Delhi District Court
Poonam Thakur vs Sunil Thakur on 26 April, 2023
THE COURT OF SHRI VAIBHAV PRATAP SINGH
MM (NI ACT) DIGITAL COURT - 02, WEST DISTRICT
TIS HAZARI COURTS, DELHI
CC NI Act No. 229/2020
POONAM THAKUR
W/o Mr. Shatrughan
R/o WZ 125/1/3
Naraina Village, S.W. Delhi
Delhi - 110028 . . . COMPLAINANT
VERSUS
SUNIL THAKUR
S/o Mr. Maheshwar Thakur
R/o H.No. 35, Gali No.6
Deeplawli Enclave, Part II
Ismailpur, Faridabad
Haryana - 121003 . . . ACCUSED
Case Number Record (CNR) : DLWT020156942020
Date of Institution : 23.12.2020
Offence Complained of : Section 138 NI Act, 1881
Police Station : Rajouri Garden
Plea of Accused : Not Guilty
Final Decision : Acquittal
Final Arguments Concluded on : 25.04.2023 Digitally signed
by VAIBHAV
VAIBHAV PRATAP
Date of Decision : 26.04.2023 SINGH
SINGH
PRATAP Date:
2023.04.26
13:39:50
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CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 1 of 17
JUDGMENT
1. This is a criminal complaint case filed under Section 200 of the Criminal Procedure Code, 1973 (CrPC) read with Section 142 of the Negotiable Instruments Act, 1881 (NI Act) alleging the offence under Section 138 of the NI Act regarding dishonour of cheques.
FACTS IN THE COMPLAINT
2. Brief facts as alleged in the complaint are that the Complainant is a housewife who approached the Accused in connection with purchasing a house in a housing project, in the selling department of which the Accused was employed. Upon coming to know that the Accused is her distant relative, they developed friendly relations and the Accused used to take multiple small loans from the Complainant and used to pay them back on time, thus gaining her trust. In such continuity, the Accused took the friendly loan of INR 6,00,000/- (Rupees Six Lakhs Only) which forms the subject matter of the present proceedings. It is stated that the loan was taken in December, 2018 and was to be returned within six months. To secure the loan, the Accused gave a cheque bearing no. 000190 dated 06.10.2020 drawn on HDFC Bank for INR 4,00,000/- (Rupees Four Lakhs Only), and promised that another cheque for the balance amount will be given soon. It is averred that despite extending the date of repayment multiple times, the Accused failed to repay the loan and the Complainant presented the cheque given to her, which got returned dishonoured on 07.10.2020 due to insufficient funds. Despite Digitally signed by VAIBHAV VAIBHAV PRATAP SINGH PRATAP Date:
SINGH 2023.04.26 13:39:57 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 2 of 17 sending the statutory notice dated 20.10.2020, no payment was received and thus the present proceedings were initiated.
COGNISANCE AND NOTICE U/S 251 CrPC
3. On the basis of pre-summoning evidence by way of affidavit, the Accused herein was summoned by my learned Predecessor on 14.01.2021 and the Accused entered appearance on 31.01.2022. Thereafter, Notice of Accusation under Section 251 CrPC was framed on him on 16.02.2022 wherein he pleaded not guilty and claimed trial. Accused admitted his signatures on the cheque though he denied filling up the rest of the particulars. He further admitted having received the statutory notice and disclosed his defence.
4. In his defence, it was stated that that Accused took a loan of INR 4,00,000/- (Rupees Four Lakhs Only) from the Complainant in cash in 2017 with interest @ 3% per month thereon and gave the blank signed security cheque in question. It was further stated that the Accused repaid the same by depositing INR 3,00,000/- (Rupees Three Lakhs Only) in the bank account of the Complainant on 18.06.2019 and by giving her the balance INR 1,00,000/- (Rupees One Lakh) in cash on 20.07.2019. The Complainant used to collect INR 12,000/- (Rupees Twelve Thousand) per month from his house toward the interest component and after the loan was repaid, the Complainant kept avoiding returning the security cheque of the Accused and he lodged a complaint regarding the same. In Digitally signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH Date:
SINGH 2023.04.26
13:40:01
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admission/denial under Section 294 CrPC, Accused admitted the return memo as well as postal receipt.
5. Seeing the plea of defence, the trial was converted to a summons case and the Accused was allowed to cross-examine the Complainant.
COMPLAINANT'S EVIDENCE
6. Complainant lead oral as well as documentary evidence for proving her case beyond reasonable doubt. Oral evidence was lead by way of affidavit wherein the affidavit for pre-summoning evidence was tendered and adopted and was exhibited as Ex.CW-1/1. For documentary evidence, the following documents were relied upon:
(1) Mark 'E' CD of voice recording (2) Ex.CW-1/A Impugned Cheque dated 06.10.2020 (3) Ex.CW-1/B Return Memo dated 07.10.2020 (4) Ex.CW-1/C Legal Notice dated 20.10.2020 (5) Ex.CW-1/D Postal Receipt dated 04.11.2020 (6) Ex.CW-1/E Tracking Report dated 12.11.2020 STATEMENT OF ACCUSED U/S 313 CrPC
7. There being no other witness for the Complainant, her evidence was closed. It is at this stage that the case was assigned to me, having taken over the present Court from my learned Predecessor. To give a chance to the Accused to personally explain the circumstances appearing in VAIBHAV Digitally by VAIBHAV signed PRATAP Date: 2023.04.26 PRATAP SINGH SINGH 13:40:05 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 4 of 17 evidence against him, his statement was recorded without oath under Section 313 CrPC read with Section 281 CrPC on 28.09.2022. Therein the Accused reiterated his defence as disclosed earlier but added that he had written the name of the payee in the impugned cheque and that the repayment of INR 1,00,000/- (Rupees One Lakh) in cash to the Complainant on 20.07.2019 was witnessed by his driver Mr. Surender. It was stated that he is not aware of the contents of the CD i.e. Mark 'E'.
DEFENCE EVIDENCE
8. In Defence Evidence, the Accused examined himself as DW-1 after moving a written application under Section 315 CrPC and also his driver Mr. Surender as DW-2. Both were cross-examined by the Complainant.
9. As DW-1, the Accused relied on the following documents:
(1) Ex.DW-1/1 Aadhaar Card of Accused
(2) Ex.DW-1/2 Bank Deposit Slip
(3) Ex.DW-1/3 Online Complaint to the CM of Haryana
(4) Ex.DW-1/4 Physical Complaint to the CM of Haryana
(5) Ex.DW-1/5 Postal Receipt of the Complaint to Chief Minister
(6) Ex.DW-1/6 Legal Notice dated 17.10.2020 sent by Accused to
Complainant
(7) Ex.DW-1/7 Reply to Complainant's Statutory Notice
Digitally signed
VAIBHAV by VAIBHAV
PRATAP SINGH
PRATAP Date:
SINGH 2023.04.26
13:40:09 +0530
CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 5 of 17
FINAL ARGUMENTS
10.The case was then listed for final arguments which were heard on multiple dates. Both the parties have filed written submissions.
11.Complainant has relied on the following judgments to inter alia argue that ITRs need not be filed by a complainant if the loan is admitted by the Accused and that the loan transaction need not be proved to the hilt, by virtue of the statutory presumptions in NI Act:
i. Judgment dated 11.02.2020 of the Hon'ble High Court of Delhi in Crl. Rev. P. 1246/2019 titled "Guddo Devi v. Bhupender Kumar"; ii. Ragini Gupta v. Piyush Dutt Sharma, 2019 SCC OnLine MP 4372;
iii. Rohitbhai Jivanlal Patel v. State of Gujarat & Anr. (2019) 18 SCC 106 iv. Kishan Rao v. Shankargouda, (2018) 8 SCC 165 v. Basalingappa v. Mudibasappa, (2019) 5 SCC 418
12.Accused has relied on Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel, (2023) 1 SCC 578 to argue that if part liability is discharged before presentation of the cheque, the offence will not be made out unless an endorsement was made to that effect on the cheque.
13.I have heard the parties at length and have gone through the record and considered the arguments and materials relied upon and pressed.
14.The ingredients that must all be cumulatively met to constitute the offence under Section 138 NI Act are:
VAIBHAV Digitally signed by VAIBHAV PRATAP PRATAP Date: 2023.04.26 SINGH SINGH 13:40:13 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 6 of 17 14.1.Cheque being drawn by a person on an account being maintained by him for payment of money, which is presented within its validity period;
14.2.Cheque being drawn for discharging a legally enforceable debt or liability;
14.3.Cheque being returned dishonoured by the bank due to insufficient funds, or a host of other reasons by virtue of Laxmi Dyechem v. State of Gujarat (2012) 133 SCC 375; 14.4.A demand for the said amount of money being made in writing within one month of the receipt of information of dishonour; and 14.5.Drawer failing to make the payment of the said amount of money within 15 days of receiving the notice of demand.
15.The Complainant is to prove her case beyond reasonable doubt while the Accused need only prove his defence to the standard of preponderance of probabilities. Section 139 NI Act and Section 118 NI Act read together mandate that upon the establishment of foundational facts, the Court shall raise a presumption that the negotiable instrument passed for consideration and the cheque was issued for discharging a legally enforceable debt. The presumption is rebuttable and the reverse onus falls on the Accused to establish a probable defence which creates a doubt as to the existence of a legally enforceable debt or liability. [See Rangappa v. Sri Mohan, (2010) 11 SCC 441 and Hiten P. Dalal v.
Bratindranath Banerjee, (2001) 6 SCC 16.]
16.The foundational facts that lead to raising of the above-mentioned presumptions are the execution and issuance of the impugned cheque. The Accused in the present case has admitted the cheque in question and his signatures on it and thus this Court is now bound to presume that the Digitally signed VAIBHAV by VAIBHAV PRATAP SINGH PRATAP Date:
SINGH 2023.04.26 13:40:17 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 7 of 17 impugned negotiable instrument passed for consideration and was issued to discharge a legally enforceable debt. In addition to this, the return memo as well as the receipt of the statutory notice within time are also admitted. Furthermore, the fact of non-payment, as asked for in the statutory notice of demand, within 15 days of its receipt is also not a disputed fact. Thus, all the ingredients of Section 138 NI Act, as noted above, are undisputed except the existence of a legally enforceable debt, which is presumed. To rebut the same, Accused has chosen to cross- examine the Complainant to poke holes in her case as well as examine two witnesses in his defence including himself.
POINT FOR DETERMINATION
17.The only point for determination now is to examine the case of the Accused to see whether a probable defence has been raised by which the existence of a legally enforceable debt or liability has been made doubtful from the standard of preponderance of probabilities. Therefore, I shall restrict my delineation to the said ingredient of Section 138 NI Act exclusively, with the other ingredients not having been pressed, and rightly so.
APPRECIATION OF EVIDENCE
18. Boiled down, the defence of the Accused is that he only took a loan of INR 4,00,000/- (Rupees Four Lakhs Only) from the Complainant in 2017 and the same has been repaid by him partly by depositing INR 3,00,000/-
Digitally signedVAIBHAV by VAIBHAV PRATAP SINGH PRATAP Date:
SINGH 2023.04.26 13:40:22 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 8 of 17 (Rupees Three Lakhs Only) in the bank account of the Complainant through his driver Surender (DW-2) by Bank Deposit Slip (Ex.DW-1/2) on 18.06.2019, and partly by paying her the balance amount of INR 1,00,000/- (Rupees One Lakh) in cash on 20.07.2019.
19.CW-1 in her cross-examination stated that she does not remember how many times she loaned money to the Accused or what is the total amount of money that she has lent to the Accused since she came in contact with him, and volunteered that she does remember that INR 6,00,000/- (Rupees Six Lakhs Only) remains unpaid. It is worthy of noting that the CW-1 did not state that though she does not remember the previous loan amounts but the loan amount she does remember is of INR 6,00,000/- (Rupees Six Lakhs Only). What her statement reads as is that though she does not remember the total amount lent over the years, only Six Lakhs is left unpaid, implying that the impugned loan was not advanced separately but that the figure of unpaid INR 6,00,000/- (Rupees Six Lakhs Only) comes from some sort of a running account, where different loans are given and different repayments are received, without any strict apportionment or without any strict system where only after one loan is fully repaid, another is granted. This will gain relevance in the subsequent paragraphs and will be adverted to again.
20.CW-1 further deposed that though she used to maintain a record of her borrowing and lending with the Accused, she used to destroy it as soon as the particular loan was repaid. She further stated that she is not an income tax payee as she has no income being a housewife, and that the VAIBHAV Digitally by VAIBHAV signed PRATAP PRATAP SINGH Date: 2023.04.26 SINGH 13:40:26 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 9 of 17 loan amount advanced was not taken from anyone but was given out of her savings which she accumulated from the money her children used to give to her for her expenses.
21.DW-1 has deposed in line with his defence as noted in paragraph 17 above. It was further stated that the Complainant is an illegal money lender who, in connivance with her son, is trying to extort the Accused. It was submitted that complaints regarding the same were also made to the Chief Minster of Haryana (Ex.DW-1/3 and Ex.DW-1/4) which also find a mention of DW-2 herein having deposited INR 3,00,000/- (Rupees Three Lakhs Only) in the bank account of the Complainant on behalf of the Accused by Bank Deposit Slip (Ex.DW-1/2) on 18.06.2019.
22. DW-1 has further stated that he issued a legal notice dated 17.10.2020 (Ex.DW-1/6) to the Complainant herein asking for his security cheque back but the same was not heeded. The reply to the Complainant's statutory notice (Ex.DW-1/7) was also placed on record, which contains the same averments and statements as his own legal notice dated 17.10.2020 (Ex.DW-1/6).
23.DW-2 Surender deposed that he is the driver of the Accused and the Accused took the loan of INR 4,00,000/- (Rupees Four Lakhs Only) in his presence and that the Accused later told him that the loan has been repaid. He further deposed that he deposited INR 3,00,000/- (Rupees Three Lakhs Only) in the bank account of the Complainant on 18.06.2019 on behalf of the Accused by Bank Deposit Slip (Ex.DW-1/2) Digitally signed VAIBHAV by VAIBHAV PRATAP SINGH PRATAP Date:
2023.04.26 SINGH 13:40:30 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 10 of 17 as part repayment of the loan. He further stated that the Complainant told him that the loan in question stands repaid and the cheque given as security was with her son Kanhaiya Thakur which shall be returned.
24.In the cross-examination of DW-2, suggestions have been put to him about him not being the driver of the Accused and about his identity but the same have been denied. No suggestion has been put regarding the fact that it is DW-2 who deposited the admitted amount of INR 3,00,000/- (Rupees Three Lakhs Only) in the bank account of the Complainant on 18.06.2019 on behalf of the Accused by Bank Deposit Slip (Ex.DW-1/2), which fact finds mention in the examination of DW-1 as well as DW-2. Thus, the complainant has not disputed that DW-2 Surender got the amount deposited in her bank account. Suggestions and dispute as to whether or not he is a driver by profession and the argument that he has not filed any document to show that he is the driver of the Accused do not hold sway. The profession or vocation of DW-2 is hardly a fact in issue and what is relevant is that he acted on behalf of the Accused, which has not been disputed. It has further not been disputed by giving any suggestion to DW-2 that the Complainant told him that the cheque is with her son and will be returned or that he was present when the loan of INR 4,00,000/- (Rupees Three Lakhs Only) was given to the Accused in cash. Once the Complainant has not objected to DW-2 depositing the money in her account by putting a suggestion to that effect, Complainant taking objection to him really being a driver or not are of no consequence. Digitally signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH SINGH Date:
2023.04.26 13:40:34 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 11 of 17
25.The statement of DW-2 that he was told by the Accused that the loan stands repaid has been objected to by the Complainant as being hearsay.
This objection of the Complainant is sustained and said statement is eschewed from consideration as DW-2 cannot depose as to a fact of which he has no personal knowledge.
26.Taking the case of the Complainant as has emerged from her cross- examination, it comes to light that she is a housewife who is not gainfully employed and has been giving loans left, right, and centre to the Accused, whom she only met in 2011 professionally, and has been destroying the records of the repayment, for reasons best known to her. According to her, the loans were advanced from petty savings she made from the money her children used to give to her for her "personal expenses". Nothing has been placed on record to evidence the loan transaction as claimed or to bring on record any quantified amount of the expenses the Complainant had or how much money she used to get from her children for personal expenses, which, assuming the Complainant did not sacrifice her personal needs only to be giving multiple loans to the Accused since 2010, left so much money aside that loans of upward of INR 10,00,000/- (Rupees Ten Lakhs Only) have been given just to the Accused, in addition to more money lent to one Manoj Tiwari.
27.The phrase "preponderance of probabilities" in the case of Charles R. Cooper v. F.W. Slade, (1857-59) 6 HLC 746 was held to mean "more probable and rational view of the case" and this definition has stood the test of time, having been quoted with approval several times by Indian Digitally signed VAIBHAV by VAIBHAV PRATAP SINGH PRATAP Date:
SINGH 2023.04.26 13:40:38 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 12 of 17 Courts, including as recently as in 2022 in Ramanand v. State of U.P., 2022 SCC OnLine SC 1396 para 100.
28.The version of the Accused seems like a more probable view of the case compared to that of the Complainant's. The above facts read together, as brought out by the Accused from the case set up by the Complainant herself including her cross-examination as well as by bringing his own evidence on record through DW-1 and DW-2, do commend to me that a probable defence has been raised in so much as the loan taken was only of INR 4,00,000/- (Rupees Four Lakhs Only) and not INR 6,00,000/- (Rupees Six Lakhs Only) and the same stands repaid.
29.A presumption in itself is not evidence but only makes a prima facie case for a party for whose benefit it exists. Accused in this case has lead evidence to reasonably show that the true facts are not as presumed.
30.Complainant has admitted having received Rs. 3,00,000/- (Rupees Three Lakhs Only) in 2019, as the same was backed by documentary evidence which could not be refuted, only to make a bald averment that it pertained to repayment of previous loans, the record of which is conveniently stated to have been destroyed. The fact of receiving the said payment has been concealed by the Complainant even though the previous loan transactions find a cursory mention. I fail to understand why the Complainant would completely efface the record she herself used to maintain of payments received, specially in the context of a person with whom she has ongoing borrower-lender relations spanning Digitally signed VAIBHAV by VAIBHAV PRATAP SINGH PRATAP Date:
SINGH 2023.04.26 13:40:42 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 13 of 17 over years. It leads this Court to believe that the deposition of INR 3,00,000/- (Rupees Three Lakhs Only) made in 2019 by the Accused in the bank account of the Complainant was toward repayment of the loan in question.
31.The judgment relied on by the Accused applies to the present case on all fours. In Dashrathbhai Trikambhai Patel (supra), it was held that if the drawer pays the whole or even a part of the sum of the amount of the impugned cheque between the period the cheque is drawn and when it is presented for encashment, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque. The offence under section 138 NI Act would not be made out in such a situation as the cheque amount would not fall within the meaning of "amount of money" as used in the provisio to Section 138 NI Act. In the present case, even if the case of the Complainant is believed to the extent that the loan transaction was actually of 6,00,000/- (Rupees Six Lakhs Only), even then the Complainant has not proved beyond reasonable doubt that the payment deposited in her account by the Accused through his driver was not toward repayment of the loan taken, especially when the Complainant herself has stated that she did not advance the money on interest. Thus, when the Accused made the part-payment of the debt in 2019, the amount of INR 6,00,000/- (Rupees Six Lakhs Only) no longer remained "legally enforceable debt" on the date the cheque was presented without any endorsement having been made on the cheque in terms of Section 56 NI Act. Thus, the Complainant has failed to prove Digitally signed by VAIBHAV VAIBHAV PRATAP SINGH PRATAP Date:
SINGH 2023.04.26 13:40:46 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 14 of 17 the very first ingredient of the offence under Section 138 NI Act and the prosecution must fail on this ground alone.
32.The judgments relied on by the Complainant in Guddo Devi v. Bhupender Kumar (supra), Ragini Gupta v. Piyush Dutt Sharma (supra), and Rohitbhai Jivanlal Patel v. State of Gujarat & Anr. (supra) are on the aspect of relevance of filing of ITRs in cheque bounce cases, which is not in issue in the present case as the Accused has not questioned the source of funds of the Complainant.
33.So far as the Complainant has relied on Kishan Rao v. Shankargouda (supra) and Basalingappa v. Mudibasappa (supra) to show that the Complainant need not prove the debt to the hilt as the same would render the presumption under section 139 NI Act otiose, the judgments need to be read in full. The judgments, as is settled law, hold that in a cheque bounce case, the Court must mandatorily raise the presumption given under Section 139 NI Act in favour of the Complainant and in the absence of the Accused establishing a probably defence, the Court ought not to require the Complainant to prove her case. In Kishan Rao v. Shankargouda (supra), the defence raised by the Accused was not found to be plausible and he did not even step in the witness box, which is not the case here. Neither judgment holds that once a probable defence is raised, and the onus shifts back to the Complainant, she need not prove her case beyond all reasonable doubt. The burden to bring home an offence beyond reasonable doubt is one that never shifts from the prosecution even though the onus of proving certain facts may shift or be VAIBHAV Digitally by VAIBHAV signed PRATAP PRATAP SINGH Date: 2023.04.26 SINGH 13:40:49 +0530 CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 15 of 17 presumed in certain statutes, as in the present case. Thus, the judgments provide no succour to the Complainant and in fact enure to the benefit of the Accused.
34.At this stage, it is pertinent to note that there is a CD on record, which has been marked as Mark 'E' during CW-1's evidence. Nothing from the record reflects that it was ever played in Court during Complainant's evidence or put to the Accused at all. Learned Counsel for Accused states that it was never played and Learned Counsel for Complainant, who argued the case finally, was engaged at the stage of Defence Evidence. No transcript of the contents of the CD has been filed and the CD or its contents were never even referred to during the final arguments, so it can be said that it has not been pressed, though the mere fact of the CD existing finds a cursory mention in the written submissions filed by the Complainant subsequently. No certificate under Section 65-B of the Indian Evidence Act, 1872 has been exhibited or relied on by CW-1 in support of the CD, let alone it being proved in accordance with law, the CD being secondary evidence. For all these reasons, the CD (Mark 'E') is not being relied on by me.
35.In the above conspectus, Accused has successfully raised a probable defence, thus shifting the onus back on the Complainant to prove her case beyond reasonable doubt, in which she has failed. The legally enforceable debt, which is the only ingredient of Section 138 NI Act up for consideration as noted in para 17 above, not having been established, Digitally signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH Date:
SINGH 2023.04.26
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the offence under Section 138 NI Act is not made out and the prosecution fails.
36.Accused Sunil Thakur is acquitted of the offence under Section 138 NI Act.
Announced by me in the open Court today on 26.04.2023.
Digitally signedVAIBHAV by VAIBHAV PRATAP SINGH PRATAP Date:
SINGH 2023.04.26 13:40:56 +0530 (VAIBHAV PRATAP SINGH) MM (NI Act) Digital Court - 02, West Tis Hazari Courts, Delhi CC NI Act No. 229/2020 Poonam Thakur v. Sunil Thakur Page 17 of 17