Jagdish Bagri Vs.
Rajendra Kumar Luhariwala & ANR.  INSC 113 (21 January 2009)
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
Dr. ARIJIT PASAYAT,
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.
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
The High Court
noticed that the appellant failed to pay Rs.2,30,000/- in installments 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.
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.
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.
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 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.
appeal is disposed of accordingly.
(Dr. ARIJIT PASAYAT)