REPORTABLE

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

J U D G M E N T

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

2

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

3

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)

……………………………………J. (ASOK KUMAR GANGULY)

New Delhi, January 21, 2009

4