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

The Calcutta High Court Prasanta Bhatta v. Abdul Sk observed and has set aside an order of acquittal for the offence of dishonour of cheque under Section 138 of the Negotiable Instruments Act, 1881. It has been opined by the courts the rights of a party should not be prejudiced due to an inadvertent mistake which is being made by the advocate representing the party. The bench headed by Justice Ananya Bandyopadhyay observed that a mistake which being on the part of the learned advocate representing beyond any party which is his/her knowledge should not act as a prejudice against his or her contentions and rights. In the said case 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, 1881.

However, the concerned trial court had acquitted the respondent under Section 256 of Code of Criminal Procedure which contemplates the dismissal on default of complainant. Therefore, it is being provided that the Court may, after issuance of summons, if the complainant does not appear and acquit the accused unless for some reason it thinks it proper for adjourning the hearing of the case to some other day. In the present case, 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 it has been submitted by his junior inadvertently 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, an order has been passed by the trial court wherein acquitting the respondent under Section 256 of Code of Criminal Procedure.

The court filed an application on behalf of the complainant bank to recall the impugned acquittal order. The bench headed by Justice Bandyopadhyay noted that the concerned trial court could not recall the impugned acquittal order after signing the same in view of Section 362 of Code of Criminal Procedure which places bar on the Court to ‘alter’ or ‘review’ its order or judgment. It has also been directed by the Trial Court to dispose of the matter as expeditiously as possible without granting any adjournment to either of the parties except for any unforeseen circumstances.

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