Gujarat High Court
Housing And Urban Development ... vs M/S Tilak Reality Estate Private ... on 4 November, 2025
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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
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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
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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
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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
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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
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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
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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
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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
