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Bombay High Court

ASHUTOSH SATCHIDANAND PANDEYversusTHE STATE OF MAHARASHTRA AND ANR

Decided
Disposal
Disposed Off

Holding

The Court held that no prima facie case exists against the petitioner and therefore quashed the FIR, charge sheet and related proceedings.

Summary

The petitioner, former director and CEO of Kailasa Analytics, was charged under IPC Sections 406 and 409 for the company's failure to deposit statutory Employees' Provident Fund (EPF) contributions for October and November 2017. The company later paid the arrears with interest, but the prosecution continued. The petitioner argued that he was not the director at the time, had no knowledge of the delay, and that the case was covered by the precedent in Rolta India Ltd. The court examined the elements of criminal breach of trust and found that the FIR did not allege any dishonest use or misappropriation of the EPF amounts, nor did it identify the petitioner as an employer liable under Section 405. Concluding that there was no prima facie case, the court quashed the FIR, the charge sheet, and the discharge order, while directing the petitioner to pay a modest cost to a charitable trust.

Issues considered

  • Whether the FIR and criminal proceedings under IPC Sections 406 and 409 for non‑payment of EPF contributions can be quashed under CrPC Section 482 and BNSS Sections 528/529.
  • Whether a CEO, who was not a director at the relevant time, can be held liable for criminal breach of trust for the company's statutory default.
  • Whether subsequent payment of the EPF dues defeats criminal liability.
  • Whether the absence of specific allegations of dishonest use of the EPF amounts defeats the ingredients of Sections 406 and 409 IPC.

Legislation cited

Subjects

  • EPF default
  • criminal breach of trust
  • IPC 406
  • IPC 409
  • quash of FIR
  • corporate liability
  • CEO liability
  • Section 482 CrPC
  • BNSS

Judgment

                                                                         CRI WP-2661-26.doc


Amberkar

                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION

                               WRIT PETITION NO. 2661 OF 2026

           Ashutosh Satchidanand Pandey                     .. Petitioner
                      Versus
           The State of Maharashtra & Anr.                  .. Respondents
                                       ....................
            Mr. Shyam Dewani a/w Mr. Sachet Makhija & Ms. Asmita Maurya,
              Advocates for Petitioner
            Mr. Sukanta Karmakar, APP for State
            Ms. Shraddha Talkar, Advocate for Respondent No. 2
            Mr. Satyajit V. Virnodkar (Goregaon Police Station) Pairavi Officer
                                             ...................


                                          CORAM : MILIND N. JADHAV, J.
                                          DATE              : SEPTEMBER 17, 2026
           P. C.:

           1.       Heard Mr. Dewani, learned Advocate for Petitioner; Mr.

           Karmakar, learned APP for State and Ms. Talkar, learned Advocate for

           Respondent No. 2.


           2.       Present Petition is filed under Sections 528 and 529 of Bharatiya

           Nagarik Suraksha Sanhita, 2023 to seek quashing of proceedings in

           Criminal Case No. 3745/PW/2019 pending before Judicial Magistrate

           at Borivali, Mumbai arising out of Crime No. 387 of 2018 registered

           with Goregaon Police Station and all consequent actions in pursuance

           thereof and for setting aside the order dated 20.02.2026 passed by the

           learned Judicial Magistrate First Class, 67th Court, Borivali, Mumbai




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rejecting the Petitioner's Discharge Application (Exh. 3) in CC No.

3745/PW/2019.


3.    Petition is an ex-director and CEO of the Company called M/s.

Kailasa Analytics and Services Pvt. Ltd. He was the founder director of

the said company. By order dated 07.09.2017 passed by the Registrar

of   Companies,       Mumbai,        he   stood   disqualified   as    director.

The said Company defaulted in payment of Employees' Provident Fund

(EPF) amount, which is the statutory amount, to the EPF Authority for

the period of October and November 2017.


4.    Respondent No. 2 - Provident Fund Implementation Officer at

Central Government Employees Provident Fund Organisation Office in

Mumbai filed a complaint and registered an FIR on 04.07.2018 under

Section   406     &    409      of    the   IPC    against   the      Petitioner.

Reading of the FIR, prima facie, shows that it has been filed against

the Petitioner because he is the director of the Company.


5.    The record itself shows that immediately after the FIR was filed,

the said company immediately paid the EPF contribution amount for

the said unpaid period along with interest. The prosecution, however,

has continued. The reasons for non-payment of the said amount

towards EPF contribution was on account of the Company having

faced financial constraints during the months of October and



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November          2017.      Record also shows that during the said months

rather during the said period, the Petitioner who was working as the

CEO of the Company and was no longer the director, also did not draw

his salary. Most importantly, the Petitioner was completely unaware

about the fact that there was a delay in deposit of the EPFC

contribution amount. It is seen that on 29.11.2018, the entire amount

towards EPF contribution which was in arrears was duly deposited.


6.       Case of the prosecution against the Petitioner is for non-

remittance of EPF contribution amount of Rs. 42,453/- and Rs.

38,845/- for the months of October 2017 and November 2017. The

petitioner has approached this Court for quashing.


7.       Mr. Dewani would subit that the amount was deposited and

delay in depositing the amount could not be attributed to the

Petitioner who was not even the director of the Company at the then

time. He would submit that since the amount is deposited, the case of

the Petitioner is fully covered by the decision of this Court in the case

of Rolta India Ltd & Anr. v. State of Maharashtra & Anr. 1. He has

placed the said decision before this Court for consideration and for

quashing.


8.       Per contra, Ms. Talkar, learned Advocate for Respondent No. 2 -

Complainant            has placed on record written submissions dated

1    Order dated 01.08.2024 in Criminal Writ Petition No. 3078 of 2018

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28.08.2026. She would submit that the FIR, investigation papers and

chargesheet prima facie discloses the essential ingredients of the

offenses of breach of trust and cheating. She would submit that the

prosecution is initiated bona fide on the basis of statutory records

maintained by Respondent No. 2's office and therefore, no case is

made out for exercising extraordinary jurisdiction of this Court for

quashing the FIR, since the Petitioner is prima facie guilty. She would

submit that Petition is misconceived since the FIR and chargeseeht

would disclose prima facie offence based upon statutory records and

material collected during investigation. She would submit that failure

to remit the deducted EPF contribution amount within the prescribed

period attracts criminal liability and even if it is true that subsequent

payment has been made, that does not absolve the Petitioner from

criminal liability. She would submit that subsequent full compliance of

payment of the amount renders continuation of the proceedings

oppressive since it is confirmed that the Petitioner has committed the

said offense.    She would submit that the plea of subsequent

compliance is a matter for consideration during trial and does not

constitute a ground for quashing the proceedings. Next she would

submit that non-impleadment of the Company does not render the

prosecution unsustainable and it merely raises a disputed question of




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facts to be decided during trial. Hence, she would submit that the

Petition be dismissed and the prosecution be continued.


9.      I have considered the submissions advanced by both the learned

Advocates appearing for the parties and perused the record of the

case.


10.     According to the Complaint, an offense is committed under

Sections 406 and 409 of the Indian Penal Code, 1860 (for short "IPC")

by the Petitioner who was admittedly the CEO of the Company which

defaulted in payment of the statutory EPF contribution for two months

in October and November 2017.


11.     Section 405 of the IPC is the offense of criminal breach of trust

whereas Section 406 is the punishment for criminal breach of trust.

Section 409 pertains to criminal breach of trust by public servant or

banker or merchant or agent.


12.     In the present case, the Company has defaulted in payment of

the amount whereas the Petitioner before the Court is the CEO of the

Company.      Prima facie, the Petitioner being the CEO cannot be

regarded as an employer because if Explanation 1 to Section 405 is

considered, then the definition of 'criminal breach of trust' under

Section 405 can only implicate the employer who can be held

responsible for the default in making the payment of contribution.


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Further, no prima facie case is made out against the Petitioner in the

FIR itself as the ingredients of the offense under Sections 406 and 409

of IPC have not been made out by the Complainant.


13.   The Complainant has not stated in what manner the Petitioner

has used the said property for his own use or dishonestly has used the

said property or disposed of the said property, which is a prime

requirement under Section 405 of the IPC to constitute criminal

breach of trust. All that the Complaint merely states is that the said

amounts have not been deposited towards EPF contribution.The

Complaint nowhere states as to in what manner the said amounts have

been used by the Petitioner dishonestly for his own use. Therefore

having failed to make out the ingredients of Section 406 and 409 of

the IPC, allegations made by the Complainant are not at all

sustainable.


14.   I am of the opinion that even if the allegations in the FIR are

taken at their face value and accepted in their entirety, it still does not

constitute the alleged offenses. The fact remains that had it been the

intention of the Petitioner to commit criminal breach of trust, he acting

as the CEO of the Company, would not have deposited the amount in

the EPF account subsequently. Therefore, the conduct of the Petitioner

does not reflect dishonesty in any manner. There was no criminal

intention for committing the said offense. In this view of the matter,

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the continuation of criminal proceedings in furtherance to the FIR and

the charge sheet against the Petitioner would be, in my opinion unfair,

unjust and against the interest of justice. It would rather only amount

to an abuse of the due process of law and a sheer waste of judicial

time. I am of the opinion that there is nothing likely to be achieved by

continuation of such proceedings. The case of the Petitioner before me

is fully covered by the decision of this Court in the case of Rolta India

Ltd. & Anr. (supra) relied upon by the learned Advocate for the

Petitioner.


15.   Considering     the   aforesaid   facts   and   circumstances,     the

prosecution is not likely to succeed if the proceedings are continued

and taken to its logical end. There is no prima facie case warranting

continuation of prosecution. Therefore, to secure the ends of justice,

the FIR and the consequential proceedings are required to be quashed

and set aside in exercise of the powers conferred under Section 482 of

the Cr.P.C. However, since admittedly the Petitioner was the CEO of

the Company and in charge of its operations, he has given reasons

about financial constraints faced by the Company during the said

period. Though it is true that the amounts are deposited subsequent

to the filing of the FIR, non-deposit of the said amounts which were

statutory amounts was contrary to law and would therefore attract

penal consequences.


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16.   I am, therefore, of the opinion that the Petitioner, being the CEO

of the Company was responsbile and should had be vigilent about the

effect of non-payment of statuory dues and its consequnces and ought

to have ensured that the said deposit was made. For not having made

the said deposit on time, I am inclined to direct the Petitioner to pay

costs for his such actions as condition for allowing the present Petition

for quashing on merits of the matter. Hence, on exercising powers

conferred under Section 482 of the Cr.P.C. read with Section 528 of the

BNSS, I am inclined to allow the present Petition subject to Petitioner

paying costs of Rs. 5,000/- towards charity. Petitioner is directed to

pay this costs amounts to the Corpus of A.K. Munshi Yojana a trust

which runs medical centres, vocational training centres and which also

runs a Special School called J.T. Sheth Mandbuddhi Vikas Kendra,

imparting education and training to the needs of 150 special children

in the field of Education (Classes for 6 to 18 years), early intervention

(upto 6 years) and vocational training (18 years above) having its

school address and building at A.K. Munshi Yojana Chowk, 3 rd

Panjarapole Lane, C.P. Tank, Mumbai – 400 004 [Contact Nos.

22425513 / 22423654] registered under the Society Registration Act,

XXI of 1980 under No. : 387/81 GBBSD and the Public Trust Act, XXIX

of 1950 under No. F-6809. RCI Reg. No. 0163.




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                 17.            Petitioner is present in Court and through his Advocates agrees

                 to pay the aforesaid costs amount to charity within a period of two

                 weeks from the date of uploading of this order.


                 18.            In view of the above, the present Petition is allowed in terms of

                 prayer clauses (a) and (b) which read thus:-

                                   “(a) Quash and set aside First Information Report bearing Crime No.
                                        387 of 2018 as well as the Chargesheet filed in respect thereof
                                        vide Criminal Case No. PW/3745/2019 which is pending before
                                        Hon'ble Judicial Magistrate, Borivali and all the consequential
                                        actions in pursuance thereto, as far as they are pertaining to the
                                        Petitioner herein;
                                   (b)   Quash and set aside the order dated 20.02.2026 passed by the Ld.
                                         Judicial Magistrate First Class, 67th Court, Borivali, Mumbai, on
                                         the Discharge Application (Exh-3) filed by the Petitioner in
                                         Criminal Case No. 3745/PW/2019 and consequently allow the
                                         said discharge application and discharge the Petitioner form the
                                         said proceedings."



                 19.             List the Petition for compliance of the order on 8th October,

                 2026.


                 20.            Advocate for Petitioner shall remain present and show

                 compliance on that date. If he does not remain present and there is

                 non-compliance of this order, Court will pass appropriate order for

                 recall of this order, which shall be noted by the Petitioner.


                 21.            Writ Petition is allowed and disposed.




Amberkar                                                           [ MILIND N. JADHAV, J. ]


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             Digitally signed
RAVINDRA by RAVINDRA
         MOHAN
MOHAN    AMBERKAR
AMBERKAR Date: 2026.09.17
             11:41:52 +0530


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