JUDGMENT - D.D. SINHA, J.:---Heard Mrs. A.A. Agni, Counsel for the appellant. The respondent though served, none appeared for the respondents. 2.The criminal appeal is directed against the judgment and order dated 9th of November, 1998, whereby the Judicial Magistrate, First Class, Margao, acquitted the respondents accused for the offences punishable under section 85(i)(a) and (b) of the Employees' State Insurance Act, 1948. 3.The case of the prosecution in a nutshell is that the complainant is a Local Office Manager of E.S.I. Corporation. 4.Accused No. 2 is the proprietor and occupier of the factory in question and the establishment has been allotted Code No. 32-1014-92. Accused is required to pay contribution in accordance with sections 39 and 40 of the said Act at the rate specified in Rule 51 of E.S.I. Rules, 1950 read with Regulation 31 of the E.S.I. Regulations, 1950. The contribution required, is to be paid within 21 days of the wage period in which the contributions fall due. The accused have failed to pay the necessary contributions within the specific period i.e. from December, 1994 to June, 1996. Hence, the accused alleged to have committed offences punishable under section 85(i)(a) and (b) of the said Act. Sanction of the Regional Director was obtained to prosecute the accused. 5.The learned Counsel appearing for the Corporation contended that the case of the prosecution is proved against the accused for the offences charged in view of the evidence adduced by P.W. 1. All the material particulars of the prosecution case are proved by the prosecution and, therefore, the trial Court was not justified in acquitting the accused. 6.It is further submitted that section 39 of the E.S.I. Act, 1948 contemplates the contribution payable under this Act in respect of an employee shall comprise contribution payable by the employer and contribution payable by the employee and shall be paid to the Corporation. It is further contended that sub-section (2) of section 39 further provides that the contributions shall be paid at such rates as may be prescribed by the Central Government. Similarly, sub-section (3) of section 39 provides that the wage period in relation to an employee shall be a unit in respect of which all contributions shall be payable under this Act. Similarly, sub-section (3) of section 39 provides that the wage period in relation to an employee shall be a unit in respect of which all contributions shall be payable under this Act. Sub-section (4) of section 39 deals with the contributions payable in respect of each wage period shall ordinarily fall due on the last day of the wage period. It is further contended that sub-section (5) of section 39, contemplates that if any contribution payable under this Act is not paid by the principal employer on the date on which the contribution has become due, he shall be liable to pay the interest at the rate of 12% per annum or at such higher rate. 7.The learned Counsel for the Corporation further contended that Regulation 31, contemplates that an employer who is liable to pay contributions in respect of any employee shall pay the contributions within 21 days of the last day of the calendar month in which the contributions fall due and Regulation 31-A provides payment of interest in case of contribution due and payable is not paid in time. 8.The learned Counsel for the Corporation submitted that if any person fails to pay any contribution which under this Act he is liable to pay is punishable under section 85 of the Act. It is submitted that P.W. 1 in her examination-in-chief itself has specifically stated that the establishment of the accused has been allotted Code No. 32-1014-92 and the accused have not paid contribution from December, 1994 to June 1996. It is further contended that the testimony of this witness in respect of the material particulars of the prosecution case has not been shaken in the cross-examination and, therefore, the trial Court ought to have accepted the evidence of P.W. 1. However, the finding of acquittal in the circumstances of the present case is not sustainable in law and needs to be set aside. 9.We have considered the contentions raised by the learned Counsel for the corporation. Perused the evidence adduced by P.W. 1 as well as the judgment of the trial Court. In the instant case, in order to prove the charge against the accused, the prosecution is relying on the testimony of a solitary witness i.e. P.W. 1. 9.We have considered the contentions raised by the learned Counsel for the corporation. Perused the evidence adduced by P.W. 1 as well as the judgment of the trial Court. In the instant case, in order to prove the charge against the accused, the prosecution is relying on the testimony of a solitary witness i.e. P.W. 1. In the examination-in-chief, P.W. 1 has only stated that the accused have not paid contribution from December, 1994 to June, 1996 at the rate of 5.25% of the employees wages. Accused are allotted Code No. 32-1014-92. Accused are defaulters from December, 1994. Accused were to pay contribution within 21 days from the wage period in which the contribution falls. Accused are required to pay contribution under Regulation 31 of E.S.I. Act. Form No. 6 discloses that accused has not paid contribution. Accused, therefore, committed offence under section 85(i)(a) and (b) of the Act. In the cross-examination of this witness, P.W. 1 has specifically admitted that she was not aware of the fact that how many workers were working in the factory of the accused at the relevant time. She was also personally not aware about the contribution required to be paid by the accused. She has further admitted that she has not visited the factory of the accused at any time. Similarly, the amount of contribution is also not mentioned in the complaint. It has come in her cross-examination that her predecessor has visited the factory and noticed that at that time more than ten workers were working in the factory and, therefore, factory is covered under E.S.I. Act. It is an admitted position that the predecessor of P.W. 1 has not been examined by the prosecution in the instant case. 10.While appreciating the evidence of P.W. 1, it is clear that she does not know how many workers were working in the factory of the accused at the relevant time. She has also not visited the factory of the accused. The officer who has visited the factory has not been examined and, therefore, the version given by the prosecution witness P.W. 1 to the extent that there were ten or more persons working in the factory at the relevant time when her predecessor had visited the factory is hearsay evidence and is not admissible in law. No document is produced to show on what basis the Code number was given to the accused. No document is produced to show on what basis the Code number was given to the accused. On the other hand, as observed by the trial Court in para 8 of the judgment, the statement recorded under section 313 of the Code of Criminal Procedure discloses that E.S.I. people never visit the factory. They do not even study the situation. The labourers engaged were only for a period of three months. Taking into consideration the totality of the evidence adduced by the prosecution in the instant case, in our opinion, the evidence adduced by the prosecution is totally inadequate to prove the case of the prosecution against the accused for the offences charged. As we have already observed hereinabove, the bare statement made by P.W. 1 in her examination-in-chief that the accused did not pay contribution from December, 1994 to June, 1996 in absence of any documentary or other evidence brought on record by the prosecution will be unsafe to accept in order to hold that the accused has committed an offence under section 85 of the Act. The veracity of the testimony of P.W. 1 has been completely shaken due to above referred admission given by the witness in her cross-examination. 11.This is one of those cases where the Corporation has treated the prosecution against the accused lightly without taking proper care to adduce relevant evidence to prove the offence. 12.This is an appeal against acquittal and, therefore, the prosecution has to point out that the finding of acquittal recorded by the trial Court is not only unsustainable in law but same are perverse. 13.There is no such perversity noticed by us in the finding of acquittal recorded by the trial Court. On the other hand, as we have already pointed out, the prosecution has miserably failed to prove the prosecution case against the accused. In our opinion, the judgment and order passed by the trial Court is just and proper and needs no interference at the hands of this Court. 14.In the result, appeal is dismissed. Appeal dismissed. -----