Judgment :- S.M. SIDICKK, J. ( 1 ) THE appellant is the complainant and the respondents are the accused 1 to 3. This appeal is preferred by the Appellant/complainant to set aside the order of acquittal passed by the learned lind Metropolitan Magistrate, Egmore at Madras on 26-6-1989 in C. C. No. 5263 of 1988. ( 2 ) THE facts, which have given rise to the present appeal, are briefly as follows: -The accused No. 1 and 2 are the partners and the accused No. 3 is the Manager of the Factory known as M/s. Sree Krishnaswamy Mill situated at No. 15, Palliapalayam Road. Komarapalayam 638 183, The Factory known as M/s. Sree Krishnaswamy Mills situated at No. 15. Pallipalayan Road. Kamarapalayam 638 183, Salem District is covered under the Act as per the provisions of Section 1 (4) read with Section 29 (12) of the E. S. I. Act. Thus a distinctive code number was allotted to the said Factory. The accused No. 1 and 2 being the partners and the accused No. 3 being the Manager are the Principal employers of the said Factory known as per the provisions of the E. S. I. Act. The Principal employer is required to submit to the E. S. I. Corporation a return in respect of the Employees employed in the said Factory in Form No. 6 known as the Return of Contributions within the time limit specified under Regulation 26 of the Regulations. The accused have failed to submit the said Return of Contributions in Form No. 6 in respect of their employees for the contribution period ended on 30-9-1987 which return should have been submitted by them on or before 31-10-1987. Thus by their failure to submit the said return to the E. S. I. Corporation on or before 31-10-1987 the accused have committed an offence as per the provisions of Sub Section (e) of Section 85 of the E. S. I. Act. The accused No. 3 has already been convicted for having committed a similar offence of non-submission of Return in Form No. 6 for the contribution period ended on 30-9-1986 and fined Rs. 300/ in all by the Court of the lind Metropolitan Magistrate, Egmore at Madras in C. C. No. 3762/87 on 16-11-1987. As such he is liable to be punished under Section 85-Aalso. 300/ in all by the Court of the lind Metropolitan Magistrate, Egmore at Madras in C. C. No. 3762/87 on 16-11-1987. As such he is liable to be punished under Section 85-Aalso. The complaint is filed in time in ac60rdance with the provision of Section 86 (3) of the E. S. I. Act. The Regional Director has accorded sanction for prosecution of the accused for the above said offences as required under Section 86 (1) of the E. S. I. Act. ( 3 ) COPIES of the complaint were furnished to the Respondents/accused. As the Respondents/accused denied the accusation, they were ordered to be tried by the Magistrate. Then a petition was filed on behalf of the accused raising a preliminary objection and stating that the complaint should be dismissed on the ground that the offence under Section 85 (e) of the E. S. I. Act is not said to have been committed by the accused in as much as it is not shown in the complaint that there was remittance of contribution amount, which is a pre condition for the submission of the return of contribution. The said application to dismiss the complaint filed by the accused was resisted by the Appellant/complainant before the trial Magistrate by filing a detailed counter statements. ( 4 ) THEREFORE no trial was held. On hearing the arguments of both the counsel on the preliminary objection raised by the accused the learned Magistrate found that the accused are not guilty of the offence with which they are charged and so the learned Magistrate acquitted the accused. Aggrieved against the order of acquittal the Appellant/complainant has come up in appeal. ( 5 ) AFTER hearing the learned counsel for the appellant and the learned counsel for respondents the point that arises for the determination in this appeal is as to whether the order of acquittal passed by the learned Magistrate is sustainable in the facts and circumstances of the case and if so to what relief the Appellant/complainant is entitled. ( 6 ) POINT: - The lower court acquitted the accused on the only ground that the complaint for the offence under Section 85 (e) of E. S. I. Act without a complaint under Section 85 (e) is not maintainable in view of the decision of our Madras High Court reported in Ashok Kumar Goyal v. Manager. E. S. I. Corporation. Madras. E. S. I. Corporation. Madras. , ( 7 ) THAT was a case where a complaint was filed by the E. S. I. Corporation stating that the accused therein failed to submit the return of contribution cards in Form No. 6, which should have been submitted by him on or before 10th July, 1992 and thus he would have become guilty of the offences under Sections 85 (g) and 85 (e) of the E. S. I. Act. The trial Court in the case viz, the Sub-Divisional Magistrate at Ponneri did not give any finding that the accused has failed to submit the return and cards referred to in the complaint, but gave a finding that the accused has failed to pay his contribution in respect of the period ending 20-5-1982 and so on the basis of that finding convicted the accused under Sections 85 (g) and 85 (e) of the E. S. I. Act and sentenced him to undergo rigorous imprisonment for three months or each count and to pay a fine of Rs. 1,000/- on each count. On appeal, the Sessions Judge at Chingleput found that since the evidence is only in respect of non-payment of contribution and since there was no evidence whatsoever in respect of the non-submission of the return of contribution and contribution cards the conviction was not sustainable and accordingly the Sessions Judge at Chingleput acquitted the accused of the offence for which he stood charged but however directed retrial of the accused allowing the respondent to adduce evidence in respect of the offence complained of under Section 85 (a) of E. S. I. Act for nonpayment of contribution. ( 8 ) AGAINST the Judgment of the Sessions Judge at Chingleput the accused in that case preferred the Revision before the Madras High Court, which rendered the decision reported in 1987 Law Weekly (Criminal) 285 by Justice David Annoussamy. In the above said Judgment reported in 1987 Law Weekly (Criminal) 285 the learned Judge in the middle of Paragraph 4 has stated as follows: Thirdly, the offence of non payment and the offence of non-submission of records are two distinct offence as could be seen from Section 85 of the Act. In the above said Judgment reported in 1987 Law Weekly (Criminal) 285 the learned Judge in the middle of Paragraph 4 has stated as follows: Thirdly, the offence of non payment and the offence of non-submission of records are two distinct offence as could be seen from Section 85 of the Act. The non-payment of contribution is punishable under Section 85 (a) of the Act, whereas the failure of submission of return is punishable under Section 85 (e) of the Act, Further the punishment for the offence under Clause (a) is different from the punishment in respect of other clauses Fourthly, the Legislature by providing two different offences has by itself indicated its intention that a person who has failed to pay should not be punished for not submitting the contribution cards and return. ( 9 ) PLACING reliance on the last sentence viz. . Fourthly the Legislature by providing two different offences has by itself indicated its intention that a person who has failed to pay should not be punished for not submitting the contribution cards and return the learned counsel for the Respondents/accused argued that the present complaint filed under Section 85 (e) for the failure to submit the return of contribution can not be maintained in law without a complaint under Section 85 (e) for the failure to pay the contribution. In other words the learned counsel for the Respondents/accused would submit that a complaint for both the offences under Sections 85 (a) and 85 (e) alone can be maintained and not a complaint for the single offence under Section 85 (e) of E. S. I. Act. ( 10 ) IN my view the above approach of the learned counsel for the Respondent/accused is erroneous for the following reasons. No doubt the learned Judge Justice David Annoussamy has observed in one portion of the Judgment about the intention of the Legislature that a person who has failed to pay should not be punished for not submitting the contribution cards and return, and by such an observation it cannot be taken to mean that a complaint for failure to submit the return of contribution under Section 95 (e) is not maintainable without a complaint for failure to pay contribution under Section 85 (a) of E. S. 1. Act. Act. The learned Judge Justice David Annoussamy has observed in the earlier portion of his Judgment i. e. in the middle of para 4 of his Judgment candidly that the offence of non-payment of contribution and the offence of non-submission of return of contribution are two distinct offences. Having stated so he could not have meant to say that a complaint for both the offences alone is maintainable. ( 11 ) A reading of the provisions in Section 85 (a) and 85 (e) of E. S. I. Act would clearly indicate that they are different and separate offences and they cannot go together. The first step is to file a return and the next step is to pay the contribution, and the failure to observe the same can only be separate and district. In other words the failure to pay the contribution cannot be in the first instance and the failure of submitting the return of contribution cannot be at a later stage. The failure to pay contribution cannot be interlinked or interconnected with the failure to submit the return of contribution as required by the Regulation. ( 12 ) IN my view the above decision of Justice David Annoussamy is wrongly interpreted by extracting a passage in this Judgment and quoted the same out of context to contend that the complaint for the single offence under Section 85{e) for non-submission of the return of contribution is not maintain able without a complaint for nonpayment of contribution under Section 85 (a) of E. S. I. Act. Therefore in my view. , the decision of the learned Judge. Justice David Annoussamy cannot be the basis to contend that the complaint under Section 85 (e) of the E. S. 1. Act without a complaint under Section 85 (a) of E. S. 1. Act is not maintainable under law. ( 13 ) NOWHERE in the Regulation 26 of E. S. I. Act (General) Regulations of 1950 it is stated that the payment of contribution is imultaneous with the filing of the return of contribution. It states that the return of contribution along with the receipted challans can be submitted. It can be submitted without the challans or with the challans. It is not mandatory for the owner of the establishment to pay the contribution and then to file the return of contribution. It is not the case of the Respondent! It states that the return of contribution along with the receipted challans can be submitted. It can be submitted without the challans or with the challans. It is not mandatory for the owner of the establishment to pay the contribution and then to file the return of contribution. It is not the case of the Respondent! Accused that the E. S. I. Corporation refused to receive the return without the payment of contribution. Even there may be nil return and in such a situation there shall not be any payment of contribution and so a nil return of contribution can also be submitted by the owner of the establishment. So it is futile to contend on behalf of the Respondents/accused that in as much as it is not shown in the complaint that there was remittance of contribution amount, which is a precondition for submission of return of contribution to the E. S. 1. Corporation, the offence under Section 85 (e) of the E. S. I. Act, is not said to have been committed by the accused. Therefore the present complaint for the offence of non-submission of the return of contribution simplicited under Section 85 (e) of E. S. I. Act is maintainable. ( 14 ) THE learned counsel for the Respondents/accused Mr. Shanmugavelayutham submitted that the law on the question of filing a complaint and maintaining the same for the offence of non-submission of return of contribution under Section 85 (e) of E. S. I. Act can be settled by this Court but how ewer the lower court has acquitted the accused in the year 1989 and now eight years have elapsed and in those circumstances the finding of acquittal passed by the learned Magistrate need not be interfered with. The above contention is not entitled to any acceptance in this case for the following reasons. No evidence was adduced on the side of the complainant and no documents were filed and marked in this case. There were no proceedings under Section 313 of Cr. P. C. There is no finding on the merits of the case but there is a finding with regard to the preliminary objection raised by the accused that the complaint is not maintainable under law. Therefore there is no trial in this case in the eye of law. There were no proceedings under Section 313 of Cr. P. C. There is no finding on the merits of the case but there is a finding with regard to the preliminary objection raised by the accused that the complaint is not maintainable under law. Therefore there is no trial in this case in the eye of law. In view of these compelling reasons; I am of the view that the order of acquittal must be set aside and a retrial has to be ordered. In an appeal against acquittal strong and convincing reasons must exist for interference. Here is one such case where such strong and convincing reasons enumerated above exist. In those circumstances I am of the view that the order of acquittal passed by the learned lind Metropolitan Magistrate Egmore at Madras has to be set aside and a retrial has to be ordered and the appeal has to be allowed and consequently I answer this point in favour of the Appellant/complainant. ( 15 ) IN the result the appeal is allowed. The order of acquittal passed by the learned lind Metropolitan Magistrate, Egmore at Madras on 26-6-1989 in C. C. No. 5263/88 is set aside. The learned lind Metropolitan Magistrate, Egmore is directed to restore the complaint to its original file and it is further directed that the accused in this case shall be retried and a Judgment shall be delivered in accordance with the law. Appeal allowed.