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SCR.A/991/2008 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 991 of 2008
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PARESH
@ UPESHKUMAR NATWARLAL VYAS
Versus
GIRABEN
@ SIMABEN PARESHKUMAR VYAS & ORS
==========================================
Appearance :
MR
RAHUL K DAVE for Applicant:1
None for
Respondents:1-2
Mrs.M.L.Shah, ADDL.PUBLIC PROSECUTOR for
Respondent:3
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CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 26/06/2008
ORAL ORDER
Heard
Mr.R.K.Dave, learned Advocate for the petitioner.
It
is submitted that the learned Judicial Magistrate First Class,
Junagadh has wrongly come to the conclusion that the petitioner must
be having an income of Rs.7000/- to Rs.8,000/-. It is submitted that
there is no evidence on record to justify such a finding on the part
of the learned Judicial Magistrate. It is submitted that the learned
Judicial Magistrate has awarded a total amount of Rs.4,000/- per
month as maintenance to the respondents No.1 and 2 herein, on the
basis of the finding arrived at by the learned Judicial Magistrate
that there is no reason to believe that the petitioner would not be
earning Rs.7,000-8000/- per month. It is further submitted that it
was the specific case of the petitioner that he was being paid
Rs.1,400/- towards monthly wages as he used to work in a provision
store. However, the said aspect has not been believed by the Court
merely on the ground that he has not examined the employer.
It
is further submitted that the learned Sessions Judge, Junagadh was
not justified in confirming the said order by holding that the
learned Judicial Magistrate First Class, Junagadh has rightly come
to the conclusion that the petitioner had an income of
Rs.7000-8000/- per month.
Considering
the submissions advanced by the learned Advocates for the parties
and looking to the impugned orders passed by the Courts below,
prima-facie, it appears that there was no basis for the
learned Judicial Magistrate to arrive at the finding that the
petitioner had an income of Rs.7,000-8,000/-. In the circumstances,
issue NOTICE returnable on
30th July, 2008. Ad-interim relief is granted in terms of
paragraph-17(c) subject to the petitioner paying Rs.2,000/- per
month towards maintenance regularly.
Mrs.M.L.Shah,
learned Additional Public Prosecutor waives service of Notice on
behalf of respondent No.3-State of Gujarat.
(HARSHA
DEVANI, J.)
Amit/-
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