[2009] 1 S.C.R. 473
.+.-
JAGDISH BAGRI
A
v.
RAJENDRA KUMAR LUHARIWALA AND ANR.
(Criminal Appeal No.116 of 2009)
JANUARY 21, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGUL Y, JJ.]
)I.
1
NEGOTIABLE INSTRUMENTS ACT, 1881:
c
S. 138 - Conviction by CJM -Affirmed by Addi. Sessions
Judge - High Court dismissing application under s. 401 rlw
s.482 - On appeal, Held: Lawyer could not appear due to
several difficulties - Lawyers are expected to be vigilant once
they accept a brief - In view of the peculiar facts of the case,
D
1
impugned order set aside - Matter remitted to High court for
fresh consideration on merits - S.401 rlw s/482 Cr.P.C. -
Advocate's duty towards client.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
E
No. 116 of 2009.
From the Judgment and Order dated 18.3.2008 of the High
Court of Calcutta at Calcutta in C.R.R. No. 727 of 2005.
Pramit Saxena, Yashpal Dhingra and Sarad Kumar
F
Singhania for the Appellant.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J.1. Leave granted.
2. Challenge in this appeal is to the order passed by a G
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').
473
H
474
SUPREME COURT REPORTS
(2009] 1 S.C.R.
A Challenge in the Criminal Revision Petition was to the order
pass~d in Criminal Appeal No.2 of 2004 by learned Additional
Sessions Judge, Asansol confirming the judgment and order
of c~~viction ~nd sentence dated 22.4.2004 passed by learned
Additional Chief Judicial Magistrate, Asansol.
B
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
c 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
D
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
E appellant failed to pay Rs.2,30,000/- in 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.
F
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
G 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
H filed in 2005 and was listed on 17.3.2008 for the first time and
JAGDISH BAGRI v. RAJENDRA KUMAR LUHARIWALA
475
AND ANR. [DR. ARIJIT PASAYAT, J.]
on the next day it was dismissed for non prosecution.
A
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
B
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
C
appropriate Bench.
7. The appeal is disposed of accordingly.
G.N.
Appeal· disposed of.
0
Lex