M H Trivedi Insurance Inspector vs Gokalbhai Arjanbhai Patel and Others

Honourable Mr. Justice M.D. Shah

This appeal by the appellant-original complainant under Sec.378 of the Code of Criminal Procedure arises out of judgment and order dated 31-7-1998 passed by the learned Judicial Magistrate(First Class), Rajkot, in Criminal Case No.964 of 1991 whereby respondent Nos.1 and 2-original accused were acquitted of the charges levelled against them.

In nutshell, the facts are that a complaint was filed by the Shri K.L.Chauhan, Manager of the ESI Corporation, Ahmedabad, against the respondent Nos.1 and 2 in the Court of learned Judicial Magistrate(First Class), Rajkot, alleging that they being the employers of M/s J.Engineering/Amar Jyot Engineering Works failed to pay employer''s contributions for the period from 1-4-88 to 30-9-1989 as required under Sections 39 and 40 of the Employees'' State Insurance Act, 1948 (hereinafter referred to as ''the Act'' for short) within the time stipulated and in accordance with Regulations 29 and 31 of ESI(General) Regulation, 1950 thereby they have committed offence under Sec.85(1) punishable under Sec.85(1) of the Act. On issuance of summons, the accused appeared before the Court and filed reply at Ex.9 denying the offence levelled against them. Upon inquiry and after obtaining sanction to prosecute the respondents-accused and after affording opportunity of hearing to both parties, learned Judicial Magistrate(First Class), Rajkot, acquitted the accused vide judgment and order dated 31-7-1998 passed in Criminal Case No.964 of 1991 which is giving rise to the present appeal by the original complainant.

Heard learned advocates, Mr.Mayur S.Barot for the applicant-original complainant, Mr.R.S.Gogia for the respondent Nos.1 and 2 and learned APP, Mr.L.R.Pujari for the respondent No.3-State.

It is mainly submitted by Mr.Mayur Barot for the applicant that impugned judgment and order are contrary to law and evidence on record. It is further submitted that spot visit by the Inspector of the applicant Corporation revealed that the respondents-accused were not paying the contributions within the stipulated period. According to him, both the firms are common i.e. both the firms have a single factory premises, a common telephone number, single phase electric connection and a single godown, however, just to escape from the applicability of the Act, two firms were floated. It is also submitted that as the accused are principal employers, any dispute between the principal employers and the ESI Corporation has to be referred only to the Court specially constituted for the purpose and not by the Criminal Court. All the above aspects have not been considered by the learned Magistrate and hence, it is requested that the impugned judgment and order of acquittal require to be quashed and set aside. He has relied on the following decisions:

i) Agarwal R.K. Vs. State of West Bengal and Another, of Calcutta High Court;

ii) Sankari Roy(Smt.)Proprietrix of Bharat Homeo Laboratory and Another and Balai Chandra Paul and another 2006 II LLJ 251;

iii) Employees'' State Insurance Corporation, Bangalore and A.K.Abdul Samad and others, 2004(100) FLR 46 of Karnataka High Court;

iv) Nathmull Poddar Vs. Salil Kumar Chakraborty,

v) Deputy Regional director, ESI Corporation, Thrissur Vs. Trade Links Enterprises, Ernakulam.

learned counsel for the respondent Nos.1 and 2, Mr.P.S.Gogia has, however, submitted that the order passed by the learned Magistrate is legal and proper. It is further submitted that the learned Magistrate, on an appreciation of the oral as well as documentary evidence led by the parties, has come to the conclusion that there is a doubt about the existence of two different firms under one premises and hence, the accused have been given benefit of doubt and they were acquitted. According to him, said findings are legal and proper and it is therefore urged that the appeal be dismissed.

Learned APP, Mr.L.R.Pujari, has submitted that appropriate order be passed.

This Court has gone through the impugned judgment and order passed by the learned Magistrate and also the record.

It is clear that nowhere it appears from the observations of the trial court that both the firms are common, have a common premise, have a common telephone number, their employers are husband/wife and both the firms are clubbed. Moreover, nowhere it is stated by the complainant, Shri K.L.Chauhan, Manager of the ESI Corporation, in his complaint regarding the same. What is stated by the complainant in his complaint is about non-payment of contribution by the respondents-accused at the rate specified in the First Schedule of the Act read with Regulation 29 and 31 of the ESI (General) Regulation, 1950 for the period from 1-4-88 to 30-9-1989 and hence, it was requested to suitably punish the accused. It is clear from the cross-examination of P.W.No.2, Ex.21, Inspector of the appellant Corporation, Chhanabhai Kalidas Valera that there were not more than 10 employees working in each firm. He has also admitted that though it is true that Shri Mehta has been doing different works at different places, he does not remember to have seen different salaries being drawn by Mr.Mehta. When he was shown Exs.22 and 24, which are the xerox copies of attendance sheets of the employees working with J.Engineering Works and Amar Jyot Engineering Works respectively, he has admitted that they were written in his presence and that in his report he has shown that Mehtaji was drawing his salary from Amar Jyot Engineering Works. He has also stated that preliminary report shows different electric meters for two firms. However, there is no investigation as to whether both the firms have two different shops licenses and sale tax numbers and hence, it would not be able to state with certainty that both the firms were running in one premises and their employers are husband/wife. Since a doubt has been created in the mind of the court as to the existence of both the firms in one premises, the issue of clubbing as contended by the complainant was rightly not accepted by the trial below and hence, the accused were rightly acquitted giving benefit of doubt. Since, the said findings appear to this Court to be just, legal and proper, they are not required to be interfered with in this appeal filed under Sec.378 of the Code of Criminal Procedure. Hence, the present appeal deserves to be dismissed.

As far as the decisions relied on by the learned counsel for the appellant is concerned, there cannot be any dispute regarding the law laid down therein. However, the appellant would not get the benefit of said decisions as facts of those decisions are different from the present facts.

In view of the above, this appeal is dismissed.