S.K.GUPTA, J. - (1.) This revisional application has been filed under Section 401 read with Section 482 of the Cr. P.C. against the judgment and order dated January 31, 2004, passed by the learned 12th Sessions Judge, City Civil Court in Criminal Appeal No. 124 of 1997, whereby he confirmed the order of conviction, as passed by the learned Metropolitan Magistrate 15th Court in Case No. C/1313/1993. The case of the petitioners is that the petitioner No. 1 is the proprietrix and the petitioner No.2 is the manager of Bharat Homeo Laboratory, situated at Taki Road, Barasat. The criminal case was instituted against them on the allegation that the petitioners failed to deposit the employers' and employees' share of contribution for the period from October 1990 to September 1992 within the specified time and as such they were liable to be punished under Sections 85(a) and 85(b) of ESI Act as well as under Section 85(g) of the said Act. On the basis of the said complaint cognisance was taken and after completion of the trial the learned Magistrate was pleased to convict both the accused persons and sentenced them to suffer S.I. for 1 year each and to pay fine of Rs. 10.000/- of each I.D. to suffer further S.I. for 100 days. Being aggrieved and dissatisfied with the said judgment, the petitioners preferred an appeal before the learned Sessions Court. But the learned Sessions Judge after hearing the submissions of both the parties, was pleased to confirm the order and the conviction, as passed by the learned Magistrate but modified the fine amount to the extent of Rs. 5,000/- instead of Rs. 10,000/-. As the petitioners are dissatisfied with the said order of the learned Sessions Judge, so they have preferred this revisional application challenging the legality of the order passed by the learned Sessions Judge.
(2.) I have heard the submissions of the learned advocates for both the sides. At the time of argument, the learned advocate for the petitioner practically did not make any submission regarding the merit of the case. He simply argued that since the petitioner No. 1 is a lady and the other petitioner was working as manager of the said firm, so it would have been appropriate for the learned Magistrate and for the learned Sessions Judge to exercise the power, as provided in the proviso of Section 85(b) of the ESI Act, 1948. It is the admitted position that this revisional application has been preferred against the concurrent finding of both the Courts below regarding the commission of the offence by the accused persons. In view of such concurrent finding, it is not permissible for this revisional Court to go deep into the merit of the case. Simply, it is to be looked into as to whether the orders, as passed by the Courts below suffer from any material irregularity or not. I have perused the judgment of the learned Sessions Judge and it appears to me that there is no irregularity whatsoever in the said order far to speak of any material irregularity. Learned advocate for the petitioners also did not raise this point at the time of argument. At the same time, he has submitted that the learned Sessions Judge should have exercised the power given to him as per provisions of Section 85(b) of the Act in imposing the punishment upon the petitioners. I have considered the submissions. It appears that one of the accused is an elderly lady and it was the first offence committed by the accused persons. Section 85 of the Act provides punishment for violation of the provision to the extent of three years, but in an appropriate case if the Court finds that there is justification in imposing lesser punishment, the Court can impose such a lesser punishment upon the convicts. But in doing so, the Court has to give adequate reasons for that. I have already pointed out that it is a case where an elderly lady is involved and it was the first offence committed by the accused persons. As such, I think that ends of justice would be served if the accused persons are sentenced to suffer imprisonment for three months instead of one year as passed by the learned Courts below. Considering all these things, the revisional application is allowed in part. It is directed that the accused persons be sentenced to suffer S. I. for three months instead of one year, as directed by the Courts below. There will be no change regarding the fine amount, as imposed by the learned Sessions Judge. The accused persons, if on bail, are directed to surrender before the learned Magistrate immediately to serve out the sentence. If they are in custody, then the learned Magistrate will take appropriate step for execution of the sentence, as discussed above. With this observation, the revisional application is disposed of. Let a copy of this order be sent to the learned Magistrate immediately for his information and taking appropriate action.
(3.) Xerox certified copy, if applied, may be handed over to the parties on urgent basis.;