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Petition dismissed for non prosecution

ravidevaraj ,
  25 February 2009       Share Bookmark

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)
 
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Published in Criminal Law
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