Heard Sri Rajesh Tiwari, learned counsel for applicant-appellant, Sri Gyan Prakash Verma learned counsel for opposite parties and perused the record.
The instant appeal has been filed against impugned judgment and order of acquittal dated 26.10.2018 passed by Chief Metropolitan Magistrate, Kanpur Ngaar in Complaint Case No.7418 of 2005 under section 85 (a) and (e) of E.S.I. Act, with an application for leave to file appeal.
Learned counsel for applicant-appellant contends that learned Chief Metropolitan Magistrate has acted wrongly and illegally in passing the impugned acquittal order, acquitting accused-persons of the offence under section 85(a) and (e) of E.S.I. Act; that it was proved from the evidence on record that opposite parties were liable to deposit the contribution of employees with the applicant-appellant for the period from April 2004 to September 2004 but they neither deposited above amount nor submitted the statement of contribution for the period closing in September 2004; that learned Trial Court has acted wrongly in believing the false statements of opposite parties and discarding truthful evidence of complainant that only 08 employees were working in Modi Chemicals.
Per contra, learned counsel for opposite parties submitted that under section 2(12) Factory means any premises wherein ten or more persons are employed and in case of factory, employer is required to deposit the contribution of employees provident fund with E.S.I. Corporation in accordance with provisions of section 39 of Employees State Insurance Act, 1948; that since only 08 persons were working in Modi Chemicals, opposite parties were not required to make any deposit under section 39 of the Act and for not making deposit and not submitting statement of contribution, no offence is made out against them under section 85(a) and (e) of Employees State Insurance Act.
Upon hearing parties' counsel and perusal of record, I find that it is not the case of applicant that any material evidence produced by complainant was not considered by Trial Court or was misinterpreted by it. Learned counsel for applicant has failed to show any glaring mistake or perversity in the findings of Trial Court. It is not disputed that there is no evidence on record to show that in Modi Chemicals ten or more persons were working and in absence of any such evidence produced by complainant-appellant, the provisions of section 39 of Employees State Insurance Act does not appear applicable to Company of opposite parties.
It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified".
In view of discussions made above, I have come to the conclusion that learned counsel for the applicant-appellant has failed to show any legal infirmity, glaring mistake, incorrectness or perversity in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the impugned order of acquittal and substituting it with conviction order. The application for leave to file appeal has no force and is liable to be dismissed.
The application for leave to file appeal is dismissed. Accordingly the appeal also stands dismissed.
Order Date :- 19.12.2019 Tamang Order on Memo of Appeal Hon'ble Harsh Kumar,J.
Dismissed.
For order, see order of date passed on application for leave to file appeal.
Order Date :- 19.12.2019 Tamang