Chattisgarh High Court
Ghanshyam Das Agrawal vs The State Of Chhattisgarh on 13 September, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 13.09.2022
Judgment delivered on_01.11.2022
CRA No. 2641 of 1999
• Ghanshyam Agrawal, s/o Malaram Agrawal, aged 35 years, r/o Saraipali, PS
Saraipali, Disttrict-Mahasamund (CG) ---- Appellant
Versus
• State Of MP (now CG) through the CBI ---- Respondent
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For Appellant : Shri NK Mehta, Advocate
For Respondent/CBI : Shri Himanshu Pandey, Advocate
appears on behalf of Shri B Gopa
Kumar, Assistant Solicitor General
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Hon'ble Shri Justice Parth Prateem Sahu CAV Judgment
1. Challenge in this appeal is to the judgment and conviction dated 30.09.1999 passed in Special Case-3 of 1996, whereby the 5th Additional Sessions Judge and Special Judge (CBI), Jabalpur, convicted and sentenced the appellant as mentioned below:
CONVICTION SENTENCE Under Section 420 r/w 120B of IPC RI for one year and fine of Rs.2,000/-, In default, RI for three months Under Section 468/471 r/w 120B RI for one year and fine of Rs.1,000/-, In default, IPC RI for three months Under Section 477A r/w 120B IPC RI for one year and fine of Rs.1,000/-, In default, RI for three months Under Section 13(1)(d)/13(2) of RI for one year and fine of Rs.1,000/-, In default, Prevention of Corruption Act, 1988 RI for three months rw Section 120B IPC Cra 2641 of 1999 2
2. Facts necessary for disposal of this appeal are that appellant was engaged in business of selling cloths and was having bank account in Central Bank of India, Branch Saraipali, District-Raipur, at the relevant point of time. Based on complaint received by the Central Bureau of Investigation (CBI), Anti- Corruption Bureau, Jabalpur, on 30.11.1992, FIR under Crime No.RC-54(A)/92-JBR was registered against TR Sahu, Branch Manager; VP Rout Rai, Clerk; RN Sarkar, Chief Cashier, and all employees of Central Bank, for commission of offence defined under Sections 120B, 420, 468, 471, 477-A of IPC and Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short, 'PC Act, 1988'). After completion of investigation, CBI submitted charge-sheet against present appellant and VP Rout Rai, only for alleged commission of offence under Sections 420, 408, 471, 477-A of IPC with the aid of Section 120B of IPC and Section 3(1)(d)/13(2) of PC Act with the aid of Section 120B of IPC. Appellant denied charges levelled against him. After conclusion of trial, leaned Court below holding the appellant guilty for commission of offence under Sections 420 r/w 120B, 468/470 r/w 120B, 477-A r/w 120B of IPC and Sections 13(1)(d), 13(2) of the PC Act r/w Section 120B of IPC, convicted and sentenced him as mentioned above.
3. To prove charges against appellant, prosecution examined 6 witnesses, namely, PW1 PC Lunia (retired Senior Manager); PW2 CK Pandey (Branch Manager), PW3 Umesh C Guchayat (Probationary Officer); PW4 Suresh Chand Gupta (State Examiner); PW5 TR Sahu (Branch Manager); PW6 Devendra Singh (Investigating Officer). Court below examined Niranjan (Constable) as Court witness to record his statement that co-accused VP Rout Rai is not traceable.
4. Shri NK Mehta, learned counsel for appellant would submit that appellant was convicted only with aid of Section 120B of IPC, recording finding that Cra 2641 of 1999 3 appellant entered into criminal conspiracy with VP Rout Rai, the main accused, without there being any clinching or admissible piece of evidence on record. Appellant was not named in FIR. Witnesses examined by prosecution have not levelled any direct allegation against appellant but he was implicated in the crime only because amount of Rs.10,000/- (Rs.5,000/- twice) was transferred from account of Md Altaf in account of appellant, and said amount was withdrawn by submitting a cheque of his bank account. He contended that appellant being account holder, gave cheque to the co-accused of his account. There is no allegation and evidence that appellant abetted for commission of any offence, entered into conspiracy for commission of any illegal act with co-accused VP Rout Rai, who was a Clerk in the Bank. He also contended that to bring home the charge of conspiracy under Section 120B of IPC, it is necessary for prosecution to establish that there was agreement between parties for doing unlawful act, but in this case, prosecution has not established by bringing cogent and admissible piece of evidence on record that there was any agreement between the parties. There was no meeting of mind between main accused VP Rout Rai, and appellant, who is, only an account holder of the concerned Bank. To convict appellant with the aid of Section 120B of IPC, prosecution is required to prove meeting of minds to commit an offence, which is absent in this case. In support of his contention, learned counsel placed reliance upon decision of Hon'ble Supreme Court in cases of Ex-Sepoy Haradhan Chakrabarty Vs Union of India and another (1990) 2 SCC 143, Vijayan Vs State of Kerala reported in (1999) 3 SCC 54, Sherimon Vs State of Kerala reported in AIR 2012 SC 493, State (Govt of NCT of Delhi) Vs Nitin Gunwant Shah with other case reported in 2015 CRLJ 4759 and Rajender @ Rajesh @ Raju Vs State of (NCT of Delhi) with other cases (2019) 10 SCC 623.
Cra 2641 of 1999 4
5. He next contended that in statement of accused recorded under Section 313 of CrPC, incriminating question was not put to the accused of his accusation, which is necessary and important under provisions of Section 313 CrPC and it had vitally affected prosecution case, more so, when main accused VP Rout Rai was absconding till conclusion of trial. In support of his contention, he placed reliance upon decision of Hon'ble Supreme Court in case of State of Punjab Vs Hari Singh and others reported in (2009) 4 SCC 200.
6. He contended that learned trial Court recorded finding that on the date of issuance of cheque, sufficient fund was not available in his bank account for withdrawal of Rs.10,000/- and no explanation was offered by the accused, which is perverse to the statement of accused recorded under Section 313 of CrPC. He submits that in answer to question-25, appellant has specifically stated that he gave Rs.10,000/- to VP Rout Rai and for that, he issued a cheque. Explanation offered is plausible, which ought to have been considered by learned trial Court. In view of aforementioned submissions, particularly, involvement of appellant in conspiracy is not proved by clinching evidence. All specific questions of his involvement in offence have not been put to appellant and some explanations offered were not considered by trial Court in appropriate manner. Hence, impugned judgment of conviction is liable to be set aside.
7. Shri Himanshu Pandey, learned counsel for the respondent would submit that learned trial Court on appreciation of documentary and oral evidence brought on record, rightly came to the conclusion that appellant entered into criminal conspiracy and had withdrawn amount of Rs.10,000/-. On the date of issuance of cheque, Rs.10,000/- was not available in his bank account. To prove criminal conspiracy, there may not be direct evidence but it can be proved by circumstantial evidence. He contended that prosecution proved the Cra 2641 of 1999 5 fact that appellant on the date of issuance of cheque of Rs.10,000/-, was having only Rs.1,113.75ps in his account. He issued cheque for withdrawal of Rs.10,000/- under his signature and further, no satisfactory explanation was offered in his statement recorded under Section 313 of CrPC. As main accused prior to registration of crime absconded himself, from which it can be inferred that there was motive or preparation for commission of offence as defined under Section 8 of Evidence Act. From the facts and circumstances available on record, there are reasonable grounds to believe that appellant conspired with VP Rout Rai to commit an offence. Submission of learned counsel for the appellant for the said reason that prosecution failed to prove involvement of appellant in criminal conspiracy is, not sustainable. He also pointed out that as per material available on record, Cheque issued by appellant is only signed by him and all other contents of Cheque were filled up in hand writing of co-accused VP Rout Rai. He read over finding recorded by learned trial Court with respect to circumstances available on record to support his contention that appellant was having criminal conspiracy with bank employee for committing illegal act. In support of his contention, he placed reliance on judgment passed by Hon'ble Supreme Court in case of Pratapbhai Hamirbhai Solanki Vs State of Gujarat and another (2012) 10 SCALE 237. Learned State counsel also pointed that trial Court recorded categorical finding in para-25 of judgment that appellant made an attempt to submit that amount of Rs.10,000/- was not received by him, but he only signed the cheque.
8. Shri NK Mehta, learned counsel for the appellant also submits that there is no material on record to draw such inference and therefore, observation made by learned trial Court in para-25 of judgment is contrary to material available on record.
Cra 2641 of 1999 6
9. I have heard learned counsel for the parties and also perused record of trial Court.
10. Undisputedly, when Internal Audit department received information under instructions of Chief Internal Auditor of Central Bank, of some irregularities committed by VP Rout Rai, Clerk at Central Bank of India, Sarai Pali Branch, PW2 CK Pandey conducted enquiry at Central Bank of India, Saraipali Branch. In the enquiry, he found that VP Rout Rai, Clerk, by forging withdrawal forms, withdrew about Rs.3,22,000/- from bank account of 10-12 account holders. This information was forwarded to the CBI, based upon which, crime was registered. Initially, FIR was registered only against Bank employees and during the course of investigation, appellant was also arrayed as an accused. After completion of investigation, in charge-sheet, only two persons were made accused, ie appellant and VP Rout Rai, Clerk, at Branch, Saraipali.
11. Shri CK Pandey was examined before trial Court as PW2. In his evidence, he stated names and account numbers from which VP Rout Rai had withdrawn amount by forged withdrawal forms/vouchers. He further stated that from HSS account-4345 of Md Altaf, there was withdrawal of Rs.10,000/-. PW3 Umesh, Probationary Officer in his evidence, stated that vide Annexure P11, ledger of account of appellant showing deposit, by transfer of Rs.10,000/- on 06.04.1992 and on the same day, there is mention of withdrawal of amount of Rs.10,000/-. Entries were made in Ex.P11 by co-accused VP Rout Rai, Clerk. Handwriting in cheque is of co-accused VP Rout Rai. Amount of Rs.10,000/- was withdrawn by cheque number 16905 issued under signature of Proprietor Ghanshyam Agrawal, which is in accordance with specimen signature available with bank. PW3 further stated that as per Ex.P11, ledger of account of appellant on 06.04.1992, there was credit balance of Rs.1,113.75 and if amount of Rs.10,000/- was not transferred to account of appellant, there Cra 2641 of 1999 7 was no possibility for withdrawal of Rs.10,000/- from his account. PW4 is State Examiner, who proved that from Article A5 Pg 1286 marked as A31 to A151 and A151/A152 to A 202 are in handwriting of VP Rout Rai.
12. Appellant is punished with aid of Section 120B of IPC alleging that he is party to a criminal Conspiracy to commit an offence, as committed by other co- accused (absconding). Section 120A defines criminal conspiracy and Section 120B provides punishment for criminal conspiracy. Elements of criminal conspiracy have been stated to be a) an object to be accomplished, b) a plan or scheme embodied means to accomplish that object, c) an agreement or understanding between two or more of the accused persons, whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or any or by any effectual means and, d) in the jurisdiction, where the statute required an overt act. Conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable.
13. No doubt, in a case of conspiracy, there may not be any direct evidence. The ingredients of offence are that there should be an agreement between persons, who are alleged to conspire and the said agreement should be for doing an illegal act or doing by illegal means an act which itself may not be illegal. Therefore, essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence, or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely, available.
14. There must be meeting of mind resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where, factum of Cra 2641 of 1999 8 conspiracy is sought to be inferred from circumstances, prosecution has to show that the circumstances give raise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence.
15. While proving guilt of an accused for committing an offence of criminal conspiracy like all other criminal offences, prosecution has to discharge its onus of proving the case against accused beyond reasonable doubt. Circumstances in a case, when taken together on their face value, should indicate meeting of minds between the conspirators for the intended object of meeting an illegal act or an act, which is not illegal by illegal means.
16. Though conspiracy can be proved by circumstantial evidence, each circumstance should be proved beyond reasonable doubt and the circumstance so proved must form a chain of events from which the only irresistible conclusion is about the guilt of accused and no other hypothesis against the guilt is possible.
17. Hon'ble Supreme Court in Ram Narayan Popli Vs CBI and other cases reported in (2003) 3 SCC 641 has held as under: paras 343, 344, 345 and 346 "343. No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
344. In Halsbury's Laws of England (vide 4th Ed. Vol.11, page 44, page 58), the English Law as to conspiracy has been stated thus;
Cra 2641 of 1999 9 "58. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the Court. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however, it may be. The actus rues in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to affect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other."
345. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence, it can be established by direct or circumstantial evidence. (See: Bhagwan Swarup Lal Bishan Lal etc. etc. v. State of Maharashtra, AIR (1965) SC 682 at p. 686.
346. It was held that the expression "in reference to their common intention"
in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of in the English law; with the result, anything said, done or written by a co- conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is a relevant fact only.
".....'as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it".
"In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said Cra 2641 of 1999 10 purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it, and (5) it can only be used against a co- conspirator and not in his favour."
We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. This Court in V.C. Shukla v. State (Delhi Admn.), [1980] 2 SCC 665 held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.
18. Hon'ble Supreme Court in case of KR Purushothaman Vs State of Kerala reported in (2005) 12 SCC 631 has held as under: para 13, 14, 15 "13. To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved Cra 2641 of 1999 11 by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the well-known rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine quo non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
14. Suspicion can not take the place of a legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. v. State of Maharashtra, AIR (1971) SC 885, that:
"In most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors constitute relevant material."
15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of-course, each one of the circumstance should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkaratama Reddy J. in State (NCT of Delhi) v. Navjot Sandhu (a) Afsan Guru, JT (2005) 7 SC 1, (P. 63) as follows:
Cra 2641 of 1999 12 "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-
participant conspirator cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefore are governed by statute. The offencer will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle."
19. In the case at hand, co-accused, a bank employee, who has committed offence under Section 420 of IPC, allegedly committed offence under Sections 420, 468, 471 and 477A of IPC, as also under Section 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, 1988, was not arrested and he was declared as absconder. Trial was initiated and concluded against appellant only, not an employee of the Bank but an account holder.
20. Appellant in the aforementioned crimes, is convicted only with aid of Section 120B of IPC. Appellant is a business man, resident of Saraipali, where, branch of Central Bank of India is located. Appellant is doing business of cloth and he is also having Saving Bank Account in name of 'Agrawal Cloth Store'. Name of account is appearing in para 4 of the evidence of PW3 Umesh, circumstances in which appellant has been made accused with aid of Section 120B of IPC are that co-accused, who is bank employee and having powers to withdraw and disburse amount up to Rs.10,000/- as stated by prosecution witnesses, transferred amount by forging bank vouchers from account of one Md Altaf, bearing a/c No.4345 twice of Rs.5,000/- each, in the Cra 2641 of 1999 13 account of appellant and amount was withdrawn from the account of appellant by cheque issued by him. It has also come on record that cheque was filled up by co-accused, who is absconding.
21. The explanation offered by appellant in his statement recorded under Section 313 of CrPC is that co-accused has obtained loan from him, co- accused deposited amount for withdrawal of the same, appellant has issued the cheque under his signature.
22. In the aforementioned facts of the case, where appellant is a business man, running cloth shop and also having his bank account in Central Bank of India, where co-accused was working, might be having relationship of Consumer and Banker. The explanation offered by him can be one of the plausible explanation in the facts of the case. More so, when it is not the allegation against co-accused that he committed offence under Section 420, 468, 471, as also 477A of IPC with respect to withdrawal of amount of Rs.10,000/- from one account, but as per evidence of prosecution witnesses, co-accused, fraudulently, withdrawn amount from 10-12 accounts in the bank and total amount withdrawn by co-accused by committing forgery is of Rs.3,22,000/- as stated by prosecution witnesses and bank employee, PW2. The case of prosecution against appellant is that out of total amount of Rs.3,22,000/-, only Rs.10,000/- is deposited in account of appellant and withdrawn.
23. Prosecution has not brought on record details of balance amount of Rs.3,12,000/- as to how and in what manner the said amount has been withdrawn. Evidence of PW3 vide Ex.P9 would show that on 06.04.1992 amount of Rs.5,000/- was withdrawn twice from account bearing No.4345 and said amount was deposited in the account of Agarwal Cloth Centre, owned by Cra 2641 of 1999 14 appellant. The entries are in handwriting of co-accused VP Rout Rai, and on the same date on 06.04.1992 amount was withdrawn through cheque.
24. It is not the case of prosecution that most of the amount alleged to have been withdrawn committing forgery by co-accused VP Rout Rai has been deposited in the account of appellant and thereafter, that amount has been withdrawn except the transaction of one day from one account only and not the amount from other accounts has been transferred in the account of appellant when the case of prosecution is that co-accused withdrawn amount by committing forgery from 10-12 accounts in bank.
25. In the aforementioned facts and circumstances of the ase, in the opinion of this Court, it cannot be inferred that there was an agreement between the appellant and co-accused to commit an offence, to say that appellant committed offence of criminal conspiracy. Except these circumstances, that amoutn was deposited in the account of appellant of Rs.10,000/- by co- accused, a bank employee was withdrawn by cheque by co-accused only, is not forming a chain of events by which the only resistible conclusion can be arrive at about guilt of appellant and thereby prosecution failed to prove the charge against appellant under Section 120B of IPC beyond reasonable doubt. The essence of criminal conspiracy is an agreement to do an illegal act with meeting of minds of two persons is not being proved beyond reasonable doubt.
26. For the foregoing discussions and above discussed decisions of Hon'ble Supreme Court, as also considering the facts of the case, I am of the view that appellant is entitled for benefit of doubt as the appellant has been convicted only with aid of Section 120B of IPC and therefore, finding recorded by learned trial Court convicting appellant for offences under Section 420 rw 120B, 468/471 rw 120B, 477A rw 120B of IPC, and Section 13(1)(d) r/w 13(2) of Cra 2641 of 1999 15 Prevention of Corruption Act, 1988 r/w Section 120B of IPC are set aside. Appellant is acquitted from the charges.
27. Appeal is allowed.
28. Appellant is on bail. Therefore, his bail bonds are discharged.
Sd/-
(Parth Prateem Sahu) JUDGE padma