IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Shampa Dutt (Paul)

CRR 297 of 2023 Rishikesh Das.

Vs.

State of West Bengal & Anr.

For the Petitioner : Mr. Milon Mukherjee, Sr. Adv.

Mr. Biswajit Manna, Mr. S. P. Tewary, Mr. Debajit Kundu.

For the State : Mr. Aditi Shankar Chakraborty, Mr. Sourav Ganguly.

For the P.F. Authority : Mr. Bhaskar Roy Mahapatra.

Hearing concluded on : 23.04.2025 Judgment on : 01.05.2025 Shampa Dutt (Paul), J.:

1. The present revision has been preferred praying for quashing of the proceeding being Special Case No. 9/18 arising out of G.R. No. 2660 of 2018 pending in the Court of the Ld. Additional District & Sessions Judge, 2^nd Court, Special Court, Jalpaiguri.

2. The petitioner is the Director of M/s Labannapur Tea & Agro Pvt. Ltd, having its registered office at 2nd Mile Sevoke Road, Siliguri, District Darjeeling, Pin 734401 and its garden at Post Office Newra, Baradighi, Police Station-Malbazar, District Jalpaiguri, Pin 735230.

3. The said Company is the owner of the said tea estate and the employer within the meaning of Section 2(e) of the Employees' Provident Fund & Miscellaneous Provisions Act, 1956. The said company is covered by the Employees' Provident Fund & Miscellaneous Provisions Act, 1956, and has to pay provident fund dues under the provisions of the said Act in respect of the said tea estate.

4. The financial condition of the said company depends largely on the market conditions. If the market conditions are adverse the said company is unable to make payment of wages and other statutory dues. The company suffered primarily from high cost of labour and other inputs as also low price realisation of its product. However, payment of wages has been made first as a priority to make payment of wages, rations and other statutory dues. The provident fund payment is always made thereafter.

5. The said company has not defaulted in payment of wages. The said company has however, been unable to make timely payment of provident fund contribution towards the employees' share amounting to Rs.5,91,165/- for the period from July, 2016 to May, 2018 as it has been prevented by circumstances beyond its control from making payment of the said provident fund dues in time. However, the said company subsequently paid the total dues.

6. On submission of charge sheet the case is now pending as Special Case No. 9 of 2018 before the learned 2^nd Additional District and Sessions Judge, Special Court, Jalpaiguri.

7. The company paid a sum of Rs.5,91,165/- towards the said employees' share. The provident fund authority issued a letter dated

01.04.2021 as regards the confirmation of the aforesaid payment of Rs.

5,91,165/- for the period 07/2016 to 05/2018.

8. Mr. Mukherjee submits that it has been held by the Supreme Court in Employees' State Insurance Corporation vs. S. K. Agarwal & Ors. that in neither of the explanation under Section 405 of the Indian Penal Code there is found anything to the effect that the Directors of the Company or an establishment may be prosecuted under Section 405 of Indian Penal code for the alleged commission of Criminal Breach of Trust.

9. In both explanations no.1 & 2 to Section 405 of Indian Penal Code, it is the person who is an employer and who deducts employees' contribution is responsible for commission of the offence.

10. It is further stated that a director cannot be termed as an ‘employer’ It has been categorically stated by the Supreme Court that the word 'employer' does not include 'director'. In view of the above, the petitioner being the Director of the company cannot be said to have committed offence under Section 405 (explanation 1) punishable under Sections 406/409 of Indian Penal code and as such the petitioner cannot be prosecuted for commission of default if any by the company, who is not an accused in this case in the criminal prosecution under Section 405 of the Indian Penal Code.

11. It is also submitted