THE HON’BLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.489 of 2013

JUDGMENT:

This Criminal Appeal is filed by the appellant/complainant under Sections 378(4) of Cr.P.C. assailing the Judgment dated 08.02.2013 passed in P.C.No.38 of 2011 on the file of the learned Judicial Magistrate of the First Class to Try Offences Under the ESI Act and Chairman, Industrial Tribunal-1, Hyderabad, whereby, respondent No.1/accused was acquitted for the offence under Section 85(a) of the Employees’ State Insurance Act, 1948.

2. For the sake convenience, the appellant herein will be referred as complainant and respondent No.1 will be referred as accused, as they are arraigned before the trial Court.

3. The brief backdrop of the instant case is as follows:

Accused failed to pay contributions of Rs.1,43,715/- covering the period from 01.11.2005 to 31.03.2010, as under Sections 39 and 40 of the ESI Act read with Regulations 29 and 31 of the ESI (General) Regulations, 1950. As such Corporation issued C-18(adhoc) notice on 13.09.2010 for Rs.1,58,730/- for the period from 04/05 to 03/10 giving an opportunity of personal hearing on 13.10.2010 which was acknowledged and acknowledgement was received by the office on 19.11.2010. Accused did not attend the personal hearing. An order under Section 45-A of ESI Act, dated 29.11.2010 was issued determining the contributions of Rs.1,43,715/- for the period from 11/05 to 03/10. The order under Section 45-A was passed as per ESIC Hqrs. Instructions No.P-12/11/11/38/2010 Rev-II, dated 24.06.2010 restricting the claim to Rs.1,43,715/- for the period 11/05 to 3/10. A show cause notice dated 15.03.2010 was issued which was returned by postal authorities with the endorsement "REFUSED", FACTORY CLOSED". Accordingly, the accused committed an offence punishable under section 85(a) of the ESI Act.

4. To prove the case of the complainant, it got examined PW.1 and marked Exs.P.1 to P.11. To disprove the contention of the complainant, accused examined himself as DW.1 and got marked Exs.D.1 to D.4.

5. After following the due procedure and on consideration of the entire evidence both oral and documentary, learned trial Court acquitted the accused for the aforesaid offence.

6. Feeling aggrieved and dissatisfied with the findings of the learned trial Court, the complainant has preferred the present appeal on the following ground that the impugned Judgment is contrary to law, weight of evidence and probabilities of the case and that the trial Court failed to appreciate that Under Section 40 of ESI Act every principle employer shall pay both the shares of his contributions and also erred in not considering that the accused has not challenged Section 45A order which determination has become final against him. Learned trial Court committed gave error in holding that the accused is entitled to ‘benefit of doubt’ and thereby acquitting him. Therefore, prays this Court to set aside Judgment dated 08.02.2013 passed by the learned trial Court and convict the accused.

7. Heard learned counsel for the appellant and Mr.E.Ganesh, learned Assistant Government Pleader appearing for respondent No.2 –

State.

8. In cases of acquittal, the Hon’ble Supreme Court in Ravi Sharma v. State (Government of NCT of Delhi) and another, (2022) 8 Supreme Court Cases 536, held that while dealing with an appeal against acquittal, the appellate court has to consider whether the trial Court’s view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal.

9. In Ghurey Lal v. State of Uttar Pradesh, (2008) 10 Supreme Court Cases 450 the Hon’ble Supreme Court after referring to several Judgments regarding the settled principles of law and the powers of appellate Court in reversing the order of acquittal, held at para 70, as