R/CR.MA/17454/2025 ORDER DATED: 23/09/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 17454 of 2025 In F/CRIMINAL APPEAL NO. 23554 of 2025 ========================================================== GOVINDBHAI HAMIRBHAI BARAI Versus AVEROX INFRASTRUCTURE INDIA PVT. TLD THRO MANDIPSINH (MANVENDRASINH) PARVINSINH JADEJA & ANR. ========================================================== Appearance: MR DHRUV D DESAI(9909) for the Applicant(s) No. 1 MR. ADITYA JADEJA, APP for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MS. JUSTICE S.V. PINTO Date : 23/09/2025 ORAL ORDER 1. The present application is filed by the applicant – original complainant seeking leave to file an appeal against the order dated 04.01.2025 passed by the learned Additional Chief Judicial Magistrate, Devbhumi Dwarka at Khambhalia (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1802/2020, whereby the learned Trial Court has dismissed the Criminal Case for want of prosecution as the applicant did not remain present under the provisions of Section 256(3) of Cr.P.C. and the respondent no. 2 - original accused came to be acquitted from the offence under Section 138 of Negotiable Instrument R/CR.MA/17454/2025 ORDER DATED: 23/09/2025 Act, 1881 (hereinafter referred to “the NI Act” for short). 2. Heard learned advocate Mr. Dhruv Desai for the applicant and learned APP Mr. Aditya Jadeja for the respondent State. 3. Learned advocate Mr. Dhruv Desai for the applicant submits that the applicant and the respondent no. 1 are in construction business and they had business dealings and the applicant had done some work for the respondent no. 1. A part payment was made by the respondent no. 1 and towards the outstanding amount, the respondent no. 1 had issued cheque no. 000277 dated 20.06.2020 for Rs. 10,00,000/- from his account with ICICI Bank, Ahmedabad Branch. The cheque was deposited by the applicant in his account with Axis Bank, Khambhalia Branch but the cheque returned unpaid with the endorsement “Refer to Drawer / Not Arranged For”. The demand statutory notice was given but the amount was not repaid within the stipulated period and hence, the applicant filed criminal complaint under Section 138 of the NI Act before the Court R/CR.MA/17454/2025 ORDER DATED: 23/09/2025 of Judicial Magistrate First Class, Jamkhambhalia which came to be registered as Criminal Case No. 1802/2020. After the learned Trial Court took cognizance of the offence, summons were issued to the respondent no. 1 and along with the complainant, the applicant had filed the affidavit of examination-in-chief at Exh. 5, the documents relied upon vide list at Exh. 3 and an application at Exh. 6 for exhibiting the documents. The summons were issued to the respondent no. 1 and thereafter, the respondent no. 1 did not remain present and hence, bailable warrants and non- bailable warrants were issued to the respondent no. 1 but the respondent no. 1 succeeded in avoiding service of warrants. Learned advocate submits that the applicant and his advocate were present on all the dates adjourned before the learned Trial Court and the applicant had also given innumerable applications for service of the warrants and had also personally gone along with the police for service of the warrants but the respondent no. 1 was successful in avoiding service. The learned Trial Court, by the impugned order dated 04.01.2025 was pleased to conclude that the R/CR.MA/17454/2025 ORDER DATED: 23/09/2025 applicant had failed and neglected to proceed further with the matter and as the case was a “targeted case” and there was no just and proper reason to prolong the case, passed the impugned order and dismissed the matter. Learned advocate submits that the rojkaam would clearly reflect the innumerable efforts put in by the applicant and by no stretch of imagination can it be said that the applicant was neglectful and did not make any efforts to conduct the matter. In fact, the applicant had filed the examination-in- chief and all the documents but it was the respondent no. 1 who was successful in avoiding service and the impugned order has been passed. Learned advocate submits that the applicant has a good case on merits and hence, has urged this Court to allow the application seeking leave to appeal. 4. Learned APP Mr. Aditya Jadeja for the respondent State has submitted that the learned Trial Court has considered the absence of the applicant and has passed the impugned order of acquittal but considering the copy of the rojkaam, necessary orders may be passed. R/CR.MA/17454/2025 ORDER DATED: 23/09/2025 5. Considering the submissions of learned advocate for the applicant as also on perusal of the rojkaam produced on record, prima facie, it appears that the documents have not been properly appreciated in proper perspective. In the peculiar facts and circumstances of the case in the considered opinion of this Court the application deserves to be considered. Consequently, the application seeking leave to appeal is granted and disposed off accordingly. (S. V. PINTO,J) VASIM S. SAIYED Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: VASIM SHABBIR SAIYED(HC01902), PRIVATE SECRETARY, at High Court of Gujarat on 23/09/2025 15:06:34