A complaint preferred under section 85 (a) of the Employees State insurance Act of 1948 (here-in-after referred as the Act of 1948) preferred by the Employees State Insurance Corporation stands rejected. This complaint was instituted somewhere in 1993. The respondent No. 1 was arrayed as accused No. 1. The concern by the name of Popular Gun Works Industrial Area Digina, Jammu, was also arrayed as a party as respondent No. 2. The respondent No. 1 was arrayed in his capacity as Principle employer. The brief complaint copy whereof is annexure "A/2" with this petition makes mention of the facts that the establishment M/s Popular Gun Works Industrial Area Digiana has failed to deposit with the Corporation the contribution which were supposed to be deposited as required under Section 39, 40(1) and 40 (3) of the Employees State insurance Act read with Regulation 31 of the Employees State Insurance (General) Regulations 1950. The period for which lapse is said to have been committed is October 1991 to March 1992. The assertions made in Paragraphs 2, 3 and 4 of the complaint are relevant and are being reproduced below:- "2. That the Establishment M/s Popular Gun Works, Indl. area Digiana, Jammu is covered under the ESI Act, and Shri Harjinder Singh Ahand (Occupier) in the Principal Employees in terms of Section 2(12) the Employees State Insurance Act, 1948 and who at the time the offence was committed, was incharge of and was responsible to the Establishment for the supervision and control and conduct of the business of the Establishment. 3. That the accused has failed to pay to the Corporation the contribution as required under Section 39, 40 (1) and 43 of the EST Act read with Regulation 31 of the Employees State Insurance (General) Regulation, 1950 for the period 10/91 to 3/92 due on 21st of each of the following month at a rate and manner prescribed in the Employees State Insurance Act, 1948 which is an offence punishable under Section 85 (a) and 85-C of the Employees State Insurance Act, 1948. 4. That necessary sanction for the prosecution of the Employees (s) as required under Section 86 (1) the Employees State Insurance Act, 1948 is annexed hereto." 2. 4. That necessary sanction for the prosecution of the Employees (s) as required under Section 86 (1) the Employees State Insurance Act, 1948 is annexed hereto." 2. The then Judicial Magistrate First Class, Jammu before whom the complaint came to be filed concluded that the corporation has failed to comply with the provisions of Section 44 and 45 in as much as there was failure to serve notice under Section 44(2) to the respondents. It was, accordingly, concluded that the respondents were denied the right to be heard as contemplated under section 45 (a) of the Act. It was also held that as an Insurance Court has been set up under section 75 of the 1948 Act, therefore, before proceeding with the complaint it would be apt that the liability is determined in terms of section 75 of the Act. The fact that an insurance Court has been set up was sought to be substantiated by placing reliance on SRO 157 said to have been issued on 18.8.1994. It is this order passed by the trial court which is subject matter of challenge in this appeal. 3. On behalf of the Corporation it is contended that the learned trial Magistrate has not afforded opportunity of leading evidence to prove the facts on the basis of which criminal liability stood proved. It is urged that unless and until there was a trial on merit, the criminal liability of the respondents could not be determined. It is, accordingly, submitted that it was premature for the trial court to act in the matter it has acted. It is in this manner the order passed by the trial court stands impugned in this petition. The learned counsel appearing for the respondents submits that not only for the reasons mentioned by the trial court, but on account of the vagueness of the complaint and without indicating as to in what capacity the respondent No. 1 has been arrayed as an accused is also required to be gone into. If this is done, then in addition to the reasons given by the trial court, it would become evident that the complaint could not be tried at all. 4. The Employees State Insurance Act, 1948 was enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and to make provisions for certain other matters in relation thereto. 4. The Employees State Insurance Act, 1948 was enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and to make provisions for certain other matters in relation thereto. In terms of section 1(4) it was at the first instance to apply to all factories including the factories belonging to the Government other than seasonal factories. The terms factories has been defined in section 2(12) of the 1948 Act. It means any premises including the precincts thereof whereon ten or more persons are employed or were employed for wages on any day of the preceedings 12 months and where any manufacturing process is being carried on with the aid of power or is ordinarily carried. However, where the manufacturing process is being carried on without the aid of power then the number of such persons should be 20. This, as indicated above, is provided in section 2 (12) of the Act. The term principal employer has been defined in Section 2 (17) of the Act and it means the owner or occupier of the factory and it includes the managing agent of such owner or occupier. Therefore, before any liability is fastened under the Act of 1948, and moreso criminal liability is fastened, then it has to be established that the person proceeded against is the principal employer and is running a concern which falls within the definition of the terms "FACTORY" as contemplated by Section 2(12) of the Act. In terms of Section 2(12) it has to be established ; (I) That there is a concern where ten or more persons are employed and the manufacturing process is being carried on with the aid of power ; (II) That there is a concern where 20 or more persons are employed and the manufacturing process is being carried out with the aid of power ; (III) That it is not a seasonal establishment ; (IV) That the process which is being carried on is a manufacturing process. 5. The term principal employer is a person who is having the ultimate control over the manufacturing concern. 5. The term principal employer is a person who is having the ultimate control over the manufacturing concern. Even, Chairman and Directors of a company who were not having ultimate control were held not to be principal employees in the case reported as AIR 1974 Punjab & Haryana 33 S. Gurdial Singh v. The Regional Director Employees, State Insurance Corporation and others, Wherein it was held; "Form these definitions, it is quite clear that the petitioners are not covered by the definitions of principle employees or occupier. The owner of the factory is the Company, namely the Hindustan Embroidery Mills private Limited, Chheharta (Amrtisar) Inder Singh was appointed the Manager of the company for the purposes of the factories Act and he was, therefore, the occupier of the factory for all purposes. The petitioners cannot be said to be the persons who have ultimate control over the affairs of the factory. That control vests in the Company. It has not been shown that the affairs of the factory had been or are entrusted to any of the petitioners. The liability for the payment of contributions to the employees State Insurance Corporation is that of the principal employer under section 40 of the Act. As the petitioners cannot be termed as principal employer no recovery can be made from them." In case reported as The Employees State Insurance Corporation, Bangalore v. Sri B. S. Narayano Rao, 1993 Cr. L.J. 255, there was failure to file returns. The complaint was filed against the Managing Director. There was no averment in the complaint that the Managing Director has ultimate control over the affairs of the Company. The judgement of acquittal recorded by the trial Court was upheld by the High Court. It was held : "The complainant, however, laudable and beneficial the object of a Statute be, cannot take shelter under it and abdicate his primary responsibility of proving all the ingredients of an offence to hold him guilty. The concept of judicial activism cannot be invoked to fill in the material lacunae in prosecution evidence to the prejudice of an accused person forgetting that it is the duty of the complainant to prove the guilt of an accused person beyond reasonable doubt whatever be the nature of the complaint." This is one aspect of the matter. 6. The concept of judicial activism cannot be invoked to fill in the material lacunae in prosecution evidence to the prejudice of an accused person forgetting that it is the duty of the complainant to prove the guilt of an accused person beyond reasonable doubt whatever be the nature of the complaint." This is one aspect of the matter. 6. The complaint is in four paragraphs, paragraphs 2 and 3 whereof are relevant, which have already been reproduced above. It does not indicate as to how the Unit in question falls within the definition of the factory. It does not elaborate as to how respondent No.1 is the principal employer. Therefore, this contention raised at this stage by the learned counsel for the respondent deserves to be taken note of, and if it is so taken note of, even then the conviction cannot be recorded by the trial court. Thus this is a case where ultimately no conviction can be recorded. As a matter of fact, as indicated above, there is no assertion that respondent No.2 M/S Popular Gun Works is a factory within the definition of Section 2(12) of the Act or that it is carrying on its manufacturing business with the aid of power or that it employs more than 10 persons or that it is carrying on its business without the aid of power and is employing more than 20 persons. In the absence of these details and in the absence of an elaboration of the assertion as to how respondent No.1 is the principal employer, the proceedings in the complaint even if allowed to continue would lead to no tangible result. The above is one aspect of the matter. 7. Coming to the reasons given by the Court below, it be seen that the principal argument which prevailed with the Court below was that the complaint was not covered under Sections 44, 45, 45(a) 74 and 75 of the Act. It be seen that in the complaint it is alleged that there is breach of Sections 39, 40 (1) and 43 of the Act. No doubt, a forum has been provided in terms of chapter 6 for the adjudication of disputes and claims and an Insurance court has been constituted, and the matter can be decided by the Insurance Court as now established under Section 75. No doubt, a forum has been provided in terms of chapter 6 for the adjudication of disputes and claims and an Insurance court has been constituted, and the matter can be decided by the Insurance Court as now established under Section 75. Again the question as to whether a person who is or was a principal employer in respect of an employee can be gone into under Section 75 (d) of the Act of 1948, and other disputes can also be gone into, but it would be laying down too wide a proposition that criminal proceedings cannot be initiated merely because there is a possibility of adjudication of disputes in terms of Section 74 and 75 of the Act. In this regard reference be made to a decision reported as 1964 (1) Cr. L. J. 612 wherein it was observed that the question of liability is to be determined by the State Insurance court, then criminal case should be stayed pending decision of the Insurance Court. Therefore, the view expressed by the trial court that as there was failure on the part of the petitioner-Corporation to comply with the procedure laid down under Sections 44 and 45, no criminal proceedings could be initiated, would be too wide a proposition and it cannot be accepted. However, wherever civil proceedings are pending it may be possible for the person proceeded against to prefer an application that proceedings in criminal court be stayed. That is entirely a different matter. Therefore, the view expressed by the trial court that criminal proceedings could not be initiated is found to be a view which is not sustainable. However, taking into consideration the facts and circumstances of this case and in view of the facts noted above, the proceedings initiated against the respondents are held to be not properly initiated. This is because, (I) The complaint preferred is vague; (II) It is not indicated as to how the respondent No. 1 is the principal employer ; (III) It is not indicated as to how the concern in question falls within the scope of a factory ; 8. In view of the reasons given above, this appeal is found to be without merit and the Corporation is left free to pursue its remedies in accordance with law.