Telangana High Court
Moole Jaya Pradha And Another vs The State Of Telangana And Another on 30 August, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.11432 of 2018
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioners - accused Nos.2 and 3 to quash C.C.No.127 of 2016 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad, registered for the offence under Sections 498-A, 406 and 420 of the Indian Penal Code and Sections 4 and 6 of Dowry Prohibition Act.
2. The facts in brief as can be gathered from the record available before this Court are as hereunder:
a) On 13.04.2016 at 4.00 PM the respondent No.2-de-facto complainant has lodged a complaint before the Women Police Station, CCS, DD, Hyderabad alleging that her marriage was performed with her husband B.Naresh Kumar Reddy in the year 1988 and they were blessed with two children viz., B. Samyuktha and B.Shashank Reddy. Her daughter B.Samyuktha has completed her masters in Australia and on the insistence of respondent No.2-de-facto complainant her friend by name Smt. Bharathi has shown marriage alliance of Moole Harsha Vardhan Reddy (accused No.1), who is working in 2 Peoria USA as residency Doctor in OSF Hospital and settled in Hyderabad. On 02.05.2014 accused No.1 along with his parents, maternal uncle Samba Shiva Reddy and maternal aunty Dakshayani came to the house of de-facto complainant at Madanapally and accepted for the marriage proposal of accused No.1 and daughter of the de-facto complainant. Since Accused No.1 is leaving for USA on 10.05.2014, accused have insisted for arranging betrothal function on 08.05.2014 and on such instance betrothal function was performed between accused o.1 and daughter of de-facto complainant by incurring Rs.5 lakhs towards expenses. When the family members of de-facto complainant have requested to fix the date of marriage, accused No.1 informed that since his house is small, he intends to renovate his building and thereafter to get married and apart from that accused No.1 has requested the husband of de-facto complainant to arrange Rs.40 lakhs for completion of the construction work. Accordingly, the husband of the de-facto complainant has borrowed Rs.4 lakhs from Dr.N.Ravi Kumar, Rs.3 lakhs from G.Rajasekhar and Rs.3 lakhs from R.Himagiri and gave an amount of Rs.10 lakhs in total to accused on the same day i.e., on 08.05.2014.3
b) On 09.05.2014 accused No.1 came to the house of brother of de-facto complainant viz., Muralidhar at Yousufguda, wherein daughter of the de-facto complainant stayed to give send off accused No.1 to USA, enquired with her about their property details and requested to arrange an amount of Rs.5 lakhs for his use as credit and on that the de-facto complainant has requested her brother and her maternal uncle by name Surendhranath Reddy to arrange the said amount and accordingly they have given the said amount of Rs.5 lakhs to accused No.1 on 09.05.2014. Thereafter accused No.1 went to USA.
c) When the de-facto complainant and her husband have asked accused No.1 to fix the date of marriage, they have been postponing the date of marriage on one pretext or the other.
When the husband of de-facto complainant has contacted accused No.1 through phone, he replied that the house work is not yet completed and an amount of Rs.25 lakhs is required to complete the work. Accordingly, the de-facto complainant and her mother have availed loan of Rs.25 lakhs from State Bank of Hyderabad, Madanapalle Branch by hypothecating their properties and transferred the amount to various bank accounts 4 of accused No.3 via RTGS and the details of which are as follows:
Sl.No. Account No. Amount (Rs.) Date
1 771010021914 5,00,000/- 27.09.2004
2 111910025030674 5,00,000/- 27.09.2004
3 20002947960 2,00,000/- 27.09.2004
4 111910100142710 5,00,000/- 27.09.2004
5 771010021914 8,00,000/- 01.10.2014
Total 25,00,000/-
d) Accused No.1 used to be in contact with daughter of the
de-facto complainant on skype or over a phone and during their conversation, accused No.1 came to know about the financial difficulties faced by her family. Since then accused No.1 started speaking rudely with the daughter of the de-facto complainant and pressurized her to adapt to USA culture. In the month of October, 2014 accused No.1 came to India informed to the de- facto complainant and her husband that he has no compatability with their daughter. When the same was informed to brother and parents of accused No.1, they insisted to transfer any immovable property in favour of accused No.1 since the income of accused No.1 is not sufficient for setting up family at USA. The de-facto complainant and her husband assured that on the income generated from the property situated at Industrial Estate, Madanapalle standing in the name of their daughter, accused No.1 can maintain family at USA. 5 Thereafter, accused No.1 went to USA. In the month of November, 2014, on the request of the parents of accused No.1 for Rs.10 lakhs towards marriage expenses, an amount of Rs.7 lakhs was given to accused No.3.
e) On the date fixed by accused Nos.1 and 2, the marriage of accused No.1 with daughter of the de-facto complainant was performed on 07.12.2014 at Madanapalli, wherein the de-facto complainant has incurred Rs.55 lakhs to meet the marriage expenses apart from giving gold and jewellery, costly clothes and gifts to their daughter and to accused Nos.1 to 3.
f) When the nuptials were arranged on 07.12.2014, the accused No.1 did not shown any interest towards the daughter of the de-facto complainant by stating that he has no mood to participate in the first night. On 08.12.2014, on the request of accused No.1 and his brother Vishnu Vardhan Reddy, an amount of Rs.5 lakhs was arranged by husband of de-facto complainant for reception at Hyderabad. Even though the daughter of de-facto complainant and accused No.1 stayed together for four days, their marriage was not consummated as accused No.1 was avoiding the daughter of the de-facto complainant. Accused No.1 has informed the daughter of the 6 de-facto complainant that they are not going to return the amounts, which were received by them and that the same may be treated as dowry. Accused No.1 stated that he is a Doctor working in USA and if gets married to any other girl, he would have got 2 to 3 crores and thus, demanded to get Rs.1 crore as dowry within five or six months.
g) On 14.12.2014 accused No.1 alone went to USA leaving the daughter of the de-facto complainant at his parents' house. Accused Nos.2 and 3 have requested the daughter of the de- facto complainant to bring Rs.2 lakhs for the education of brother of accused No.1. Accordingly, the de-facto complainant has arranged the said amount through her brother Muralidhar. Accused were not happy with the amounts given by the de-facto complainant and they harassed the daughter of the de-facto complainant to get more amount.
h) On dependent visa arranged by accused No.1, the daughter of the de-facto complainant alone went to USA and when she went to the airport, none has come to the airport to receive her and accordingly she went to the address given by accused No.1 by engaging a Taxi and key was kept outside the door mat. Accused No.1 has informed the daughter of the de- 7 facto complainant that he is on call duty and will not be able to stay with her and went to attend hiss duty and for one week she alone stayed in the said house. When the daughter of the de- facto complainant has telephoned to accused No.1, he abused her and told her not to disturb him. When the daughter of the de-facto complainant has informed the strange attitude of accused No.1 to his parents, they informed to bear with him as the horoscope of accused No.1 is not good upto July, 2015.
i) Though accused No.1 was staying away from daughter of the de-facto complainant and avoiding her, he used to demand her to bring amounts from her parents towards household expenses and for purchase of furniture. Accused No.1 is addicted to chat with other girls for hours taking about sex. When this attitude of accused No.1 was informed by daughter of the de-facto complainant to the parents of accused No.1, they demanded Rs.1 crore towards dowry and also spoke with her rudely. The de-facto complainant with the help of their relatives at USA i.e., Harini and Karthik, arranged household items and cash to her daughter but accused No.1 took away all his belongings from the house and leaving the daughter of the de- facto complainant alone.
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j) On the request of de-facto complainant to settle the issue, accused No.2 alone went to USA and spoke to the daughter of the de-facto complainant, who has narrated about the harassment of accused No.1. But accused No.2 has demanded to give Rs.1 crore as dowry and if she fails to do so, accused No.1 would give divorce to her. On 03.08.2015 husband of de- facto complainant and accused No.3 went to USA and discussed with daughter of the de-facto complainant and accused No.1, for which accused No.1 informed that he cannot lead any marital life with the daughter of the de-facto complainant without assigning any reason. On enquiry, accused No.1 informed that he is not fit for marital life as he is impotent and that he would seek for cancellation of marriage at USA. When they have informed about the same to accused No.2 and 3, they replied that they would convince accused No.1 to lead marital life with the daughter of de-facto complainant, if they arrange Rs.1 crore. After that accused Nos.1 to 3 have packed all the luggage and left to new house of accused No.1 without any prior information and did not answer to their calls. Accused No.1 filed a petition for divorce in the Courts at USA and got exparte divorce without giving any notice to the daughter of the de-facto complainant to contest the case.
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k) Though the marriage was performed on 07.12.2017, accused No.1 did not make any attempt to lead married life with the daughter of the de-facto complainant and avoided her by picking up quarrel with her without any cause. Accused No.1 has suppressed that he is impotent and unfit for marital life. Accused have played fraud on the de-facto complainant and her husband and took loans amounting to Rs.54 lakhs and moreover the accused informed them that they have adjusted the said amount towards dowry apart from demanding further sum of Rs.1 crore. Accused No.1 has married the daughter of the de-facto complainant for the sake of money only, obtained decree of divorce without giving notice to the daughter of the de- facto complainant and thus, accused Nos.1 to 3 have cheated the de-facto complainant. Accused have harassed the daughter of the de-facto complainant physically and mentally in USA, Madanapally and also at Hyderabad. Though, Accused Nos.2 and 3 are aware that accused No.1 is not fit for marital life, they have supported the acts of accused No.1.
l) Based on the said complaint, a case in Crime No.242 of 2016 was registered by Women Police Station, CCS, DD, Hyderabad against the accused for the offence under Sections 498-A, 406 and 420 of the Indian Penal Code and Sections 4 10 and 6 of the Dowry Prohibition Act. Aggrieved by the same, the petitioners-accused Nos.2 and 3 have preferred the present criminal petition to quash C.C.No.127 of 2016 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad against them mainly on the following grounds:
i) Even on reading the allegations made against the petitioners in the complaint, no offence is made out against the petitioners for the charges leveleld against them and that they have not demanded any additional dowry or any property either from de-facto complainant or her daughter. Though respondent No.2-de-facto has paid Rs.25 lakhs to petitioner No.2-accused No.3, an amount of Rs.30 lakhs was repaid by petitioner No.2-
accused No.3 instead of Rs.25 lakhs. The rest of the allegations, if any are only against accused No.1 but not against the petitioners herein.
ii) Daughter of respondent No.2-de-facto complainant has filed HMOP No.63 of 2016 on the file of Principal Senior Civil Judge, Madanpalle for annulment of the marriage, dated 07.12.2014 under Sections 12 (1)(a)(2)(b)(ii) and 13 (1)(ia) of the Hindu Marriage Act. During the pendency of the OP, the respondent No.2 and her family members came with a proposal 11 to the effect that accused No.1 agrees for decree for divorce, they will withdraw the allegations made in the original petition and on such understanding between the parties to give a quietus to the litigation, the accused No.1 agreed for it on the ground that the allegations in the original petition are to be withdrawn and contents made in the counter filed by the accused No.1 in the OP as well as chief affidavit of second petition as RW1 are to be taken as true. The respondent No.2 and her family members agreed for such proposal and accordingly, the decree was granted for annulment of the marriage as the marriage was not consummated even after three years.
iii) The daughter of the respondent No.2 agreed in her cross- examination to the effect that there were not talking terms since the date of marriage between herself and accused No.1, which itself is sufficient to hold that the present allegations are nothing but false.
iv) Once the allegations in the OP as well as in the present complaint are one and the same and the contents raised in the counter of accused No.1 (respondent therein) denying the allegations made in the OP are admitted to be true, there is no justification on the part of the respondent No.2 in continuing 12 the present prosecution against accused Nos.1 to 3, which is nothing but gross abuse of process of law. On reading of the complaint, it indicates that it is nothing but recover of the amount allegedly paid by them but not for any offence as alleged.
v) The conditional affidavit given by accused No.1 would reveal that he has agreed for granting of decree for annulment of marriage only on the condition that the daughter of the respondent No.2 shall withdraw all the allegation made in the OP and the contents in the counter filed by him to be taken as true. Since, such an understanding arrived between the parties, the respondent No.2 now though to file the present complaint on behalf of her daughter because her daughter having agreed in the OP cannot file the present complaint against accused Nos.1 to 3.
vi) The Hon'ble Apex Court has time and again held that relatives of the husband cannot be roped into in a mechanical manner without any specific allegations without harassment meted out in their hand by the victim. It is no where stated that the daughter of the respondent No.2 has stayed with the petitioner after her marriage and during the stay also she 13 categorically admitted in her cross examination that there were not talking terms with her husband and her in - laws, which gives an indication that the petitioners have never harassed at any point of time.
4. Now the point for determination is:
"Whether the proceedings against the petitioners - accused Nos.2 and 3 in C.C.No.127 of 2016 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad can be quashed under Section 482 of the Code of Criminal Procedure?
5. Heard Sri Ch.Dhanunjaya, learned counsel for the petitioners, Sri T.Nagarjuna Reddy, learned counsel for the respondent No.2 as well as Sri S. Ganesh, learned Assistant Public Prosecutor.
6. As seen from the record, the major allegations made by the de-facto complainant are against accused No.1, who is none other than the husband of the daughter of the de-facto complainant i.e., LW2. Some of the allegations leveled against accused No.1 are in respect of the incidents that happened in India. Even according to the de-facto complainant and others, accused No.1 has taken exparte divorce against LW2. 14
7. On careful perusal of the statements of the de-facto complainant, victim and others, prior to marriage of LW1 with accused No.1, the family of accused No.1 have collected amounts to the tune of Rs.54,00,000/-. Initially accused No.1 has informed the family of the de-facto complainant that the house they live in is very small and in order to construct and renovate the house, they have taken some amounts from the family of the de-facto complainant and at the time of taking that amount, it is specifically mentioned that the amount was being taken as loan and it is also revealed from the complaint and statements of de-facto complainant and the victim that all the amounts were asked by accused No.1 and an amount of Rs.25,00,000/- was deposited into the different bank accounts of accused No.3.
8. According to accused, the petitioner No.2-accused No.3 stated to have repaid Rs.30 lakhs to the family of the de-facto complainant. In order to substantiate the offence under Section 498-A of the Indian Penal Code, the de-facto complainant is expected to prove that the petitioners have demanded money as part of dowry but the amounts collected by the petitioners are only in respect of construction / renovation of the house and 15 other purposes. Even though it is alleged subsequently by the de-facto complainant that the petitioners have refused to give the money saying that the money, which was taken by them has to be treated as dowry. But it is only a bald statement and even according to the de-facto complainant and her family members, the petitioners never parted the said amount as dowry.
9. On going through the entire case of the de-facto complainant, the dispute arose when the marriage of LW2 has not been consummated with accused No.1 stating that accused No.1 was impotent, which has triggered the dispute between both the families. It is alleged that the petitioners have demanded more money in order to see that the accused No.1 accepts LW2. However, the conduct of the petitioners, if observed, it is clear that on the request made by the de-facto complainant and her family, the petitioners all the way went to USA and tried to convince their son to have a matrimonial life. If at all, on account of impotency or other reasons, if the marriage of accused No.1 with LW2 is not consummated, the petitioners cannot be found fault.
10. In order to prove the offence under Section 498-A of the Indian Penal Code, not only the prosecution is expected to prove 16 that LW2 - victim was subjected to harassment for demand of additional dowry but also to prove that such harassment meted out by the victim is of such a nature that it shall drive LW2 to commit suicide or a bodily hurt. In the case on hand, there are no such allegations that the harassment of the petitioners lead the de-facto complainant to go to the extent of hurting herself or attempted to commit suicide. In fact there is no whisper or any allegations mentioned by the Police against any of the petitioners herein.
11. In Onkar Nath Mishra and others vs. State (NCT of Delhi) and another1, the Hon'ble Apex Court held as follows:
"17. The term "cruelty", which has been made punishable under Section 498A I.P.C. has been defined in the Explanation appended to the said Section, to mean:
(i) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or (ii) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Therefore, the consequences of cruelty, which are either likely to drive 1 (2008) 2 Supreme Court Cases 561 17 a woman to commit suicide or to cause grave injury, danger to life, limb or health, whether mental or physical of the woman or the harassment of a woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand are required to be established in order to bring home an offence under Section 498A I.P.C."
12. It has become a practice in this part of State to involve the kith and kin of the husbands as one of the accused in the complaint under Section 498-A of the Indian Penal Code in order to harass them, so that they can exert pressure on accused No.1, who would come in terms with the aggrieved wife.
13. In an authority between Preeti Gupta and another vs. State of Jharkhand and another2, wherein the Hon'ble Apex Court held as follows:
"The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into 2 (2010) 7 Supreme Court Cases 667 18 consideration while dealing with matrimonial cases.
The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.
14. The complaint filed by the victim herein clearly speaks that she has made allegations only against her husband. It is also mentioned in the complaint that her husband's parents used to instigate her husband to harass her and insist for additional dowry. The allegations against the petitioners herein are omnibus very general in nature and they do not speak as to on which date, in whose presence and at which place such allegations of harassing the victim were made.
15. In Neelu Chopra and another vs. Bharti3, the Hon'ble Apex Court held as follows:
"In order to lodge a proper compliant, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence."
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(2009) 10 Supreme Court Cases 184 19
16. The High Court of Madhya Pradesh in Abhishek Pandey @ Ramji Pandey and others vs. State of Madhya Pradesh and others4, held as follows:
"The High Court in number of cases has observed that in a case where complaint is made by the wife against the husband and his family members only after filing a petition for divorce then the same is considered to be a counter-blast, just to create pressure upon the husband so that he may withdraw the case relating to decree of divorce. It is also observed by the High Court that if the fact indicates that the wife has not raised any voice alleging demand of dowry for long and has also not approached any authority regarding her grievances, but only after filing a suit by the husband complaint is made by the wife then the said complaint is considered to be a counter-blast and prosecution is considered to be an act apparently to harass the husband and his family members and such a complaint/FIR has been quashed"
17. In view of the principle laid down in the above said authorities and in view of the facts and circumstances and since the allegations leveled against the petitioners are omnibus and generic in nature as no offence is made out against the petitioners for the offence under Section 498-A of the Indian Penal Code.
18. The other offence alleged against the petitioners is under Sections 420 and 406 of the Indian Penal Code. In order to 4 Criminal Revision No.521 of 2021 dated 18.08.2021 20 constitute an offence under Section 420 IPC, the de-facto complainant is expected to allege and prove that the acts and omissions of the petitioner constitute the ingredients of the offence under Section 420 IPC.
19. In Vijay Kumar Ghai and others vs. The State of West Bengal and others5 the Hon'ble Supreme Court held at paragraph Nos. 31 to 35 as under:
"31. Section 415 IPC defines "cheating" which reads as under:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."
The essential ingredients of the offence of cheating are:
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that person--
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no so deceived, and which 5 (2022) 7 SCC 124 21 act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
32. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
33. Section 420 IPC defines "cheating and dishonestly inducing delivery of property" which reads as under:
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
34. Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.
35. To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved:
(i) The representation made by the person was false.
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(ii) The accused had prior knowledge that the representation he made was false.
(iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
(iv) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed."
20. In the case on hand, when the husband of de-facto complainant has contacted accused No.1 through phone, he replied that the house work is not yet completed and an amount of Rs.25 lakhs is required to complete the work. Accordingly, the de-facto complainant and her mother have availed loan of Rs.25 lakhs from State Bank of Hyderabad, Madanapalle Branch by hypothecating their properties and transferred the amount to various bank accounts of accused No.3 via RTGS.
21. It is to be seen that on the request of accused No.1 for completing the construction work, the amount was transferred in the accounts of accused No.3. Except this allegation, there is no other allegation against the petitioners herein, more particularly against petitioner-accused No.2. Learned counsel for the petitioner has submitted that though respondent No.2- de-facto has paid Rs.25 lakhs to petitioner No.2-accused No.3, 23 an amount of Rs.30 lakhs was repaid by petitioner No.2- accused No.3 instead of Rs.25 lakhs. To this submission, there is no reply on behalf of respondent No.2-defact complainant. So, the money, which was deposited by the de-facto complainant into the accounts of petitioner No.2-acused No.3 have already been repaid by the petitioners. Though the de- facto complainant has alleged that they have parted with Rs.52 lakhs to accused, an amount of Rs.25 lakhs was deposited into the various bank accounts of petitioner No.2-accused No.3, who has submitted that he has paid back Rs.30 lakhs to de-facto complainant and her husband. Hence, the question of cheating or criminal breach of trust does not arise.
22. In view of the above discussion, whatever allegations leveled by de-facto complainant are only against accused No.1 only and the acts of petitioners-accused Nos. 2 and 3 does not attract any of the offences alleged against them. Hence, continuation of the proceedings against the petitioners in C.C.No.127 of 2016 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad amounts to abuse of process of law.
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23. In the result, the Criminal Petition is allowed and thereby the proceedings against the petitioners-accused Nos.2 and 3 in C.C.No.127 of 2016 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad, are hereby quashed.
As a sequel, the miscellaneous Petitions, pending if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 30.08.2022 AS