THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.883 of 2013

JUDGMENT:

This appeal is preferred aggrieved by the judgment dated

14.03.2013 passed in P.C.No.60 of 2009 by the learned Judicial Magistrate of First Class (for short “the trial court”) to try offences under the ESI and Chairman, Industrial Tribunal – I at Hyderabad.

2. Heard Sri E.Venugopal Reddy, learned counsel representing Sri B.G.Ravinder Reddy, learned counsel for the appellant – Employee’ State Insurance Corporation (for short “ESI”) on record.

3. The brief facts of the prosecution / complaint is that the complainant is a public servant being an Inspector under the Sub-Regional Office at ESI bearing Door No.14-20-27, Padmanabha Buildings, Gandhinagar, Vijayawada-3. The complainant lodged a complaint against the accused, purporting to act in discharge of his official duties as a public servant. The establishment of the accused was in the name and style of M/s.Baba Security Services, which was brought under coverage of ESI. The said established employed 35 employees on

01.03.2002 for wages. The accused herein being the principal employer failed to pay contributions amounting to Rs.3,80.380/- covering the period from 01.03.2002 to 30.09.2002 within the stipulated time. The accused person failed to obtain particulars required for the declaration forms and submit the declaration forms in respect of all the coverable employees under Regulations 11, 12 and 14 of ESI (General), Regulation 1950 read with Section 38 of the ESI Act, 1948. The accused has failed to submit the return of contributions under Section 44 of the ESI Act and Regulation 26 of the ESI (General) Regulations, 1950. As the accused failed to comply with the provisions of the ESI Act and regulations, the accused – principal employer has committed offence punishable under Sections 85 (a), (e) and (g) of the ESI Act, 1948.

4. After hearing the prosecution and the defence, charges against the accused under Sections 85(a), 85(e) and 85(g) were framed read over and explained to him. Upon examination, accused pleaded not guilty and claimed to be tried.

5. On behalf of the prosecution, PWs.1 to 2 were examined and Exs.P1 to P11 were marked. On behalf of the defence, DWs 1 and 2 were examined and Exs.D1 to D4 were marked. The trial Court, on appraisal of entire evidence both oral and documentary, held that:

“The prosecution failed to establish that the accused is principal employer within the meanings of Section 2(17) of ESI Act. The accused is only immediate employer who used to supply security guards to various factories / mines which are located unimplemented area. The security guards supplies to mines are not coverable employees under the ESI Act. The accused being immediate employer has no obligation to pay the contribution. The factories / mines to which the accused supplied security guards are the principal employer, who has to pay the contributions and recover from the immediate employer as contemplated under Sections 40 and 41 of the Act.

There was no proper sanction for proper prosecution of the accused. The sanction under Ex.P9 for prosecuting the accused is void ab-initio. Consequently, the accused is not liable for criminal prosecution. Therefore, the accused is entitled for acquittal on the ground of benefit of doubt.”

The prosecution failed to establish the guilt of respondent No.2/accused for the offences with which he was charged and accordingly, acquitted him.

6. It is well settled law that in an appeal against acquittal, the appellate Court is circumscribed by the limitation that no interference has to be made with the order unless the approach made by the trial Court to the consideration of evidence is vitiated by some manifest illegality or the conclusion recorded by it is such, which could not have been possibly arrived at by any Court acting reasonably and judiciously and is therefore, to be characterized as perverse. There is no embargo on the appellate Court reviewing the evidence u