Himachal Pradesh High Court
State Of H.P vs Sita Ram Yadav & Another on 14 March, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, P.S.Rana
IN THE HIGH COURT OF HEMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 322 of 2012
Reserved on: March 11, 2016.
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Decided on: March 14, 2016.
State of H.P. ......Appellant.
Versus
Sita Ram Yadav & another .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice P.S.Rana, Judge.
of
Whether approved for reporting? 1 Yes.
For the appellant: Mr. M.A.Khan Addl. AG.
For the respondents: Mr. Vishal Panwar, Advocate, for respondent No.1.
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Justice Rajiv Sharma, J.
rt The State has come up in appeal against the judgment dated 31.12.2011, rendered by the learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P. in Case No. 01 of 2006, whereby the respondents-accused (hereinafter referred to as accused), who were charged with and tried for offences punishable under Sections 409, 420, 467, 468, 471, 120-B IPC and 13(2) of the Prevention of Corruption Act, have been acquitted.
2. The case of the prosecution, in a nut shell, is that a complaint mark PX was made by Pradhan PTA to DC Kullu alleging therein that there had been misuse of public money which was sanctioned for the fencing of the wall of Government High School, Chawai. For inquiry, the complaint was entrusted to ASI Kapoor Chand by S.P. Enforcement Zone. During inquiry, it was revealed that for erecting retaining wall/breast wall and fencing work of ground of 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 2School, a total sum of Rs. 2,40,000/- were sanctioned by D.C.Kullu.
On checking bills, muster rolls, MBs and MAS register, it was noticed .
that work to the tune of Rs. 1,35,116/- was shown to be carried out.
However, when the work was got assessed from SDO, HP PWD, Ani, it was found that the same was worth of Rs. 58,836/-. It also came to light that on 20.3.2011, material worth Rs. 90,144/- such as wire of mesh was shown to have been given while handing over the charge. The amount had wrongly been shown in the MB by preparing false bills. The inquiry also revealed that accused Sita Ram Yadav, rt the then J.E. with Block Development Office had handed over to Sh.
Ramesh Gandhotra J.E., 70 bags of cement, 9 M3 sand and 6.89 M3 of aggregate of value of Rs. 19,550/-. However, in the MB, by forging bills, material worth Rs. 56,730/- was shown to have been given while handing over charge to Ramesh Gandhotra. Sh. Sita Ram Chauhan (since deceased), the then BDO, Ani had entered into conspiracy with Sita Ram Yadav as well as accused Kamal Dev, who had prepared false bills and also forged the record by misusing their powers while causing loss/misappropriating to the public funds meant for the execution of the work. Sh. Kamal Dev has expired on 11.1.2012. The work was entrusted by the BDO to J.E. on his own. No estimate was got prepared and no tenders were invited. The wire mesh and angle iron worth Rs. 1,19,974/- was purchased from Skirni Hardware, Ani vide bill No. 1706, dated 30.3.1999. Vide bill No. 1924,dated 1.6.1999, 150 ::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 3 cement bags had been allegedly purchased from Malhotra Traders by respondent No. 1 regarding which entry was made at page No. 93 of .
MB. On 28.5.1999, Sita Ram Yadav had collected quotations for sand, stones and aggregate (Bazri) which were to be opened by the BDO. The BDO in order to help Kamal Dev Ex-Pradhan, Chawai accepted his quotation despite the fact that he was not a sand contractor. He had of no permission to deal with sand and was not having crusher. The BDO without checking the material passed the bill for an amount of Rs.
52,400/- and thereby made payment vide cheque No. 661470 dated rt 7.6.1999. The BDO also issued muster roll No. 314 for fencing to JE for the period from 1.6.1999 to 30.6.1999 and thus got entrusted the work for execution to Sita Ram Yadav. It was also detected that the workers who were named in the muster rolls had been engaged by Kamal Dev accused who used to supervise the work. As per the muster roll, 20 labourers/beldars were shown to have worked in the execution of work but in the investigation only 10 were found to have actually worked. The material was purchased without checking the same. Fake bills were prepared. It also transpired that Kamal Dev accused had procured quotations in the name of Kumbh Dass and Roshan Lal regarding stones, sand and aggregate by getting the same prepared fakely and got his quotations approved from BDO for the supply of material who also passed bills amounting to Rs. 52,400/-. On ::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 4 completion of the investigation, challan was put up after completing all the codal formalities.
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3. The prosecution, in order to prove its case, has examined as many as 33 witnesses. The accused were also examined under Section 313 Cr.P.C. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
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4. Mr. M.A.Khan, Addl. AG has vehemently argued that the prosecution has proved the case against the accused persons beyond reasonable doubt. On the other hand, Mr. Vishal Panwar, Advocate, rt has supported the judgment of the learned trial Court dated 31.12.2011.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
6. PW-1 Atma Ram deposed that he was Pradhan of PTA Chawai School. The budget was approved for fencing the ground of the School. It had come to the Block from DC, Kullu. It came to his notice that initially Rs. 1.5 lacs had been sanctioned to the Block for the work in question and subsequently Rs. 90,000/- were received by the Block.
The work was being executed by the Block since 1999. Its pace was quite slow. When in the year 2001, the new Panchayat came into being, he inquired from the then BDO regarding the work in question.
At that time, the BDO told that since the funds had exhausted and the further work could not be executed. When the work had been ::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 5 sanctioned, at that time, Sita Ram was the BDO and now he has died.
JE was Sita Ram Yadav. At that time, accused Kamal Dev was the Up .
Pradhan of Gram Panchayat Chawai. He made complaint to the Deputy Commissioner vide mark PX. In his cross-examination, he admitted that Mark PX did not bear his signatures. He had no personal knowledge as to how much work was got conducted and what was the of expenditure that incurred thereon. He did not inquire regarding the details of work and expenditure incurred thereon. He did not inquire from the Block regarding payment amounting to Rs. 30,086/- made to rt the labourers. He did not know that BDO through accused Kamal Dev had made payment to the labourers. He did not know that iron/wire mesh of value of Rs. 1,19,974/- was purchased and the payment was made by BDO Sita Ram to Skirny Hardware, Ani. He did not know that similarly BDO Sita Ram had paid Rs. 22,800/- to Malhotra Traders through cheque. He also admitted that at that time, material such as aggregate, sand and stones were lying on the site. He did not know that BDO Sita Ram had made payment of Rs. 52,400/- to Kamal Dev accused. He did not know that when accused Sita Ram Yadav was transferred at that time he handed over material worth Rs. 90,144/- to his successor Vijay Kaushal. He also admitted that the work was being executed by the Block directly without the indulgence of the Panchayat.
The muster rolls were issued by the Block. In case the work was to be executed by the Panchayat, the muster rolls were to be issued by it. He ::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 6 reiterated that even after stoppage of the work, some material, such as, sand, aggregate etc. was lying on the spot.
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7. PW-2 Vijay Kaushal deposed that he was posted as JE in BDO Office, Ani since November, 1999. He was associated in the investigation by the police. He handed over record to the police vide memo Ext. PW-2/A. In his cross-examination, he admitted that when of he was handed over the charge, at that time, accused Sita Ram Yadav had given to him wire mesh measuring 3600 sq. feet and M.S. flat weighing 2232 Kg. He could not say that their value was Rs. 90,144/-.
rt He also admitted that the work which was executed by the Block, the payment was to be made by the BDO and Superintendent of the BDO Office. The payment to the labour is made on the identification of the Mate. He also deposed that the Panchayat had no role in the execution of the work.
8. PW-3 Beli Ram deposed that in the year 2002, he was posted as Secretary Gram Panchayat Chawai. He was associated by the police during the investigation in the case. He handed over the record to the police for the period of 1995 to 2001 which was taken into possession by the police vide Ext. PW-1/A.
9. PW-4 Kamlesh Kumar deposed that he was posted as P.A. in the office of BDO. He was associated by the police during the investigation in the case. He handed over the record mentioned in Ext.
PW-2/A to the police. Memo Ext. PW-2/A was signed by him.
::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 710. PW-5 Sant Ram deposed that he has attested the signatures of Sita Ram Yadav.
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11. PW-6 Kumb Dass deposed that he has not put his signatures on Ext. P-20. He has not worked as labourer in the construction of fencing of the School. In his cross-examination, he has admitted that he has not disclosed the names of the accused persons to of the police that they have forged his signatures on muster roll Ext. P-20.
12. PW-7 Lal Chand deposed that he has worked as labourer in the construction of fencing of the School. He was engaged as labourer.
rt He has worked for 26 days @ Rs. 51/- per day. It was paid to him. He has not put his signatures in red circle R-1 on the muster roll Ext. P-
20. In his cross-examination, he has deposed that he had received money from Kamal Dev. He has never worked as mate. He has only worked as labourer.
13. PW-8 Pune Ram deposed that he was working as mason from the year 1999 to 2005. Alongwith him, 5-7 labourers were working for constructing wall. He identified muster roll Ext. P-20. He has signed the same in red circle R-2.
14. PW-9 Chaman Lal deposed that he had worked as labourer in the construction of fencing of the School and work of angle iron.
There were six labourers and two masons working for the said work.
15. PW-10 Sohan Lal and PW-11 Rajesh Kumar also deposed that they have worked in the site along with 8 persons.
::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 816. PW-12 Brikam Chand deposed that he has not worked in the fencing work of the High School ground.
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17. PW-13 Chapa Ram deposed that he has not put his signatures in red circle as P-4 on the muster roll Ext. P-20. He has given his signatures before Naib Tehsildar, Ani.
18. PW-14 Shyam Dass deposed that he has also not worked of as labourer in the construction of fencing of the School. He has put his signatures in red circle R-8 on the muster roll Ext. P-20.
19. PW-15 Sadhu Ram deposed that he has worked for six rt days in fencing work at High School Chawai. He has not put his signatures in red circle R-9 on the muster roll Ext. P-20.
20. PW-16 Chaman Dass deposed that he has not worked as labourer in the construction of fencing of the School. He has not put his signatures in red circle R-10 on the muster roll Ext. P-20.
21. PW-17 Prem Chand deposed that he was called by Kamal Dev for fencing work. He has not put his signatures in red circle R-11 on the muster roll Ext. P-20.
22. PW-18 Shyam Lal deposed that he has worked in the construction of fencing of the School. Lal Chand paid him for the work.
He has not put his signatures on the muster roll Ext. P-20.
23. PW-19 Joginder Singh deposed that he has not worked as labourer in the construction of fencing of the School. He has not put his signatures in red circle R-13 on the muster roll Ext. P-20.
::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 924. PW-20 Hira Lal deposed that he has worked as labourer in the construction of fencing of the School. He has not put his .
signatures in red circle R-14 on the muster roll Ext. P-20.
25. PW-21 Chaman Lal deposed that he has not worked as labourer in the construction of fencing of the School.
26. PW-22 Shyam Singh and PW-23 Karam Dass deposed that of they have not worked in the fencing work in the High School Chawai.
27. PW-24 Kamal Kant Saroch deposed that the accused was posted as JE in the Block. Sita Ram had got passed a muster roll No. rt 314 of the period June, 1999 from him. He had visited the spot and found that the boundary wall had already been constructed. On the spot, there were angle iron put on the boundary wall and on some portion of the boundary wall, wire mesh was put. In his cross-
examination, he deposed that cash is kept in chest, of which one key is kept by the Accountant/Superintendent and another by the BDO.
Usually when payment of cash is made to the JE, receipt is taken. He also admitted that for payment of cash, receipt should have been taken.
28. PW-26 Karam Chand Sharma deposed that he started the investigation on 1.8.2002. He went to BDO Office Ani and took into possession record pertaining to Govt. High School, Chawai vide memo Ext. PW-2/A. He has also obtained their specimen signatures from Naib Tehsildar, Ani. Specimen signatures were obtained of twelve persons, namely, S/Sh. Lal Chand, Roshan Lal, Chaman Lal, Shyam ::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 10 Lal, Sohan Lal, Sadhu Ram, Charan Dass, Chaman Lal, Hira Lal, Rajesh, Shyam Dass and Chepa Ram. On 3.8.2002, he also obtained .
specimen signatures of Prem Chand. He also called Sita Ram Yadav for getting his specimen signatures and handwriting at Dharamshala. He admitted categorically in his cross-examination that in this case he was trapped. He denied that he was demanding Rs. 50,000/- from accused of Sita Ram Yadav for getting it settled. He admitted that he was tried in the Court of ADJ, Mandi. Volunteered that the same stands decided in his favour. He admitted further that BDO was the executing agency.
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29. PW-28 Dr. Meenakshi Mahajan has proved reports Ext.
PW-28/B and PW-28/C. In cross-examination, she admitted that the police had not asked to identify the author of the writings in Exts. P-5, P-6 and P-7. By seeing the writing in the Court, she could not say whether they have been written by one person or otherwise. She could not say anything about the author of the writing by looking at them with naked eyes.
30. PW-29 Surinder Singh Thakur deposed that on 1.8.2002, specimen signatures of 12 persons were taken in his Court on the application of the police. These were identified by Atma Ram, Ex-
President, Gram Panchayat Chawai. In his cross-examination, he admitted that he was not knowing the persons personally whose signatures were taken by him.
::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 1131. PW-30 Gujant Singh deposed that he remained posted as Assistant Engineer, HPPWD Sub Division, Ani, w.e.f. 9.2.2001 to .
31.10.2003. He remained associated in the investigation of this case.
His assessment report is Ext. PW-30/A and it was signed by Sh. Jai Kumar J.E. According to him, the total cost in respect of expenditure was Rs. 58,836/-. In his cross-examination, he admitted that when of assessment report was prepared, accused Sita Ram Yadav was not called by them. The site was shown to him by the police and the local people. At the spot iron angles were fixed vertically and horizontally.
rt He got excavated some portion of the land, however, he did not remember as to how much portion was got excavated by him. He did not remember the names of the persons who excavated the portion of land. There were 25 iron angles fixed vertically. He admitted towards the end of his cross-examination that head load carriage for carrying cement, sand, aggregate, stone and water had not been taken on prevailing market rates and in assessment report he had taken the same as per the schedule rate pertaining to the year 1987. He did not make assessment on the spot. He did not assess the value of the construction material lying at the site.
32. PW-31 Ram Singh deposed that he had not worked in fencing work of the school.
33. PW-32 Kapoor Chand deposed that the complaint was entrusted to him for inquiry. He inquired into the complaint. On the ::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 12 basis of inquiry, he sent rukka Ext. PW-32/A on the basis of which FIR was registered. In his cross-examination, he admitted that the .
application mark PX was not signed by anyone. He could not say that the payment of muster roll Ext. P-20 was made by cheque or by cash.
He did not check the record of BDO office. He had visited the spot alongwith SDO for assessing the work done by the accused. He did not of remember as to whether the official from BDO was with them or not.
The work at site was shown to him by the complainant Atma Ram. He did not associate any official from BDO Office to conduct inquiry. He rt did not associate accused Kamal Dev during inquiry. He also admitted that sand, stones and grit was lying unused on the spot.
34. PW-33 Babita Negi, has proved the prosecution sanction accorded by Superintending Engineer, 14th Circle, HPPWD, Rohru.
35. Though the complaint Mark PX was made by PW-1 Atma Ram, but he has not signed the same. The Block has got the work executed from the labourers. He did not remember the names of the local labourers. He had no personal knowledge as to how much work was executed and how much expenditure was incurred thereon. He did not inquire regarding the details of work and expenditure incurred thereon. He did not inquire from the Block regarding payment amounting to Rs. 30,086/- made to the labourers. He did not know that BDO through accused Kamal Dev had made payment to the labourers. He did not know that iron/wire mesh of value of Rs.
::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 131,19,974/- was purchased and the payment was made by BDO Sita Ram to Skirny Hardware, Ani. He did not know that similarly BDO Sita .
Ram had paid Rs. 22,800/- to Malhotra Traders through cheque. He also admitted that at that time, material such as aggregate, sand and stones were lying on the site. He did not know that BDO Sita Ram had made payment of Rs. 52,400/- to Kamal Dev accused. He did not know of that when accused Sita Ram Yadav was transferred at that time he handed over material worth Rs. 90,144/- to his successor Vijay Kaushal. The muster rolls were issued by the Block. He also admitted rt that the work was being executed by the Block directly without the indulgence of the Panchayat. PW-2 Vijay Kaushal, in his cross-
examination, admitted that when he was handed over the charge, at that time, accused Sita Ram Yadav had given to him wire mesh measuring 3600 sq. feet and M.S. flat weighing 2232 Kg. He did not know the value of the same was Rs. 90,144/-. He also admitted that the work which was executed by the Block, the payment was to be made by the BDO and Superintendent of the BDO Office. The payment to the labour is made on the identification of the Mate. PW-24 Kamal Kant Saroch, in his cross-examination, deposed that cash is kept in chest, of which one key is kept by the Accountant/Superintendent and another by the BDO. Usually when payment of cash is made to the JE, receipt is taken. He also admitted that for payment of cash, receipt should have been taken.
::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 1436. PW-32 Kapoor Chand deposed that the complaint was entrusted to him for inquiry by the Superintendent of Police. He .
inquired into the complaint. In his cross-examination, he admitted that the application mark PX was not signed by anyone. He could not say that the payment of muster roll Ext. P-20 was made by cheque or by cash. He did not check the record of BDO office. He had visited the of spot alongwith SDO for assessing the work done by the accused. The work at site was shown to him by the complainant Atma Ram. He did not associate any official from BDO Office to conduct inquiry. He did rt not associate accused Kamal Dev during inquiry. He also admitted that sand, stones and grit were lying unused on the spot. PW-30 Gujant Singh has prepared the assessment report Ext. PW-30/A. In his cross-
examination, he admitted that when assessment report was prepared, accused Sita Ram Yadav was not called by them. The site was shown to him by the police and the local people. He did not remember the names of the persons who excavated the portion of land. At the spot iron angles were fixed vertically and horizontally. He got excavated some portion of the land, however, he did not remember as to how much portion was got excavated by him. He admitted towards the end of his cross-examination that head load carriage for carrying cement, sand, aggregate, stone and water had not been taken on prevailing market rates and in assessment report he had taken the same as per the schedule rate pertaining to the year 1987.
::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 1537. According to the muster roll Ext. P-20, Rs. 30086/- had been paid to the labourers. However, from the statement of PW-24, .
Kamal Kant, who was BDO, Ani at the relevant time, it is not proved that the amount was paid by Sita Ram and subsequently, payment was made to the labourers as per their names mentioned in muster roll Ext.
P-20. In case, he had paid money to him, he was supposed to take of receipt of the same. Ext. P-18 is the bill which was passed by BDO Ani vide Ext. P-17 and payment was made through cheque No. 625002 dated 3.4.1999. Ext. P-19 is the receipt of the person who has received rt this cheque from BDO Ani. Ext. P-13 is the bill which was raised by Malhotra Traders in the sum of Rs. 2,800/- in respect of 150 bags of ACC cement. The payment of the bill was passed by the BDO vide Ext.
P-11 through cheque No. 869939 dated 2.6.1999. Ext. P-12 is the receipt of the same. Ext. P-8 is the bill which was raised in the sum of Rs. 52,400/- by Kamal Dev accused for supplying stones, sand and aggregate. Vide Ext. P-9 bill was passed by BDO Ani and payment was made through cheque No. 661470 dated 7.6.1999. The cheque was received by Kamal Dev accused vide receipt Ext.. P-10.
38. The prosecution has not led any clinching evidence to the effect that respondent J.E. Sita Ram Yadav was entrusted any amount and that he has misappropriated the same for his own use or for the use of his co-accused. The amount, as discussed hereinabove, was ::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 16 passed by the BDO, Ani and payments were released through cheques to the concerned quarters.
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39. Now, as far as signatures on various receipts are concerned, PW-28 Dr. Minakshi Mahajan, Asstt. Director FSL, Junga has admitted that the police had not asked to identify the author of the writings in Exts. P-5, P-6 and P-7. By seeing the writing in the Court, of she could not say whether they have been written by one person or otherwise. She could not say anything about the author of the writing by looking at them with naked eyes. Thus, there is not an iota of rt evidence which would prove that accused Kamal Dev had prepared false quotations Ext. P-5, Ext. P-6 and Ext. P-7. There is ample evidence on record to prove that the work was executed by BDO office and not by the Panchayat. The muster rolls were also issued by Block.
Thus, the prosecution could not proved that the accused Kamal Dev has made interpolations in the muster rolls or engaged labourers/beldars. There is no evidence that accused Kamal Dev has made payments to the labourers.
40. The prosecution has also alleged that accused Kamal Dev never supplied the material in question for which he has received the payment, since he was not registered contractor. There is no requirement that the construction material could only be supplied by the registered contractor having mining licence. The construction ::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 17 material could be purchased by making payments, rather it has come on record that sand, aggregate etc. were lying on the spot unused.
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41. PW-30 Gujant Singh has not assessed the value of the material lying on the spot. Even, the site was shown to him by the police and the local people. He got excavated some portion of the land, however, he did not remember as to how much portion was got of excavated by him. He did not associate any official from the office of BDO. He has not got the material used for construction attested from the Laboratory. He has made entry as per the schedule pertaining to rt the year 1987.
42. It has come in the statement of PW-2 Vijay Kaushal that when he was handed over the charge, accused Sita Ram Yadav had given him wire mesh measuring 3600 sq. feet and M.S. flat weighing 2232 kg. He did not know the value of this material could be Rs.
90,144/-. The payments have been made to the parties through cheque. The prosecution has miserably failed to prove that money was appropriated by Sita Ram Yadav. There is no evidence that accused Sita Ram Yadav has paid the money to the labourers amounting to Rs.
30,086/-.
43. It has also come on record that PW-26 Karam Chand was trapped in this case for taking money from the accused. He was tried in the Court of ADJ, Mandi, though he was acquitted. He was apprehended while accepting Rs. 15,000/-. The possibility of the ::: Downloaded on - 15/04/2017 19:54:20 :::HCHP 18 accused being falsely implicated by PW-26 Karam Chand cannot be ruled out since Sita Ram Yadav has not paid the amount as demanded .
by him. Thus, the prosecution has failed to prove the case against the accused. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 31.12.2011.
44. Accordingly, there is no merit in this appeal and the same of is dismissed.
( Rajiv Sharma ), Judge.
March 14, 2016,
rt ( P.S. Rana),
(karan) Judge.
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