JAGDISH BAGRIversusRAJENDRA KUMAR LUHARIWALA AND ANR.

                                 [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
                                GANGULY, 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
           No. 116 of 2009.                                                   E

               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.
                                                                              G
                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').
                                        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
  since the payment was not made there was an agreement
c 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
D 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
    of hearing before learned Single Judge.
G
        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