SHIVSHANKAR DUDHNATH UPADHYAY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Application has been filed by the applicant praying to quash and set aside the order passed in Criminal Case No. 3031 of 2010 by the Court of Additional Judicial Magistrate, First Class, Vapi below Exhibit 2 dated 23.02.2011 rejecting an application preferred under Section 239 of the Code of Criminal Procedure, 1973 (for brevity "CrPC") and to discharge the petitioner in connection with the Criminal Case No. 3031 of 2010 pending before the Court of Additional Judicial Magistrate First Class, Vapi.

(2.) Brief facts of the case are that the petitioner is a Transport Contractor and Commission Agent. He engaged in the business in the name and style of "Shri Krishna Roadlines" at Vapi GIDC. The petitioner does not own any truck. However, he calls for truck from the market and supplies it to the party after taking his commission. That, for supplying the goods at Kanpur, complainant called the petitioner to supply the truck and from market, the petitioner made available truck, being registration No. UP-70-AT-9985 having driver named Javed Mohammed Gafar and owner Pannalal Jaiswal. Yarn was loaded on 29.05.2010 and additional goods viz., chemical was loaded on the said truck, since the capacity of the truck was 16 tones. Neither the goods were delivered nor driver and truck was traceable for quite long period, and therefore, an FIR , being CR No. I-64 of 2010 was registered with Vapi GIDC Police Station under Section 407 and 114 of the Indian Penal Code on 09.06.2010, wherein, the petitioner was described as accused no.3. That, in this connection, the petitioner was arrested on 22.07.2010 and thereafter, released on bail. The Investigating Agency filed charge sheet against the petitioner on 21.08.2010, wherein he is mentioned as accused no.1, since the driver and owner of the truck were absconding. Thereafter, the petitioner preferred an application vide Ex. 2 in Criminal Case No. 3031 of 2010 before the learned Judicial Magistrate, First Class, Vapi under Section 239 CrPC to discharge him. The said application came to be rejected by the Court of learned Additional Judicial Magistrate, First Class, Vapi on 23.02.2011 and as against the said order, the petitioner has preferred the present petition.

(3.) Heard learned advocate Mr. Chetan K. Pandya appearing on behalf of the petitioner and learned APP Mr. LB Dabhi appearing on behalf of the respondent no.1-State.