S. THANGARAJ, J.

( 1 ) THIS petition coming on for hearing upon perusing the petition and upon hearing the arguments of Mr. V. Gopinath Senior Counsel for Mr. A. Ganesh. Advocate for the petitioner in both the petitions and of Mr. C. M. Gunasekaran Government Advocate (Cr1. side) on behalf of the respondents in both the petitions the Court made the following order: Cr1. O. P. No. 14224 of 1998 is filed by the accused No. 2 in C. C. No. 249 of 1989 on the file of the Judicial Magistrate No. 1. Tiruppur under Section 482, Cr1. P. C. to quash the said case pending against him. The petitioner and 3 others were the Directors of Tiruppur Cotton Spinning and Weaving Mills Ltd. , Tiruppur and they have collected a sum of Rs. 34,350/-towards Employees Provident Fund and Rs. 4,405/- towards Employees Family Pension Fund from the employees of the said Mill under the Employees Provident Fund Scheme and the Employees Family Pension Fund Scheme during the period between August, 1984 and December, 1984 and failed to contribute, the employers contribution and committed criminal breach of trust in respect of the said amounts and oil the said allegations the Sub-Inspector of Police. North Police Station, Tiruppur filed a charge-sheet against the petitioner and 3 others Directors for the offence under Section 409, I. P. C. which was taken on file by the said Court in C. C. No. 249 of 1989.

( 2 ) CR1 O. P. No. 14255 of 1998: The Sub-Inspector of Police, North Police Station, Tiruppur filed a charge-sheet against the petitioner and another accused, who were Directors of Tiruppur Cotton Spinning and Weaving Mills Ltd. , Tiruppur in C. C. No. 211 of 1989 on the file of the Judicial Magistrate No. 1, Tiruppur alleging that between March, 1987 and May, 1987, they have collected a sum of Rs. 92,711/- from the employees towards Employees Provident Fund and also Rs. 12,554/- towards Family Pension Fund and failed to pay employees contribution and also committed criminal breach of trust in respect of the said sums collected from the employees.

( 3 ) THE petitioners herein have filed these two Cr1. 0. Ps. under Section 482, Cr. P. C. to quash the said two cases pending against them on the file of the Judicial Magistrate No. 1, Tiruppur.

( 4 ) LEARNED Senior Counsel for the petitioners has raised two grounds to quash the said proceedings. (1) The Company alone is responsible for the collection of contribution from the employees towards Employees Provident Fund and Employees Family Pension Fund and to add employers contribution and to pay the said sums before the authorities concerned and the Directors are not responsible either for the collection of employees contribution or making of employers contribution or payment of the said sums before the officers concerned. (2) The Directors of the Company cannot be held responsible for the said charge without the Company having not been made as party.

( 5 ) LEARNED Government Advocate has argued that there are decisions to show that the Directors, who are in the administration of the Company, are held responsible for the failure on the part of the Company, which is the employer. Learned Senior Counsel for the petitioners has not pressed that ground.

( 6 ) THE first ground that the Company is. the employer and the Company alone is liable for the said charge under Section 409, I. P. C. was substantiated by the two decisions relied on by learned Senior Counsel for the petitioners.

( 7 ) THE Calcutta High Court in S. K Agarwala v. E. S. I. Corporation held that though the Directors are immediate employers or principal employers under the Employees State Insurance Act, but cannot be considered to be an employer under the Indian Penal Code and therefore, they cannot be held liable for the failure to deposit the contribution of Employees State Insurance Fund deducted from the employees alongwith the contribution of the employer.

( 8 ) THE Employees State Insurance Corporation has taken it on appeal to the Su