Court : Supreme Court of India
Brief :
Citation : IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2009
(Arising out of SLP (CRL) No. 154 of 2009)
Jagdish Bagri ....Appellant
Versus
Rajendra Kumar Luhariwala and Anr. ....Respondents
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single
Judge of the Calcutta High Court dismissing the application filed under
Section 401 read with Section 482 of the Code of Criminal Procedure, 1973
(in short the `Code'). Challenge in the Criminal Revision Petition was to the
order passed in Criminal Appeal No.2 of 2004 by learned Additional
Sessions Judge, Asansol confirming the judgment and order of conviction
and sentence dated 22.4.2004 passed by learned Additional Chief Judicial
Magistrate, Asansol.
3. Since the appellant did not appear when the matter was called, the
matter was taken ex-parte. The High Court noted that a sum of
Rs.2,30,000/- was payable to the complainant-respondent No.1 herein by
the present appellant -accused and since the payment was not made there
was an agreement between the parties to stipulate the mode of payment. A
sum of Rs.2,30,000/- was to be paid in 8 instalments and the first instalment
was of a sum of Rs.50,000/- payable by 22.6.2002 and the 8th instalment of
Rs.10,000/- was payable by 28.2.2003. As a security for the payment, the
appellant issued three cheques. One of the cheques was of Rs.1 lakh and
that is the subject matter of present controversy. Stand was taken that since
the cheque was issued as a security, the provisions of Section 138 of the
Negotiable Instruments Act, 1881 (in short the `Act') had no application.
The High Court noticed that the appellant failed to pay Rs.2,30,000/- in
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instalments as agreed to and therefore because of default of payment cheque
of Rupees one lakh was presented. In that sense there is no question of any
security.
4. Learned counsel for the appellant submitted that because of
unavoidable difficulties there was no appearance when the matter was
called. It was submitted that the matter was suddenly appeared in the list
and due to some unavoidable difficulties, the appellant's advocate could
not appear at the time of hearing before learned Single Judge.
5. Learned counsel for the respondents on the other hand submitted that
on two dates the appellant did not appear and, therefore, the Court had no
option but to dismiss the revision petition on merits. It appears from the
records that case was filed in 2005 and was listed on 17.3.2008 for the first
time and on the next day it was dismissed for non prosecution.
6. Learned counsel for the appellant highlighted several difficulties
which stood on the way of learned counsel for the appellant to appear before
the Court when the matter was taken up. It is true that the lawyers are
expected to be vigilant once they accept a brief. But on the peculiar facts of
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the case we set aside the impugned order and remit the matter to the High
Court for a fresh consideration on merits. To avoid unnecessary delay the
parties are directed to appear before the concerned Court on 28.1.2009. The
learned Chief Justice of the High Court is requested to assign the case to an
appropriate Bench.
7. The appeal is disposed of accordingly.
...........................................J.
(Dr. ARIJIT PASAYAT)
