Himachal Pradesh High Court
State Of H.P vs Bidhi Chand Son Of Shri Shiv Ram And ... on 9 October, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal Nos. 252 of 2013.
Reserved on: October 08, 2015.
Decided on: October 09, 2015.
.
State of H.P. ......Appellant.
Versus
Bidhi Chand son of Shri Shiv Ram and another .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
of
For the appellant(s): Mr. Parmod Thakur, Addl. AG with Mr. Neeraj K. Sharma,
Dy. AG.
For the respondents: Mr. Ashok Sharma, Sr. Advocate, with Mr. Angrez Kapoor,
Advocate.
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Justice Rajiv Sharma, J.
The State has filed this appeal against the judgment dated 4.10.2012, rendered by the learned Special Judge, Hamirpur, H.P, in Corruption Case No. 03 of 2011, whereby the respondent-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 7 & 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act), were acquitted.
2. The case of the prosecution, in a nut shell, is that on 26.10.2009, the police party headed by Insp. Khushi Ram (PW-11) was patrolling in the area of Badiana Jungle in Tehsil Bhoranj, Distt.
Hamirpur. In the meantime, complainant Raj Kumar (PW-4) and Vikas (PW-6) met the police and the complainant Raj Kumar moved an application Ext. PW-1/A addressed to the Superintendent of Police, State Vigilance Anti-Corruption Bureau (hereinafter referred to as SV & ACB) to ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 2 PW-11 Insp. Khushi Ram. It was alleged in the application that the complainant is resident of VPO Jahu, Tehsil Bhoranj. In lieu of .
preparation of "Fard Mouka Kabja", in a partition case pertaining to his land bearing Kh. No. 1189, the accused persons were demanding bribe of Rs. 1000/- and the complainant had been called to the spot with the bribe money by the accused. As the complainant did not want to pay any gratification, he sought action against the accused. PW-11 Insp. Khushi of Ram made an endorsement on the application and sent the same to the Police Station SV & ACB through HHC Gian Chand (PW-9), for registration rt of a case against the accused persons. FIR Ext. PW-1/B was registered.
Thereafter, the I.O (PW-11) deputed HHC Sunil Kumar to bring independent witnesses from the SDM Office and I.O. gave demonstration by display of two chemicals i.e. Sodium Carbonate and Phenolphthalein in the presence of the complainant and other witnesses Vikas and Gurcharan.
Solution of two powders was made separately in two glasses of water and when the separate powders were put in each glass, their colour remained natural and when these solutions were mixed together, then its colour turned into pink. The solution was put in a nip Ext. P-1 and sealed with seal impression "H". It was taken into possession vide memo Ext. PW-8/A. The I.O also took sample of seal on a piece of cloth vide Ext. PW-8/B and handed it over to witness Vikas. The I.O. asked the complainant to produce the currency notes which were to be given to the accused persons.
He produced two currency notes of the denomination of Rs. 500/- each.
::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 3The numbers of the notes were noted down by the Inspector in the memo Ext. PW-8/C. The currency notes were treated with the powder and given .
to the complainant to hand over the same to the accused on their demand.
The I.O. further directed the complainant not to shake hands with the accused and witness Vikas was asked to accompany the complainant. In the meantime, official witness PW-5 P.R. Dhiman also came to the spot and then the raiding party proceeded to the spot. The complainant and witness of Vikas went on their scooter to the house of one Rakesh Kumar at Jahu.
The raiding party also proceeded to the spot and near the house of Rakesh rt Kumar, they remained hidden in the bushes. After about ten minutes, on receiving the signal from shadow witness Vikas, the I.O. alongwith HC Sunil Kumar and Gurcharan went inside the house of Rakesh Kumar. The accused persons were found sitting on a Sofa. The I.O. after giving his identity to the accused, asked them to hand over the bribe money which they had taken from the complainant. The hands of the accused were got washed in a plate and the colour of the water remained the same. Solution of Sodium Carbonate was prepared. When the hand wash of the accused was mixed in the solution of Sodium Carbonate, its colour turned into pink. The pink solution was put in a nip Ext. P-2 and P-3 and it was sealed with seal impression "H". Sh. P.R. Dhiman got the numbers of the notes tallied with the memo Ext. PW-8/C. The currency notes were put in an envelope Ext. P-4 and were taken into possession vide memo Ext. PW-
5/B. The pocket wash of the shirts of the accused was also taken and the ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 4 solution was put in nips Ext. P-11 and P-6. The I.O. also prepared the spot map. The accused were arrested. The investigation was completed and the .
challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 11 witnesses. The accused were also examined under Section 313 Cr.P.C. According to them, the complainant wanted favour from them being public servants i.e. Patwari and Kanungo in his partition petition of of Abadi and they did not oblige him, hence a false case was made out against them. The learned trial Court acquitted the accused, as noticed hereinabove.
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4. Mr. Parmod Thakur, learned Addl. AG, for the State, has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. Ashok Sharma, Sr. Advocate, appearing on behalf of the accused has supported the judgment of the learned trial Court dated 4.10.2012.
5. I have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
6. PW-1 DSP Ajay Rana deposed that on 26.10.2009, he received rukka Ext. PW-1/A, through HHC Gian Chand at 7:30 PM. On the basis of rukka, FIR Ext. PW-1/B was registered at Police Station SV & ACB, Hamirpur under his signatures.
7. PW-2 Surinder Pal, has produced Ext. PW-2/A and PW-2/B. In his cross-examination, he admitted that he has seen the "Fard Mauka ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 5 Kabza" dated 29.5.2009, certified copy of which was Ext. DA. Similarly, Ext. DB was the copy of Tatima, Ext. DC was copy of field book, Ext. DD .
was copy of statement of Raj Kumar and Ext. DE was copy of report of Field Kanungo dated 29.5.2009, which are certified copies of the original record.
8. PW-3 Parkash Chand has brought the file from the Office of D.C. Hamirpur, whereby sanction to launch prosecution against accused of persons was granted by the D.C. Hamirpur vide Ext. PW-3/A and PW-3/B.
9. PW-4 Raj Kumar deposed that he was running repair shop of rt sewing machines at Jahu. He is owner of land bearing Kh. No. 1189, situated at Jahu Khurd. Tehsildar Bhoranj passed an order of partition of this land and ordered to prepare Fard Moka Kabja. Patwari Gian Chand and Kanungo Bidhi Chand asked him to give them Rs. 1000/- for preparing correct record on the spot. They asked him to come to the house of Rakesh Kumar on 26.10.2009 with the money of Rs. 1000/-. He did not want to give bribe to the accused. Therefore, he wrote an application Ext.
PW-1/A to the Dy. S.P. Vigilance, Hamirpur. He alongwith Vikas were going on scooter to give the complaint to Vigilance against the accused persons. When they reached at Badyana jungle, he saw Sunil there who was already known to him. Sunil was employed with the Vigilance department. He stopped the scooter and had a talk with Sunil. Sunil introduced him to Inspector of the Vigilance Department present there. He handed over the application Ext. PW-1/A to the Inspector and the ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 6 Inspector sent the application through a Constable to Vigilance Office, Hamirpur. The Inspector gave demonstration of mixing Sodium Carbonate .
and Phenolphthalein. The two chemicals were mixed in water in two separate glasses, colour of the same was natural white and when both the mixtures were mixed together, colour of the same turned slight pink. The pink colour mixture was put in a nip and the nip was sealed with seal impression "H". His signatures were obtained on blank paper and memo of of demonstration was not prepared in his presence. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied that rt memo in this regard was prepared and he signed the same. He categorically deposed that the accused did not demand any money from him nor did he produce any money to the police to be given to the police.
He has not paid any money to any of the accused nor they demanded anything from him. He also denied that two currency notes of the denomination of Rs. 500/- each were given to the police. He also denied that the police treated the same with the phenolpthalien and noted down its number on the memo and thereafter handed over to him with the direction not to shake the hand and to give the same on the demand made by the accused persons. He also denied that after giving the notes to him the raiding party and the witnesses washed their hands. He also denied that he was apprised by the I.O. that Vikas would accompany him and watch the proceedings and when the money is given on demand, Vikas will give signal to the police party. He also denied that in this regard the memo ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 7 of handing over of the money and noting down of number and hand wash of the raiding party was prepared. He has admitted his signatures on .
memo Ext. PW-4/B. However, he denied that the memo was prepared in his presence and in the presence of Vikas and Gurcharan Singh.
Volunteered that his signatures were obtained on the blank paper. He admitted that he went to the spot alongwith Vikas. He denied that the accused persons demanded money from him and he gave Rs. 500/- each to of each of the accused. He also denied that when he returned to the room, the accused were taking tea. He also denied that Vikas had given signal to rt the police and thereafter raiding party came inside the room. Volunteered that Vikas had left his company in the bazaar. He also denied that accused persons disclosed their names as Bidhi Chand and Gian Chand.
He also denied that hands of the accused Bidhi Chand were washed in a plate. He also denied that the solution of the sodium carbonate was prepared and put in a glass of water and its colour remained natural. He also denied that when the hand wash of the accused was mixed in a solution of sodium carbonate, its colour turned into pink. He also denied that mixture of the hand wash was put into a nip and sealed with seal impression "H". He also denied that accused was asked to produce the bribe money and he took out from his pocket and gave it to the police. He also denied that the number of the recovered notes was tallied by one P.R. Dhiman with the memo prepared at the time of handing over the currency notes to him. He also denied that these currency notes were packed and ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 8 sealed in envelope. He also denied that the shirt of accused Bidhi Chand was arranged. He also denied that one solution of sodium carbonate was .
prepared and the colour of the said mixture remained natural and when the cloth wash water was mixed in the solution of sodium carbonate its colour turned pink. The water was put in a nip and sealed with seal impression "H". He also denied that the shirt of accused Bidhi Chand was put in a cloth parcel and sealed with seal impression "H". He also denied of that the hands of the accused Gian Chand were washed in a plate. He also denied that the hand wash of the accused was mixed in the solution of rt sodium carbonate, its colour turned into pink. He also denied that the mixture of the hand wash was put into a nip and sealed with seal impression "H". In his cross-examination by the learned Advocate appearing on behalf of the accused, he admitted that in a partition case titled as Raj Kumar vrs. Rakesh Kumar, Fard Mauka Kabja was prepared by the Patwari on 29.5.2009 and sent to Tehsildar. The objections were raised before the Tehsildar by the other party named Ram Rakha. When police came to the house of Rakesh Kumar, he was sent out of the room.
His signatures were obtained in the Police Post Jahu. The application Ext.
PW-1/A was dictated to him by Vigilance Staff and Sunil Kumar.
10. PW-5 P.R. Dhiman, deposed that he was associated in the police raiding party. He alongwith the police officials were hiding in bushes nearby the place of occurrence. After some time police party received a signal from a house and he alongwith the police officials went there and ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 9 entered the room. The wrists of accused persons were caught hold by the police personnel. The hands of accused Gian Chand were washed in a .
plate and the water remained natural water colour. Mixture of sodium carbonate was prepared in a glass and its colour remained natural. On mixing both the mixtures, its colour turned to light pink and the same was put in a nip Ext. P-3. Thereafter, the accused Gian Chand took out the money from his pocket and gave to the police official. The said note was of given to him and he tallied its number with the number noted down in the memo already prepared which was found to be correct. The note was put rt in an envelope Ext. P-4. Thereafter, accused Bidhi Chand took out the money from his pocket and gave to the police official. The note was given to him and he tallied its number with the number noted down in the memo. In his cross-examination, he admitted that he was given written order by the SDM at 2:15 PM. They reached at the place of occurrence at about 3:00 PM. The raid was conducted at 4-4:30 PM. The house where the raid was conducted was not visible from the place where they were standing. According to him, only Vikas was present in the room. He saw the currency notes in the hands of vigilance persons. He also admitted that the accused persons were refusing to sign by saying that the colour of nips Ext. P-2, Ext. P-3, Ext. P-6 and Ext. P-1 were not light pink and was natural colour of water.
11. PW-6 Vikas Thakur deposed that Raj Kumar had told him that the Patwari and Kanungo were demanding bribe. He had never ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 10 accompanied Raj Kumar to the Vigilance Police for making complaint on his scooter. He was declared hostile and cross-examined by the learned .
Public Prosecutor. He denied that on 26.10.2009 Raj Kumar told him to accompany him on his scooter for making complaint. He also denied that when they reached at Badiyana jungle at about 4:00 PM, Raj Kumar saw one government gypsy standing near the road side. He also denied that he stopped his scooter and told to the police official Anil Kumar that accused of persons are demanding bribe. He also denied that Raj Kumar gave an application in his presence to the Inspector. He also denied that Sunil rt Kumar was earlier known to him. He also denied that Inspector of Vigilance Department gave a demonstration as to the nabbing of the accused. He also denied that the police displayed the demonstration of two powders i.e. sodium carbonate and phenolphthalein, which were mixed in two separate glasses of water and their colour remained natural and when these mixtures of the glasses were mixed together its colour turned pink.
He also denied that the mixture was put in a nip Ext. P-1. He also denied that the same was sealed with seal impression "H". He also denied that Police Inspector asked Raj Kumar to produce the tainted money. He also denied that he produced two notes of the denomination of Rs. 500/- each and the same were treated with phenolphthalein after noting down their numbers in the memo and these were handed over to the complainant Raj Kumar after preparing memo. He also denied that he was apprised that he would go with Raj Kumar to the spot and watch the entire proceedings. He ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 11 also denied that he was apprised that when the money was to be given on demand he would give a signal to the raiding party. He also denied that .
memo Mark-B was prepared in his presence. However, he admitted his signatures on Mark-B. He also denied that he went to the spot along with Raj Kumar. He also denied that Bidhi Chand and Raj Kumar were caught from the wrists by the police personnel. He also denied that after he gave signal, the police raiding party entered in the room and caught hold of the of accused persons from their wrists. He also denied that the hands of accused Bidhi Chand and Gian Chand were washed in a plate turn by turn rt and the colour of the same remained water natural colour. He also denied that mixture of sodium carbonate was prepared separately in a glass and the colour of the same remained natural water colour and on mixing both the mixtures, its colour turned to light pink. He also denied that the mixtures were put in separate nips Ext. P-2 and P-3. He also denied that accused persons turn by turn produced currency notes of denomination of Rs. 500/- each. He also denied that the same were given to PW P.R. Dhiman who tallied the same with the numbers noted down in the memo already prepared. He also denied that memo in this regard was prepared.
He admitted his signatures on the memo. Volunteered that he has signed on the blank papers. He denied that notes were separately put in envelopes Ext. P-4 and P-9. He admitted signatures on envelopes Ext. P-4 and P-9. He denied that the accused were asked to arrange the shirts. He denied the preparation of nips Ext. P-6 and P-11.
::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 1212. PW-7 Hem Raj has produced the original record about the appointment and posting orders of Patwaris and Kanungos. He produced .
attested copies of appointment and posting orders of Bidhi Chand Kanungo vide Ext. PW-7/A and PW-7/B and the attested copies of appointment and posting orders of Gian Chand Patwari vide Ext. PW-7/C and PW-7/D.
13. PW-8 Const. Gurbachan Singh deposed that on 26.10.2009, he alongwith Insp. Khushi Ram, and other police party had gone on patrolling of in a vehicle bearing No. HP-03-3025 driven by Const. Surinder Kumar.
They went to Badiyana jungle and stopped there for Nakabandi. At about rt 4:00 PM, two persons came in a scooter and on seeing HHC Sunil Kumar, they stopped there and talked with him. One of the persons disclosed his name as Raj Kumar and told him that Patwari Gian Chand and Kanungo Bidhi Chand were demanding bribe from him for giving demarcation and Fard Kabja Nishandehi. He did not want to give bribe for the work.
Thereafter the complaint was lodged. Inspector Khushi Ram gave the demonstration. Accused were nabbed. In his cross-examination, he deposed that Raj Kumar and Vikas met them in Badiyana jungle at about 4:00 PM. He admitted that whenever they go on patrolling, the departure is noted in the daily diary register. He also admitted that his name does not find mention in Ext. DX. Volunteered that he obeyed the orders of his superior.
14. PW-9 HHC Gian Chand deposed that Inspector Khushi Ram after reading the application Ext. PW-1/A made endorsement and gave it to ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 13 him to be taken to Dy. S.P. SV and ACB, Hamirpur, Vijay Rana. He took the same to the Dy. S.P. .
15. PW-10 HC Umeshwar Singh deposed that the case property was deposited with him.
16. PW-11 Insp. Khushi Ram deposed that he alongwith his team was on patrolling duty. At 4:00 PM, they stopped at Badiyana jungle. In the meantime, two persons came on a scooter and on seeing them stopped of their scooter and started talking with HHC Sunil Kumar. HHC Sunil Kumar brought them to him and disclosed that Raj Kumar intended to talk rt to him. Thereafter, Raj Kumar told him that he was going to SV and ACB PS Hamirpur to give application to the effect that Patwari Gian Chand and Kanungo Bidhi Chand were demanding bribe of Rs. 1000/-. He did not want to give bribe. Raj Kumar has written application Ext. PW-1/A. He made endorsement. The same was sent to Dy. S.P. He gave demonstration before the complainant and witnesses. The raiding party was constituted.
They went to Jahu. The police party was informed that the accused were waiting in the house of Rakesh Kumar. He along with other persons of the raiding party was standing near the house of Rakesh Kumar. Raj Kumar and Vikas entered the house of Rakesh Kumar. After 10 minutes, they got a signal from shadow witness Vikas. Then HHC Sunil Kumar and Const.
Gurbachan Singh went inside the house of Rakesh Kumar. They also followed them. The accused were nabbed and formalities were completed on the spot. The accused handed over the currency notes to him.
::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 14Thereafter, the hands of accused persons were got washed. Their shirts were also washed. Nips were prepared. The case property was deposited .
with MHC Ramesh.
17. The case of the prosecution has not been supported by complainant PW-4 Raj Kumar and PW-6 Vikas. Both the witnesses were declared hostile. PW-4 Raj Kumar in his cross-examination by the learned Public Prosecutor has denied that the accused had demanded any money of from him nor they have produced any currency before the police. In his cross-examination, he has admitted that in a partition case titled as Raj rt Kumar vrs. Rakesh Kumar, Fard Mauka Kabja was prepared by the Patwari on 29.5.2009 and sent to the Tehsildar. The objections were raised by the other party before the Tehsildar named Ram Rakha. When Fard Mauka Kabja was already prepared on 29.5.2009, there was no occasion for the accused to demand gratification on 26.10.2009. PW-6 Vikas in his cross-examination by the learned Public Prosecutor has denied that Raj Kumar has given application in his presence to the Inspector. He also denied that the demonstration was given by the Inspector Vigilance Department. He also denied that complainant produced two notes of denomination of Rs. 500/- and the same were treated with powder. He denied that he was apprised that he would go with Raj Kumar to the spot.
He denied that he went to the spot with Raj Kumar. He also denied that accused were caught from the wrists by the police personnel. He also denied that after he gave signal, the police raiding party entered in the ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 15 room and caught hold of the accused persons from their wrists. He also denied that the hands of accused Bidhi Chand and Gian Chand were .
washed in a plate turn by turn and the colour of the same remained water natural colour. He denied that the shirts of the accused were also washed.
PW-4 Raj Kumar and PW-6 Vikas have not corroborated the story of the prosecution regarding demand or acceptance of the tainted money by the accused. The prosecution has failed to establish the demand of bribe of money by the accused from the complainant and its acceptance by the accused.
18. rt According to PW-5 P.R.Dhiman, only Vikas was present in the room. Thus, he has denied the presence of complainant in the room. He has also admitted that the accused were refusing to sign by saying that the colour of nips Ext. P-2, Ext. P-3, Ext. P-6 and Ext. P-1 were not light pink and was natural water colour. He also deposed that the statements of accused and Vikas were not written in his presence. He saw the currency notes in the hands of vigilance persons. Thus, he has demolished the case of the prosecution that accused had produced currency notes to the police in his presence. He also admitted that all the papers including recovery memos were prepared and statements of witnesses were recorded in the Police Post, Jahu. According to him, the accused were arrested and thereafter taken to Police Post and after that the case was prepared.
19. PW-8 Gurbachan Singh was also the member of the raiding party. However, his name is not mentioned in document Ext. DX, copy of ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 16 daily dairy dated 26.10.2009. The names of all the police officials are mentioned in Ext. DX except the name of PW-8 Gurcharan Singh.
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20. The case of the prosecution, precisely, is also that the complainant has met PW-11 Insp. Khushi Ram at 4:00 PM and thereafter endorsement was made on Ext. PW-1/A and matter was sent for registration of FIR. The request was made by the I.O. for bringing two independent witnesses vide Ext. D-1. The order was passed on application of by SDM Bhoranj at 1:55 PM. PW-5 P.R.Dhiman has testified that he was given written order by the SDM at 2:15 PM. They reached at the place of rt occurrence at about 3:00 PM. It further belies the case of the prosecution that the complaint was made at 4:00 PM. It proves that the things were planned much before the alleged complaint. The authenticity of "Fard Mauka Kabza" dated 29.5.2009, certified copy of which was Ext. DA, Ext.
DB the copy of Tatima, Ext. DC copy of field book, Ext. DD copy of statement of Raj Kumar and Ext. DE copy of report of Field Kanungo dated 29.5.2009, was never in dispute. These documents were prepared on 29.5.2009.
21. The prosecution of the accused persons was sanctioned vide Ext. PW-3/A and PW-3/B. These documents have not been proved by summoning the sanctioning authority. These were only produced by PW-3 Parkash Chand who was posted as Reader to Deputy Commissioner. Their lordships of the Hon'ble Supreme Court in the case of K.L.Bakolia vrs.
State through Director, Central Bureau of Investigation, reported in ::: Downloaded on - 15/04/2017 19:10:50 :::HCHP 17 (2015) 8 SCC 395, have held that in order to prove case under Section 7 and 13(2) read with Section 13(1) (d), firstly, there must be demand and .
secondly there must be acceptance in the sense that accused received illegal gratification. It has been held as follows:
"8. For coming to the finding of guilt for the offence under Section 13(1)(d) of the Act, firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused received illegal gratification. Courts below recorded concurrent findings that there was evidence on record to substantiate the fact that there was a of demand and the complainant paid the bribe amount to the appellant who has accepted the same. Courts below also recorded concurrent findings that there is no reason to discredit the testimony of the complainant (PW4) and Inspector of Police-A.K. Kapoor (PW7). Defence plea of the accused that the currency notes were put under rt the sofa without his knowledge was rightly rejected by the courts below. Conviction of the appellant under Section 7 andSection 13(2) read with Section 13(1)(d) of the Act is unassailable."
22. In the instance case, the prosecution has failed to prove both the ingredients. There is no occasion for this Court to interfere with the well reasoned judgment of the learned trial Court dated 4.10.2012.
23. Accordingly, there is no merit in this appeal and the same is dismissed.
October 09, 2015, ( Rajiv Sharma ),
(karan) Judge.
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