The central legal point established is the requirement for the prosecution to prove the case beyond reasonable doubt, and the inadequacy of evidence leading to the dismissal of the appeal.

JUDGMENT - D.D. SINHA, J.:---Heard Mrs. A.A. Agni, Counsel for the appellant. The respondent though served, none appeared for the respondents.

2.The criminal appeal is directed against the judgment and order dated 9th of November, 1998, whereby the Judicial Magistrate, First Class, Margao, acquitted the respondents accused for the offences punishable under section 85(i)(a) and (b) of the Employees' State Insurance Act, 1948.

3.The case of the prosecution in a nutshell is that the complainant is a Local Office Manager of E.S.I. Corporation.

4.Accused No. 2 is the proprietor and occupier of the factory in question and the establishment has been allotted Code No. 32-1014-92. Accused is required to pay contribution in accordance with sections 39 and 40 of the said Act at the rate specified in Rule 51 of E.S.I. Rules, 1950 read with Regulation 31 of the E.S.I. Regulations, 1950. The contribution required, is to be paid within 21 days of the wage period in which the contributions fall due. The accused have failed to pay the necessary contributions within the specific period i.e. from December, 1994 to June, 1996. Hence, the accused alleged to have committed offences punishable under section 85(i)(a) and (b) of the said Act. Sanction of the Regional Director was obtained to prosecute the accused.

5.The learned Counsel appearing for the Corporation contended that the case of the prosecution is proved against the accused for the offences charged in view of the evidence adduced by P.W. 1. All the material particulars of the prosecution case are proved by the prosecution and, therefore, the trial Court was not justified in acquitting the accused.

6.It is further submitted that section 39 of the E.S.I. Act, 1948 contemplates the contribution payable under this Act in respect of an employee shall comprise contribution payable by the employer and contribution payable by the employee and shall be paid to the Corporation. It is further contended that sub-section (2) of section 39 further provides that the contributions shall be paid at such rates as may be prescribed by the Central Government. Similarly, sub-section (3) of section 39 provides that the wage period in relation to an employee shall be a unit in respect of which all contributions shall be payable under this Act. Sub-section (4) of section 39 deals with the contributions payable in respect of each wage period shall ordinarily fall due on the last day of the wage period. It is further contended that sub-section (5) of section 39, contemplates that if any contribution payable under this Act is not paid by the principal employer on the date on which the contribution has become due, he shall be liable to pay the interest at the rate of 12% per annum or at such higher rate.

7.The learned Counsel for the Corporation further contended that Regulation 31, contemplates that an employer who is liable to pay contributions in respect of any employee shall pay the contributions within 21 days of the last day of the calendar month in which the contributions fall due and Regulation 31-A provides payment of interest in case of contribution due and payable is not paid in time.

8.The learned Counsel for the Corporation submitted that if any person fails to pay any contribution which under this Act he is liable to pay is punishable under section 85 of the Act. It is submitted that P.W. 1 in her examination-in-chief itself has specifically stated that the establishment of the accused has been allotted Code No. 32-1014-92 and the accused have not paid contribution from December, 1994 to June 1996. It is further contended that the testimony of this witness in respect of the material particulars of the prosecution case has not been shaken in the cross-examination and, therefore, the trial Court ought to have accepted the evidence of P.W. 1. However, the finding of acquittal in the circumstances of the present case is not sustainable in law and needs to be set aside.

9.We have considered the contentions raised

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