Mathadi & Unprotected Labour ... vs M/S.Rajkumar Khattar & Another
2017 Latest Caselaw 1547 Bom

 CRI. APPEAL NO.272.2000.odt                  1
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                    CRIMINAL APPEAL NO.272 OF 2000


 Mathadi and Unprotected Labour Board,
 Bhosle Chambers, Civil Lines,
 Nagpur-1, through its Inspector.   ..                              APPELLANT


                               .. VERSUS ..


 1]     M/s. Rajkumar Khattar,
        Handling Contractors,
        Steel Authority of India Limited,
        103, Shree Mohini Complex,
        4th Floor, Kingsway, Nagpur
        through its proprietor Rajkumar
        Khattar.

 2]     Rajkumar Khattar, Major 103,
        Shree Mohini Complex, 4th Floor,
        Kingsway, Nagpur.                ..                    RESPONDENTS



                    ..........
 None for the appellant.
 Shri S.S. Dewani, Advocate for respondents.
                    ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : APRIL 07, 2017.

ORAL JUDGMENT

This appeal takes an exception to the order dated

8.6.2000 passed by the learned Judicial Magistrate, First

Class, Court No.2, Nagpur in Criminal Complaint

No.1640/1992, thereby recalling the process issued against

the accused.

2] The facts giving rise to the present appeal may be

stated in brief as under :

(a) Appellant-Board is the original

complainant. Complaint under Section 138 of the

Negotiable Instruments Act was filed by Board

against the respondents alleging therein that

cheque issued by accused no.2 in the capacity of

proprietor of accused no.1 to the Board for

disbursement of wages to the workers was

dishonoured and the offence under Section 138 of

the Negotiable Instruments Act was attracted.

(b) Vide order dated 2.3.1993 Trial court

issued process against the accused. Accused

appeared and moved an application (Exh.27) for

recalling the process and dismissal of complaint.

The said application was allowed. Process was

recalled. Accused were discharged. Hence, this

appeal.

3] The submission of respondents-accused is that civil

court in Regular Civil Suit No.639/1998 has decided that

there is no legal liability against the accused. Accused filed

the suit for declaration that complainant-Board had no right

to claim recovery from the accused, as relationship of

employer and employee is not in existence between them.

Vide judgment and order dated 30.1.1999, suit was decreed

and complainant was permanently restrained from taking

any coercive action for recovery of the amount towards the

charges levied and surcharge from the plaintiff-accused. In

view of the judgment and decree passed by the competent

civil court, accused submitted that even action under

Section 138 of the Negotiable Instruments Act would be

barred, as the issue of legal liability of the accused has been

already determined by the civil court.

4] Needless to state that judgment and decree

passed by the competent civil court is binding on the

criminal court. It is not in serious dispute that issue of

existence of legal liability has been determined by the

competent civil court against the complainant-Board. Since

no legal liability exists, one of the main ingredients of

Section 138 of the Negotiable Instruments Act is not

established and in this situation, Trial court was right in

recalling the process issued against the accused.

5] No error is found in the order assailed by the

appellant. Hence, appeal deserves to be dismissed.

Criminal Appeal No.272 of 2000 stands dismissed. No costs.

(Kum. Indira Jain, J.)

Gulande, PA