MUKTA GUPTA, J.

1. Crl. M.A. No. 9130/2019 (Exemption)

Exemption allowed subject to just exceptions.

Crl.M.A. No. 9131/2019 (Delay)

For the reasons stated in the application delay of 131 days in re-filing the leave to appeal petition is condoned.

Application is disposed of.

CRL.L.P. 292/2019 & Crl.M.A. 9129/2019 (for additional documents)

1. Aggrieved by the judgment dated 29th November 2017, whereby the learned Metropolitan Magistrate acquitted the respondent for the offences punishable under Sections 85 (a) and (e) of the Employee State Insurance Act (in short 'ESIC Act'), the petitioner/complainant has preferred the present leave petition.

2. Briefly stated, the case of the complainant as per the complaint is that the complainant company is a statutory body constituted under the Employees State Insurance Act and its Insurance Inspector has been authorized by the said corporation to institute in the name of the Corporation, suits and other legal proceedings necessary in the interest of the Corporation, and to defend any such proceedings instituted against the Corporation in all Courts or Tribunals including those established under the Employees State Insurance Act and to represent the Corporation in all Courts or Tribunals in cases in which Corporation is a party and to act appear, make applications, plead and withdraw money on behalf of the Corporation.

3. Respondent No.2 is the proprietor and principal employer of the M/s A.K. Motor Workshop and is responsible for the conduct, supervision and control of the business of firm. Respondent firm is covered by the ESIC Act and has been allotted Code No.11-24466. Therefore Respondent no.2 is under a statutory obligation to pay the contribution and submit returns of contribution under the ESIC Act in respect of the employees of the company M/s A.K. Motor Workshop. Respondent no.2 has failed to pay the contribution from October 2003 to March 2004 and also failed to submit return of contribution in respect of employees of his firm for the period ending March 2004 thereby violating Sections 39/40(1)/43 ESIC Act read with regulation 31/26 ESI (General) Regulation, 1950.

4. A show cause notice dated 7th January 2004 was sent to respondent No.2. Despite the service of the show cause notice he failed to discharge his statutory obligation in time. Therefore, the prosecution of the respondent No.2 was sanctioned by the Regional Director in exercise of his powers under Section 86 (1) of the ESIC Act.

5. After the pre-charge evidence, charge was framed against respondent no.2 for the offences punishable under Sections 85 (a) and (e) of the ESIC Act.

6. Petitioner examined Vijay Kumar, Retd. SSO (Insurance Inspector) as CW-1, Sunil Prasad, SSO, Regional Office Mumbai as CW-2 and Santosh Chauhan, Retd. SSO as CW-3.

7. Statement of respondent no.2 was recorded under Section 313 Cr.P.C. wherein he stated that he had no place of business in the aforesaid period at the given address as he had surrendered the said shop to the landlord in the year 2001. He further stated that he had no liability to pay any contribution or to file any return as no ESI number had ever been allotted to him.

8. Perusal of the record reveals that Santosh Chauhan (CW-2) proved the show cause notice. In her testimony she stated that she was an assistant posted at the divisional office in the year 2004 at the time of issuance of show cause notice. In her examination in chief she stated that she prepared the show cause notice on the direction of Ashok Chandra, Deputy Director ESI but in her cross-examination she could not recall the date when such direction was given. There is also no document on record containing such direction from the Deputy Director ESIC to the assistant to prepare the show cause notice. She stated that the direction was given in June 2004 whereas the show cause notice bears the date of October 2004. She further stated that the notice was sent at both addresses and the AD card contains the full address but