Gujarat High Court
Housing And Urban Development ... vs M/S Tilak Reality Estate Private ... on 4 November, 2025
NEUTRAL CITATION
R/CR.A/2007/2025 JUDGMENT DATED: 04/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2007 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
No
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HOUSING AND URBAN DEVELOPMENT CORPORATION LTD.THRO
VIPUL AMRUTLAL ZINZUWADIA
Versus
M/S TILAK REALITY ESTATE PRIVATE LIMITED & ORS.
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Appearance:
MR HIREN P VYAS(2269) for the Appellant(s) No. 1
MS SEJAL H VYAS(3211) for the Appellant(s) No. 1
BAILABLE WARRANT NOT RECEIVED BACK for the
Opponent(s)/Respondent(s) No. 1
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No.
2,3
MS. MEGHA CHITALIYA, APP for the Opponent(s)/Respondent(s) No. 4
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
TARUNA R MAKWANA(7255) for the Opponent(s)/Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 04/11/2025
ORAL JUDGMENT
1. The present appeal is filed by the appellant - original complainant under Section 419 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS") against the order dated 16.12.2024 passed by the learned 18th Additional Chief Judicial Magistrate, N.I.Act Court No. 34, Ahmedabad City, (herein after referred to as the "learned Trial Court") in Criminal Case No.3602166 of 2014, whereby the learned Trial Court has Page 1 of 9 Uploaded by VISHAL MISHRA(HC01088) on Tue Nov 04 2025 Downloaded on : Tue Nov 04 22:59:39 IST 2025 NEUTRAL CITATION R/CR.A/2007/2025 JUDGMENT DATED: 04/11/2025 undefined dismissed the Criminal Case for want of prosecution as the appellant did not remain present under the provisions of Section 256 of Code of Criminal Procedure, 1973 (for short "Cr.P.C.") and the respondent Nos. 2 and 3 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act").
1.1 The parties are hereinafter referred to as "the complainant and the accused" in the rank and file as they stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts culled out from the memo of the present appeal as well as the paper book are as under:
2.1 The complainant is a company advancing housing loans to various persons and the accused had taken financial facilities for constructing a residential-cum-commercial complex in village Kansad Villa, Taluka and District Surat and the applicant had advanced Rs.5,90,00,000/-. All the necessary deeds were executed between the parties for the financial transactions. The accused Nos. 2 and 3 are the directors of the respondent No.1-Company and the accused Nos. 1 to 3 issued Cheque No. "483484"
dated 29.11.2013 for an amount of Rs. 15,00,000/- and Cheque No. "483485" dated 27.12.2013 for an amount of Rs.40,00,000/-. The complainant deposited the said cheques in their account with Corporation Page 2 of 9 Uploaded by VISHAL MISHRA(HC01088) on Tue Nov 04 2025 Downloaded on : Tue Nov 04 22:59:39 IST 2025 NEUTRAL CITATION R/CR.A/2007/2025 JUDGMENT DATED: 04/11/2025 undefined Bank, Navrangpura Branch, but the cheques returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was given, which was duly served to the accused No. 1 and it was within the knowledge of the accused Nos. 2 and 3 that the notice has been served but they did not repay the amount within the stipulated period, and hence, the applicant filed a complaint under Section138 of N.I.Act before the Court of Chief Metropolitan Magistrate,Ahmedabad, which came to be registered as Criminal Case No.3602166 of 2014. 2.2 The learned Trial Court took cognizance of the offence and summons were issued to the accused. The complainant and his advocate tried to get the summons served to the accused but the accused Nos. 1 to 3 were successful in avoiding the service of summons. The complainant and his advocate were regularly remaining present before the learned Trial Court but by an order dated 16.12.2024, the learned Trial Court was pleased to dismiss the complaint for want of prosecution on the part of the complainant.
3. Being aggrieved and dissatisfied by the impugned order the appellant has preferred present appeal under Section 419 of the BNSS.
4. Heard learned advocate Mr. Hiren P Vyas appearing for the appellant, learned advocate Ms. Taruna Makwana appearing for the respondent Nos. 2 to 3 and learned APP Ms. Megha Chitaliya for the Page 3 of 9 Uploaded by VISHAL MISHRA(HC01088) on Tue Nov 04 2025 Downloaded on : Tue Nov 04 22:59:39 IST 2025 NEUTRAL CITATION R/CR.A/2007/2025 JUDGMENT DATED: 04/11/2025 undefined respondent - State. Though served, none has appeared on behalf of the respondent No.1.
5. Learned advocate Mr. Hiren P Vyas for the appellant has submitted that the learned Trial Court has failed to appreciate the facts and provisions of law in proper perspective and therefore, the impugned order is unsustainable and bad in law. Learned advocate further submits that the applicant and his advocate were present before the learned Trial Court and had made efforts to serve the summons by RPAD but the respondent Nos. 1 to 3 were successful in avoiding service and the learned Trial Court has not appreciated that the respondent Nos. 1 to 3 have avoided service and without ensuring that the summons were served and has passed the impugned order and hence, the same may be quashed and set aside.
6. Learned advocate Ms. Taruna Makwana for the respondent Nos. 1 to 3 and learned APP Ms. Megha Chitaliya for the respondent No. 4 - State have jointly submitted that after recording the absence of learned advocate for the appellant, the learned Trial Court has passed94 to dismiss the present appeal.
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7. As the matter has been dismissed by an order under Section 256 of the Cr.P.C. it is appropriate to have a glance of Section 256 of Cr.P.C. which reads as under:-
"256. Non-appearance or death of complainant.--
(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may, dispense with his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."
8. At this stage, it is also appropriate to take into account the observations made by the Hon'ble Apex Court in the M/s. BLS Infrastructure Limited Vs M/s. Rajwant Singh & Others reported in 2023 4 SCC 326 in Para 20 which is reproduced as under:
"12. In Associated Cement Co. Ltd. (supra), the purpose of inserting a provision like Section256 of the Code was discussed and in light thereof, in paragraph 16, it was observed as under:
"16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the Page 5 of 9 Uploaded by VISHAL MISHRA(HC01088) on Tue Nov 04 2025 Downloaded on : Tue Nov 04 22:59:39 IST 2025 NEUTRAL CITATION R/CR.A/2007/2025 JUDGMENT DATED: 04/11/2025 undefined court has a duty to acquit the accused in invitum."
After observing as above, it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was setaside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed."
8.1 A coordinate bench of this Court in the case of Sureshchandra Chandulal Patni Vs Natwarlal Keshavlal Patni reported in 1992 1 GLR 626 observed in para 4 to 7 as under:
"(4) Section 256 of the Code of Criminal Procedure provides that if the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. The proviso to Sec. 256 further contemplates that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(5) In the instant case, the learned Magistrate has not recorded any reason about his thinking it proper to adjourn the hearing of the case to some other date. It appears that he has ignored the proviso to Sec. 256 of the Code of Criminal Procedure. The power under Sec. 256 of the code of Criminal Procedure has been conferred on the Magistrate obviously in the interest of justice, with a view to seeing that the accused is not subjected to any undue harassment. It is clear from the proviso to Sec. 256 of the Code of Criminal Procedure that when the complainant is represented by a pleader or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the personal attendance of the complainant and proceed with the case. In the instant case, the learned Magistrate does not appear to have applied his mind in dispensing with the personal attendance of the complainant and to proceed with the case or to adjourn the case to some other date as requested in the application submitted by the Advocate for the complainant. In the present case, the situation as on 5/03/1984 squarely falls within the aforesaid proviso and still the learned magistrate acted under sub-sec. (1) of Sec. 256 of the Code of Criminal Procedure acquitting the accused. It is, therefore, clear that the learned Magistrate has ignored the provision contained in proviso to Sec. 256 of the Page 6 of 9 Uploaded by VISHAL MISHRA(HC01088) on Tue Nov 04 2025 Downloaded on : Tue Nov 04 22:59:39 IST 2025 NEUTRAL CITATION R/CR.A/2007/2025 JUDGMENT DATED: 04/11/2025 undefined Code of Criminal procedure and therefore the order passed by him is illegal and unsustainable.
(6) In the case of State of Gujarat v. Keshavaram Shivram Devmurari and Anr. , (1977) XVIII GLR 524, this Court [ Coram : N. H. Bhatt, J. (as he then was)] observed that it was really unfortunate to dismiss the complaint in absence of the complainant and ignoring the proviso to Sec. 256 of the Code of Criminal procedure and it was held that the repetition of such instances would not be there in future in the Court of the Magistrate. However, it appears that this has been ignored while dismissing the complaint and acquitting the accused in the present case.
(7) SIMILARLY, in the case of State of Gujarat v. Dhirajlal Pranslianker.
Bhatt, reported in 1990 (1) GLH 466: (1990 (1) GLR 201), it is observed that the. Court should exercise sound judicial discretion and should adjourn the case when the complainant is absent and particularly when he is represented by an Advocate."
9. On scrutiny of the paper book and particularly the Rojkam of the learned Trial Court, it transpires the matter was pending for service of summons to the respondent nos. 2 and 3 for a long time and the appellant and his advocate were regularly remaining present before the learned Trial Court. The summons were issued by RPAD to the respondent Nos. 2 and 3 and they were successful in avoiding service and the learned Trial Court passed the impugned order on the ground of non - prosecution.
10. It is pertinent to note that the case has been dismissed for want of prosecution. In light of the settled principle of law of the Apex Court in M/s BLS Infrastructure Limited (supra), and Subhashchandra Chandulal Patni (Supra), it appears that the learned trial Court has committed an error in dismissing the matter when the respondent Nos. 1 Page 7 of 9 Uploaded by VISHAL MISHRA(HC01088) on Tue Nov 04 2025 Downloaded on : Tue Nov 04 22:59:39 IST 2025 NEUTRAL CITATION R/CR.A/2007/2025 JUDGMENT DATED: 04/11/2025 undefined to 3 have been successful in avoiding service. It is pertinent to note that the rule in this matter was duly served to the respondent No.1 but the bailable warrants issued by this Court have returned unserved with the endorsement that the respondent Nos. 2 and 3 have shifted from the residential address mentioned in the appeal which is at Bharuch to Surat but their address is not mentioned in the process. However , as the rule was served to the respondent No.1, the respondent Nos. 2 and 3 have appeared through their advocate before this Court.
11. Considering the facts and circumstances of the case and considering the observations made in the decision of the Apex Court and this Court referred herein above, this Court is of the considered opinion that the present appeal is required to be allowed and the matter is to be remanded back to the learned Trial Court for trial on merits.
12. Accordingly, the present appeal is allowed. The order dated 16.12.2024 passed by the learned 18th Additional Chief Judicial Magistrate, N.I.Act Court No. 34, Ahmedabad City in Criminal Case No.3602166 of 2014 is hereby quashed and set aside and the complaint is restored to its original status for trial in accordance with law.
13. The parties are directed to remain present before the learned trial Court on 01-12-2025 and the respondent Nos. 2 and 3 shall file an affidavit giving their proper present address with documentary evidence Page 8 of 9 Uploaded by VISHAL MISHRA(HC01088) on Tue Nov 04 2025 Downloaded on : Tue Nov 04 22:59:39 IST 2025 NEUTRAL CITATION R/CR.A/2007/2025 JUDGMENT DATED: 04/11/2025 undefined of their residential and business addresses indicating their mobile numbers and a copy of their Aadhar Card. The learned Trial Court is directed to decide the complaint on its own merits at the earliest after giving proper opportunity to all the parties. The parties are directed to cooperate with the learned Trial Court in the proceedings without seeking any unnecessary adjournment.
Sd/-
(S. V. PINTO,J) VVM Page 9 of 9 Uploaded by VISHAL MISHRA(HC01088) on Tue Nov 04 2025 Downloaded on : Tue Nov 04 22:59:39 IST 2025