M.L. Jain, J.
1. The facts of this appeal are that the Provident Fund Inspector, Jodhpur, lodged a complaint against the respondents Sohanlal Kukkar under Clause (a) and (b) of para 76 of the Employees' Provident Funds and Scheme, 1952, on the allegations that the said firm was registered under the said Act on 7-5-1965 under the name of M/s Sohanlal Prabhudayal. This establishment was dissolved on 30-3-66 and was converted into the new establishment of the present name They were required to pay the contributions and administration charges in pursuance of para 38 of the said scheme within 15 days of the close of every month to the Fund established under the said scheme. But in case of months of September, October and November, 1967, they made the requisite payments on 24-10-67 22-4-67 & 21-12-67 respectively. Thus, they were alleged to have contravened the provisions of the aforesaid para 38
2. The learned Magistrate examined the accused and when they pleaded not guilty, he also examined Stm Tikam Chand, the Provident Fund Inspector However, en 22-4-71, he dismissed the complaint and acquitted the accused of the offences they were charged with under Section 247 Cr.P.C. (old) on the ground that the complainant failed to appear on that date though the Counsel for the complainant did appear.
3. Aggrieved by this order, the Provident Food Inspector has come in appeal to this court. The learned Counsel for the appellant submitted that learned Magistrate did not exercise the discretion vested in him under Section 247, Cr.P.C. (old) in a judicial manner because he failed to consider that on the date of hearing, there was no need for the complainant to appear; he having been already examined and more over, his Counsel was already present in the court. The order under appeal therefore, was not is accordance with law.
4. I quite agree with the arguments on which the order under appeal is being challenged & do find that the Magistrate has not exercised his discretion in a judicial manner but I would not like to interfere in this case for the following two reasons, namely:
1. the case against the accused is not that they have failed to make the payment of the contribution under the Scheme but they, have made the payment late. Delay in such cases can be overlooked. At least the delay is of such a nature as will deter the Court from interfering in the circumstances of this case,
2. According to Clause (b) of Sub-section (1) of Section 16, the Act does not apply, to an establishment which employs 50 or more persons until the expiry of three years, and to an establishment which employs less than 50 persons, for five years Thus, even if it is held that the respondents employed 50 or more persons and further that their establishment began in the year 1965, they were exempted up to the year 1968 from the operation of the aforesaid Act.
5. In view of the aforesaid grounds. I would not like to interfere and hereby dismiss this appeal.