[S.256 CrPC] Advocate's Mistake Should Not Prejudice Party's Rights: Calcutta HC Sets Aside Acquittal In Cheque Dishonour Case

Opining that the rights of a party should not be prejudiced due to an inadvertent mistake made by the advocate representing the party, the Calcutta High Court on Friday set aside an order of acquittal for the offence of dishonour of cheque under Section 138 of the Negotiable Instruments Act.

Justice Ananya Bandyopadhyay observed,

“A mistake on the part of the learned advocate representing any party beyond his/her knowledge should not act as a prejudice against his/her rights and contentions.”

The Court was adjudicating upon an appeal filed by the appellant bank against an order of acquittal passed by the concerned trial court for the offence of dishonour of cheque under Section 138 of the Negotiable Instruments Act.

The concerned trial court had acquitted the respondent under Section 256 CrPC which contemplates dismissal on default of complainant. It provides that the Court may, after issuance of summons, if the complainant does not appear, acquit the accused unless for some reason it thinks it proper to adjourn the hearing of the case to some other day.

The High Court was apprised by the amicus curiae that the concerned advocate representing the complainant bank was absent in the trial court due to his illness and that his junior had inadvertently submitted before the trial court that a settlement had been reached between the parties and that the complainant bank was unwilling to pursue the case any further.

Accordingly, the trial court passed an order acquitting the respondent under Section 256 CrPC. Thereafter, an application was filed on behalf of the complainant bank to recall the impugned acquittal order.

Upon perusal of the rival submissions, Justice Bandyopadhyay noted that the concerned trial court could not recall the impugned acquittal order after signing the same in view of Section 362 CrPC which places a bar on the Court to ‘alter’ or ‘review’ its order or judgment.

Setting aside the impugned order, the Court ruled,

“In the opinion of this Court the complainant bank should not be prejudiced due to an act on the part of the advocate and accordingly the impugned order dated 30.05.2007 passed by the learned Metropolitan Magistrate, 12th court, Kolkata in C- 12303/06 is set aside and accordingly the appeal is allowed.”

The trial court was also directed to dispose of the matter as expeditiously as possible without granting any adjournment to either of the parties except for any unforeseen circumstances.

Case Title: Prasanta Bhatta v. Abdul Sk

Case Citation: 2023 LiveLaw (Cal) 30

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