the offence and issued summons against the petitioners directing them to appear and face trial.

4. Elaborating the grounds advanced, learned Counsel for the petitioners submits that though written report of the informant was drawn up on 1.10.1985, but before the case was finally registered at the police station, the entire arrears of the Provident Fund dues was deposited by the firm with the Provident Fund Commissioner and intimation to this eff