R. Mukhopadhyay, J. - Heard learned counsel for the petitioners and the learned counsel for the State.

2. In this application, the petitioners have prayed for quashing the entire criminal proceeding in connection with Khelari P.S. Case No. 72 of 1997, G.R. No. 1880 of 1997 including the order dated 4.3.2002, passed by learned Chief Judicial Magistrate, Ranchi, whereby and whereunder, cognizance has been taken for the offence punishable under sections 406, 409/34 of the Indian Penal Code.

3. It appears that an FIR was instituted by the Enforcement Officer, Employees' Provident Fund, Bihar, Ranchi, alleging therein that the employer M/s Lemos Cement Ltd. Khelari has failed to deposit the provident fund amount of the employees/workmen amounting to Rs.12,63,690/- in respect of the period from August, 1996 to April, 1997 in spite of deductions made from their salary/wages. It has been further alleged that the employer M/s Lemos Cement Ltd. Khelari committed a breach of trust in respect of the employees' share of provident fund contribution.

4. On the basis of the aforesaid allegations, Khelari P.S. Case No.72 of 1997 was instituted. After investigation, the case having been found to be true, chargesheet was submitted and thereafter vide order dated 4.3.2002, the learned Chief Judicial Magistrate, Ranchi has been pleased to take cognizance against the petitioners for the offences punishable under sections 406, 409/34 of the Indian Penal Code.

5. It has been submitted by the learned counsel for the petitioners that the petitioners are the Rotational Directors of M/s Lemos Cement Ltd. Khelari and they are not concerned with day to day affairs of the company. He has further submitted that infact the Company having become sick was referred to Board for Industrial and Financial Reconstruction for its rehabilitation under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 and in view of the financial position of the company, the Recovery Officer, Regional Provident Fund Commissioner, had allowed the Company to pay the monthly installment with respect to the provident fund dues of its employees from June, 1994 to December, 1996 in 32 monthly installments. He has further submitted that pursuant to the direction of the Recovery Officer, the entire dues arising out of provident fund contribution of its employees for the aforesaid period was cleared and as such the present proceeding is liable to be quashed. He has referred to explanation to section 405 of Indian Penal Code and has submitted that since the petitioners do not come within the definition of employer as defined in section 2 (e) of the Employees' Provident Fund Miscellaneous Provisions Act, 1952, they cannot be held responsible for non deposit of employees' contribution of provident fund. In this context, he has referred to a judgement in the case of Employees' State Insurance Corporation Vs. S.K. Aggarwal and others, reported in AIR 1998 SC 2676.

6. Learned counsel for the State, on the other hand, has submitted that the petitioners being the Directors in terms of the provision of the Factories Act are directly responsible for non deposit of the employees' provident fund contribution. In this context, he has referred to Explanation to Section 2(e) of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 and submitted that the petitioners come within the definition of an employer and it was their duty and responsibility to deposit provident fund contribution of the employees before the concerned authority.

7. After hearing the learned counsel for the parties and after going through the records, I find that the FIR, which was instituted by the Enforcement Officer, Employees' Provident Fund, Bihar, Ranchi, related to non payment of the employees share of provident fund for the period from August, 1996 to April, 1997. It appears that M/s Lemos Cement Ltd. Khelari became a sick industry and was referred to Board for Industrial and Financial Reco