Crl. Revision No. 1850 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Revision No. 1850 of 2003 Date of Decision : January 24, 2008. Employees State Insurance Corporation .... Petitioner Vs. Ravti Raman Gupta (Director) .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. B.S.Bhalla, Advocate for the petitioner. Mr. Gurcharan Dass, Advocate with Mr. Vivek Sharma, Advocate for the respondent. * * * L.N.MITTAL, J. (Oral) : The instant criminal revision petition has been filed by Employees State Insurance Corporation (in short - `the Corporation') impugning judgment dated 12.07.2003 of learned Additional Sessions Judge, Ludhiana, whereby appeal of respondent Ravti Raman Gupta was allowed and judgment of conviction and order of sentence dated 19.02.2001 of learned Judicial Magistrate Ist Class, Ludhiana were set aside and the respondent was acquitted. The petitioner-Corporation filed complaint under Section 406 and 409 of the Indian Penal Code against respondent Ravti Raman Gupta as Director, Manager and Principal Employer of M/s Hindustan Exports (Pvt.) Limited, Ludhiana (hereinafter referred to as `the Company') inter alia on the allegations that the respondent did not deposit employees' contribution Crl. Revision No. 1850 of 2003 2 deducted out of their salary with the petitioner and misappropriated the same. Charge under Section 406 of the Indian Penal Code was framed against the respondent, to which he pleaded not guilty and claimed trial. The prosecution, in support of its case, examined three witnesses. Ravi Bhatia (PW-1) and J.C.Dhingra (PW-2) – officials of the petitioner-Corporation broadly stated according to the prosecution version but admitted in cross-examination that they had never visited the premises of the Company or the respondent. In other words, they had no knowledge that respondent Ravti Raman Gupta is Manager or Principal Employer of the Company. H.S.Khanna (PW-3), who is Inspector of the petitioner- Corporation, stated that he inspected the record of the Company vide his Report Ex.P-3/A and some representative of the Company gave statement Annexure P-3/A-1 regarding deductions of ESI contribution made from the salary of the employees. Complainant's counsel also tendered letter Ex.A-Y allegedly sent by the respondent to the Corporation for registration of the Company under the Employees State Insurance Corporation Act, along with necessary form Ex.A-X. Another document Mark-A was also tendered, said to have been signed by the respondent on behalf of the Company. Learned trial Magistrate, vide judgment dated 19.02.2001, held the respondent guilty under Section 406 of the Indian Penal Code and vide order of even date, sentenced the respondent to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- and in default, to undergo further rigorous imprisonment for two months. However, appeal preferred by the respondent was allowed by learned Additional Sessions Judge, Ludhiana vide judgment dated 12.07.2003 thereby acquitting the respondent. Feeling aggrieved, the complainant-Corporation has filed the instant revision petition. Learned counsel for the petitioner contended that H.S.Khanna (PW-3) inspected the premises of the Company and found that deduction of ESI contribution had been made from the salary of the employees as per Crl. Revision No. 1850 of 2003 3 inspection Report Ex.P-3/A and annexed statement Ex.P-3/A-1 given by Company's representative. However, H.S.Khanna (PW-3) in his cross- examination could not tell even the name and designation of the representative of the Company, who gave statement Ex.P-3/A-1 regarding contribution deducted from the salary of the employees of the Company. On the other hand, H.S.Khanna admitted in his cross-examination that respondent Ravti Raman Gupta was not even present at the time of inspection carried out by H.S.Khanna. In these circumstances, his inspection Report Ex.P-3/A and statement Ex.P-3/A-1 does not prove that respondent is Manager/Principal Employer of the Company and therefore liable for deposit of contribution on behalf of the Company with the Corporation. Statements of other two witnesses Ravi Bhatia (PW-1) and J.C.Dhingra (PW-2) also do not prove the aforesaid fact. Learned counsel for the petitioner then referred to documents Ex. A-X and A-Y allegedly submitted by the respondent on behalf of the Company mentioning himself to be Principal Employer/Manager of the Company. However, learned counsel for the respondent pointed out that these documents were simply tendered in evidence by the complainant and have not been duly proved as also held by learned Appellate Court. There is considerable force in the contention. No witness stepped in the witness-box to prove these documents and to state that these documents were signed or submitted by the respondent. Consequently, the respondent also had no opportunity of cross-examination to depict that he had not signed or submitted these documents. It is, therefore, manifest that these documents have not been proved in accordance with law and therefore, cannot be used as evidence against the respondent. In the aforesaid context, it is also significant to notice that documents Ex. A-X and Ex. A-Y were not even put to the respondent in his examination under Section 313 of the Code of Criminal Procedure. Obviously, the respondent has been greatly prejudiced by not being called upon to explain these documents in his statement under Section 313 of the Crl. Revision No. 1850 of 2003 4 Code of Criminal Procedure. These are material documents and therefore, cannot be used against the respondent, because the respondent was not called upon to explain the same when he was examined under Section 313 of the Code of Criminal Procedure. In view of the aforesaid, it is manifest that documents Ex.A-X and A-Y have not been duly proved and cannot be used as evidence and also, the respondent was not confronted with these documents in his examination under Section 313 of the Code of Criminal Procedure and for this reason as well, these documents cannot be used against him. Excluding these documents, there is no material on record to substantiate the petitioner's plea that respondent was Manager or Principal Employer of the Company at the relevant time. It is, thus, apparent that the view taken by the learned Additional Sessions Judge in impugned judgment dated 12.07.2003 is fully justified on the basis of material on record and therefore, the impugned judgment does not suffer from any infirmity so as to warrant interference in exercise of revisional jurisdiction against impugned judgment of acquittal. In view of the foregoing, the inevitable conclusion is that there is no merit in the instant criminal revision petition. The same is accordingly dismissed. January 24, 2008 ( L.N.MITTAL ) monika JUDGE