Prosecution under S.409 IPC is not barred by previous conviction under S.14 of the Employees' Provident Funds Act as they constitute different offences.

1. This revision has been filed against the order of the Sessions Judge by which he dismissed the applicants' revision.

2. A complaint was filed against the applicants for an offence under S.409 I.P.C. The allegations were that the accused being the employers had deducted from the wages of the complainant and the other workmen the amount which they were liable to contribute under the Employees' Provident Funds Act but had not deposited the same as required by law. It was alleged that the accused had misappropriated this amount and were accordingly liable to be punished for an offence under S.409 I.P.C.

3. The accused in the case filed an application praying that the prosecution be not continued as the same was barred by S.403 Criminal P.C. and also by the absence of sanction contemplated by Sub-Section (3) of S.14 of the Employees' Provident Funds Act . The contention of the accused was that on their committing default in making the deposit of the amounts deducted out of the employees' wages, they had already been prosecuted and punished under S.14 of the Employees' Provident Funds Act , and were accordingly not liable to be prosecuted and punished again on the basis of the same omission made by them in not complying with the provisions of law.

4. The learned Magistrate overruled both the objections and dismissed the application. In revision the Sessions Judge also took the view that the prosecution was not barred either by reason of S.403 Criminal P.C. or S.14(3) of the Employees' Provident Funds Act .

5. Learned counsel for the applicants has contended that the prosecution is barred by reason of S.403 Criminal P.C. because the offence for which the applicants were convicted under S.14 of the Employees' Provident Funds Act is identical to the offence contemplated by S.409 I.P.C. According to him the two constitute the same offence. The contention is that it is not really the name of the offence or provision of law under which it is punishable but the act or omission of the accused which has to be taken into consideration for applying the bar of S.403 Cr. P.C. I am unable to accept that the offences are the same. S.403(1) Criminal P.C. which is equivalent to S.300(1) of the Criminal P.C. 1973, provides that a person who has once been tried by a court for an offence and convicted of such offence, shall not be liable to be tried again for the same offence. The other condition under S.403 is not relevant for the present case. S.403 bars the trial for the same offence and not for different offences which may result from the commission or omission of the same set of acts. This was made clear by the Supreme Court in the case of State of Bombay v. S.L. Apte ( AIR 1961 SC 578 ) : (1961 (1) Cri LJ 725). In that case the Supreme Court had to consider the offence under S.105 of the Indian Insurance Act and S.409 of the Indian Penal Code . It was held that the ingredients of the two offences were not the same and hence the prosecution under the two sections would be a prosecution for two separate offences. It was pointed out that S.405 I.P.C. requires entrustment of property while S.105 of the Insurance Act did not require any such entrustment. Similarly, the ingredient of misappropriation and conversion contemplated by S.405 I.P.C. was not an ingredient in the offence under S.105 of the Indian Insurance Act. The position is similar in the present case. The ingredients of S.14 of the Employees' Provident Funds Act are not the same as of S.405 I.P.C. The offence under S.409 I.P.C. and S.14 Employees' Provident Funds Act cannot, therefore, be deemed to be the same offence. S.403 Criminal P.C. accordingly will not bar the trial.

6. The other contention of the learned counsel about the want of sanction has also no merit