DAVANG RAMEDHBHAI SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Devang Rameshbhai Shah, the petitioner-original accused No.1 is before this Court being aggrieved by order dated 23rd November 2004 passed by the learned Judicial Magistrate (First Class), Ankleshwar in Criminal Case No.1093 of 2002. The order is passed below Exh.40; a Discharge Application. Short facts giving rise to the present proceedings are that one, Jagdishbhai Patel, the complainant filed a complaint against three persons. Devang Rameshbhai Shah, Nehal B. Shah and Nikunj R. Shah, were accused Nos. 1, 2 and 3 respectively. Before filing the complaint notice was given on 10th January 2002 to all the aforesaid accused persons. Along with others two, Devang R. Shah, the present petitioner also thought it fit not to reply the said notice. It is thereafter, that the complainant was constrained to file the complaint dated 4th February 2002 making specific averments that Devang R. Shah was also one of the persons in charge of the affairs of the partnership firm and therefore, he is jointly and severally liable for the allegations made in the complaint. The petitioner, Devang R. Shah, may be on ill advice, did not bother to take any steps in the matter and only after almost one year filed Discharge Application in the year 2003 which came to be dismissed by order dated 23rd July 2003. Against that order, Revision Application being Criminal Revision Application No.121 of 2003 was filed before the learned District & Additional Sessions Judge, Bharuch, which too was rejected by order dated 10th March 2004.

(2.) The petitioner then filed second Discharge Application, with certain documents praying the same relief as was prayed in the first Application. The second Discharge Application is rejected by order dated 23rd November 2004, which order is under challenge in the present Revision Application.

(3.) Mr.H.P. Vyas, the learned advocate appearing for the petitioner vehemently contended that as is held by this Court in the matter of KARTIK KIRTIBHAI PAREKH & ANOTHER VS. STATE OF GUJARAT & ANOTHER REPORTED IN 2005 (1) GLR 361, 'only bald assertion in the complaint should not weigh with the learned Judicial Magistrate (First Class), the learned Judge should consider the question of discharging the petitioner.' In this regard the learned advocate relied upon para 17 of the judgement which reads as under: