IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 309 of 2002. Date of decision: 19.11.2009 Employee State Insurance Corporation … Appellant Versus Ashok Kumar Vadhera & Anr. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. S.R. Sharma, Advocate. For the respondents: Mr. Ashok Kumar Sood, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the appellant against the judgment of the Court of learned Chief Judicial Magistrate, Sirmour District at Nahan, dated 22.1.2002, vide which the respondents were acquitted of the notice of accusation put up against them under Section 85 (a) of Employees’ State Insurance Act, 1948. Briefly stated, the facts of the case are that a complaint was filed by the appellant through its Insurance Inspector as against the respondents under Section 85 (a) of Employees’ State Insurance Act, 1948, hereinafter to be referred as ‘the Act’. The allegations made by the complainant/Corporation were that the factory of the respondent is covered under E.S.I. Act and respondent No. 1 was the Incharge of the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 factory and was in control of the business. It was alleged that he has failed to pay the contribution to the Corporation as required under Sections 39, 40(1) of the Act read with Regulation 31 of the ESI (General) Regulation, 1950, which was due from 10/1998 to 3/1999 due on 21st of each of the following month. The act of the respondents was punishable under Section 85 (a) read with Section (i) (b) of the Act. The learned trial Court took cognizance of the offence and issued notice of accusations to the respondents. Notice of the accusation was put up to the respondents. Respondent No. 1 appeared for the Industry and as well as in individual capacity and denied the allegations. The complaint was tried by the learned trial Court, leading to the acquittal of the respondents. Being aggrieved, the complainant has filed the present appeal. I have heard the learned counsel for the parties and have also gone through the record of the case. The submissions made by the learned counsel for the appellant were that the offence in question stood proved and it was established that respondent No. 1 has failed to deposit the contribution of the Employees State Insurance as required under the law and the findings of the learned trial Court to the contrary are not sustainable in the eyes of law. On the other hand, the learned counsel for the respondents had supported the impugned judgment for the reasons given therein that the findings are not incorrect and they do not call for an interference by this Court. In the alternative, learned counsel for the respondents has prayed for mercy that respondent No. 1 was an old man of the age of 3 60 years and since he was ill, he could not deposit the amount well in time and as such, he deserves the leniency of this Court. I have gone through the judgment passed by the learned trial Court. The learned trial Court had observed that there is no proof on record to show that the notice as required under the provisions of the Act was issued to the respondents, since the postal receipts have not been attached with the case file. It was also observed by the learned trial Court that sanction is under the signatures of one B.C. Bhardwaj, who is still alive and the complainant has not examined any person to prove his signatures and as such, the guilt of the respondent(s) was not established beyond any reasonable doubt. I am not in agreement with the observations made by the learned trial Court. The complainant has placed on record Acknowledgments Exts. C-2 and C-3, vide which notice was sent to respondent and it was not necessary that the postal receipts should have also been placed on record. Both these notices have been duly received by the addressee as per the address. In his statement under Section 313 Cr.P.C., respondent No. 1 has simply denied the question that the acknowledgments were sent to him, but he never took up the plea that these acknowledgments do not bear his signatures. Therefore, the first observation made by the learned trial Court is incorrect. Coming to the second plea, the complainant had taken the sanction and has placed the same on record. The only objection taken was that since the person granting the sanction was alive and he should have been examined in Court to prove that there was application of mind. The presumption is that the sanction was granted after due application of mind and in such type of offence, I am satisfied that 4 once the fact has been proved that amount was not deposited, this plea is not open to the respondent(s) that it should be proved beyond any reasonable doubt that there was application of mind by the sanctioning authority before granting the sanction. The fact remains that amount in question was not deposited by the respondent within the time prescribed and as such, the ingredients of the offence were proved. The complainant CW-1 A.N. Arora, in his statement had clearly proved the signatures of the sanctioning authority in sanctioning order Ext. C-4. There were no suggestions to him that complete file was not put up to the sanctioning authority. Respondent never took up any such plea under Section 313 Cr.P.C. that sanction is in valid due to non-application of mind. Therefore, the conclusion drawn by the learned trial Court is incorrect. Accordingly, the judgment of acquittal passed by the learned trial Court is liable to be set aside. Coming to the second plea in regard to leniency to be taken in favour of respondent No.1, it has been submitted that respondent No.1 was ill and, therefore, he could not deposit the amount well in time and keeping in view his age and the nature of the offence and the fact that the amount was subsequently deposited by him with interest and penalty, I am of the opinion that respondent No. 1 deserves leniency. Accordingly, respondent No. 1 is convicted for the offence punishable under Section 85 (a) of the Act and is sentenced to imprisonment till rising of the Court and to pay a fine of Rs.5000/- to be deposited within thirty days from today before the learned trial Court. In default of payment of fine, he shall undergo rigorous imprisonment 5 for a period of one month. Respondent No. 1 is present today in Court and he is directed to remain present in Court till 4.00 P.M. In view of the above, the appeal filed by the appellant stands allowed accordingly. Copy of judgment alongwith record be sent to learned trial Court. ( V.K. Ahuja ), November 19, 2009 Judge (BSS)