Sri M v. L. Narsaiah The Court delivered the following

Counsel for the Appellant: Sri B. G. Ravinder Reddy Counsel for the Respondent No. 1: Public Prosecutor Counsel for the Respondent No. 2: Sri M. V. L. Narsaiah The Court delivered the following: JUDGMENT THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.883 of 2013 JUDGMENT: This appeal is preferred aggrieved by the j udgment dated

14.03.2013 passed in P.C.No.60 of 2OO9 by the learned Judicial Magistrate of First Class (for short "the triai court") to try offences under the trSI and Chairman, Industrial Tribunal Iat Hyderabad.

2. Heard Sri tr.Venugopai Reddy, learned counsel representing Sri B. G. Ravinder Reddy. learned counsel for the appellant - Employee' State Insurance Corporation (for short ,,BSI,,) 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.14-2O-27, Padmanabha Buildings, Gandhinagar, Vijayaw.ada-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 trSI. The said estabiished employed 35 employees 04 i 2 O1.O3.2OO2 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.O9.2OO2 within the stipuiated 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 II, 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 trSI 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 B5(a), B5(e) and B5(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.l to 2 were examined arld Exs.Pl to Pl I were marked. On behalf of the defence, DWs 1 and 2 were examined and Exs.Dl to D4 rvere marked' The trial i I I I I I -) Court, on appraisal of entire evidence both oral and documentary, held that: "The prosecution failed to establish that the accusecl is principal employcr rvithin the meanings of Section 2(I7) of trSI Act. The accused is only immediate employer who used to .supply security guards to various factories / mines rvhich are locatcd 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 thc contributions and rccover from the imrirediate employer as contemplated under Sections 40 and 4 1 of the Act. There was no proper sanction for proper prosecution of the accused. The salction under Ex.P9 for prosecuting the accused is uold ab-initio. Consequently, the accused is not liablc for criminal prosecution. Therefore, the accused is entitled for acquitLal 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 r.r,as charged and accordingly, acquitted him

6. It is well settied 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 I i l L l I j l i I I I i I i i l 4 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 upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.

7. In Mrinal Das Vs. State o;f Tripural the Apex Court held as under: "It is clear that in an appeal against acquittal in the absence of perwersity in the judgment and order, interference by this Court exercising its extraordinaly jurisdicLion, is not warranLed. However, if the appeal is heard by an appcllate court, being thc final court of fact, is fully competent Lo re-appreciate, reconsider and review the evidcnce and take its own dccision. In other words, law does not prescritre any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provide s for ' lzor ty 9 scc +us .. r. ::::ai{l*ia:!*_**$Ee.+B.: 5 presumption in favour of th.e accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the lindings of acquitta-l. There is no limitation on the part of the appellate court to review the evidence upon whrch the order of acquittal is found and to come to its own conclusion. The appeilate court can a-lso review the conclusion arrived at by tJle trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is tl'e duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered wrth only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. Whcn the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."

8. In Maloth Sornaraju Vs. State of Andhra Pra.deshz the Apex Court held that: "There can be no two opinions tJrat merely because the acquittal is found to be wrong and another view can be taken, the judgrnent of acquittal calnot be upset. The appellate Court has more and serious responsibility while dealing witl. the judgment of acquittal and unless the acquittal is found to be perverse or not at all supportable and where tJre appellate Court comes to tl're conclusion tJlat conviction is a must, the judgrnent of acquittal '1zor ry t scc ors 6 cannot be upset. The appellate Court has to examine as to whether the trial Court, while upsetting the acquittal, has taken such care." g. In the instant case, the accused is an immediate employer. He had no supervision and control over the security guards supplied to various factories / mines. The ESI Act d.oes not impose any such obligation on the immediate employer. Sections 40 and 41 of the ESI Act contemplate that principal employer has to pay the contributions both the share of principal employer and employees and recover the same from the immediate employer while making the payments. Therefore, a benefit of doubt was given to accused stating that the prosecution failed to establish his guilt beyond reasonable doubt, for the charges levelled against him and the trial Court vide impugned judgment, acquitted him.

10. In view of the Judgments referred to above ald for the a-foresaid reasons, I am of the view that there are no merits in the appeal and the same is liable to be dismissed.

11. Accordingly, the appeal is dismissed confirming judgment dated 14.03.2013 passed in P.C.No.60 of 2OO9 on the file of the learned Judicial Magistrate of First Class to try offences under the ESI and Chairman, Industrial Tribunal - I at Hyderabad. .j. FllF+::c!!."cq!rEf+r/ ------ *..,',8= .. -r*'ilr1. '-. ./ /' 7 As a sequel, miscellaneous applications pending, if any, sha-ll stand closed //TRUE COPY// SD/- V. KAVITHA DEPUW REGISTRAR seci[*lbrercen To lTheJudicialMaqistrateofFirstclasstotryoffencesundertheESlActand ' Chiii.in. lndusirial Tribunal-l at Hyderabad' 2. rwo ccs to the Public Prosecutor, High court for the state of Telangana at Hyderabad. [OUT]

3. One CC to Sri B. G. Ravinder Reddy, Advocate [OPUC] 4. One CC to Sri M. V. L. Narsaiah, Advocate [OPUC] 5. Two CD CoPies VI{/gh Yk ( ..i j :.,---, ,1;,.-\* Da\ ? 22[uBM '1.. i i)F sP^-ic.t\ L)c HIGH COURT DATED: 1710712025 JUDGMENT CRLA.No.883 of 2013 DISMISSING THE APPEAL a -Sd Y+- dP'