Delhi District Court
State vs Tassabar Ali Etc on 23 September, 2023
IN THE COURT OF SH. HIMANSHU TANWAR: MM10: SOUTH
EAST DISTRICT: SAKET COURTS: NEW DELHI
FIR No.179/2011
U/s 407/174A IPC
PS Pul Prahlad Pur
State vs. Tassabar Ali
Date of Institution of case 24.07.2012
Judgment Reserved on 10.08.2023
Date of Judgment 23.09.2023
The institution Sr. No. of the case 619029/2016
The date of commission of offence 15.02.2011 and 20.05.2011
Details of complainant Sanjay Mazumdar
Details of accused persons i) Tassabar Ali, s/o Sh.
Musabbar Ali, age 23 years,
r/o village Bhawanipur,
Sehaswan, District Badau,
U.P.
ii) Mohd. Islam (already
convicted).
iii) Accused Mohd. Siraj
(chargesheeted as
absconder)
The offence complained of 407 IPC
The plea of accused person Pleaded not guilty
The final order Accused Tassabar Ali
acquitted
State vs. Tassabar Ali FIR No.179/2011 PS Pul Prahlad Pur Page No.1 of 16
Digitally signed
by HIMANSHU
TANWAR
HIMANSHU
Date:
TANWAR 2023.09.23
16:18:43
+0530
The date of such order 23.09.2023
By this judgment the court shall dispose of the case u/s 407 IPC.
Brief statement of the reasons for the decision:
1) (i) The brief facts of the case of prosecution are that on 15.02.2011
and 20.05.2011, accused Tasabbar Ali was working as driver under the
owner of Trailer Nizamuddin and he was entrusted with the good in the
container for delivery which he failed to deliver in complete quantity by
dishonestly misappropriating the same with his coaccused persons (Mohd.
Sira (PO) and Mohd. Islam (convict) and he thereby committed criminal
breach of trust in respect of same and he thereby committed an offence
punishable u/s 407 IPC.
(ii) On 09.05.2012, accused Mohd. Islam was declared as proclaimed
offender and he thereby committed an offence punishable u/s 174A IPC
and was already convicted by the Ld. Predecessor of this Court on his plea
of guit.
(iii) Further, accused Mohd. Siraj was chargesheeted as absconder
and till date has not been apprehended.
2) After the accused Tassabar Ali appeared in the Court, copy of
chargesheet and other documents were supplied to him. Thereafter, charge
was framed against the accused u/s 407 IPC, to which accused pleaded not
guilty and claimed trial and the matter was listed for prosecution evidence.
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HIMANSHU by HIMANSHU
TANWAR
TANWAR Date: 2023.09.23
16:18:48 +0530
3) (i) In the prosecution evidence PW1 Sh. Sanjay Mazumdar, in his
examination in chief deposed that he was the Manager of M/s Shorewala
Global Industries Pvt. Ltd. Office at SP26, RIICO Industrial Area,
Neemrana, Rajasthan. He was the manufacturer and exporter of printed
towels from India to abroad and the consignee zap UK for the last four
years through clearing and forwarding agent "Clearship Forwarders Pvt.
Ltd. Office at L9, Sunder Singh Building, Mahipalpur, New Delhi. He
stated that they have been sending containers through Shiv Shyam Road
lines.
(ii) PW1 further stated that Shiv Shyam Roadlines is working as
agent and taking lorries from different truck trailor workers and they never
found any shortage/complaint in the entire tenure. It is further stated by
PW1 that Mr. Monto had taken truck trailor from Ms. Nizamuddin owner
and accused Tassabr Ali used to drive the truck trailor as driver of Ms.
Nizamuddin. PW1 stated that on 25.02.2011, truck container bearing No.
GESU2012155 had brought by the accused at his factory and 500 cartoons
of printed towels were loaded in that container duly sealed by the excise
officer and the receipt of the same was handed over to the accused.
Thereafter, on 26.02.2011 at about 10:00 AM, accused reached at ICD
TKD. PW1 stated that on 27.05.2011, truck container bearing no. DCMU
2078622 brought by the accused at his factory and 605 cartoons of printed
towels were loaded in that container which is duly sealed by the excise
officers. On 27.05.2011, the said container moved towards ICD TKD and
on 28.05.2011 he reached at ICD TKD. Thereafter, the said containers
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HIMANSHU by HIMANSHU
TANWAR
TANWAR Date: 2023.09.23
16:18:52 +0530
reached to consignee at UK where they found that container No. GESU
2012155 was containing 249 coartoons out of 500 cartoons and the total
value of lost goos was Rs. 7,70,427/ and they also found the container no.
ECMU2078622 containing only 249 cartoons out of 605 cartoons and the
total value of lost goods were Rs. 12,53,890/. PW1 found that owner of
truck trailor register no. HR 55B 9061 was Nizamuddin and was driven by
the accused. PW1 stated that on 08.07.2011, he made written complaint to
the police regarding the goods theft under the container. Annexure C1
report from the excise authority regarding stuffing of container No. GESU
2012155 was placed on record and the receipt of lorry receipt No. 5275
was place on record. Clearing and forwarding bill No. C513Z00404
DATED 10.03.2011 is placed on record. Shipped on board certificate is
placed on record. During investigation, PW1 produce the invoice and
packing list of SGIPL513/UK 201011 dated m15.02.2011 to the police,
he produce GSP No. 665339 dated 01.03.2011 to the police, he produce the
bill of leading No. CFPU1311100023, he produce concor receipt of
container No. GESU2012155, gate entry and exit copy to the police, copy
of stuffing report mark identification of cartoons loading in container
bearing No. GESU2012155 all of them were handed over to the accused.
PW1 produced the email communication regarding towels between him
and his consignee zap UK.
(iii) Annexure C1 report from the excise authority regarding stuffing
of container No. ECMU 2078622 was placed on record vide as Mark J. The
receipt of lorry receipt No. 5628 is placed on record vide as Mark K.
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by HIMANSHU
HIMANSHU TANWAR
TANWAR Date:
2023.09.23
16:18:58 +0530
Clearing and forwarding bill No. C514Z00053 dated 08.06.2011 is placed
on record vide as Mark L. Shipped on board certificate is placed on record
vide as Mark M. During investigation, he produced the invoice and packing
list of SGIPL616/UK 201011 dated 02.05.2011 to the police, Ex. PW1/E
& F. He also produced the GSP No. 678961 dated 30.05.2011 to the police
Ex. PW1/G. He produced the bill of leading no. CFPU1311100054 dated
06.06.2011 vide mark N. He also produced concor receipt of container No.
ECMU2078622 vide Mark O. He produced gate entry and exit copy to the
police vide as Mark P. He produced the copy of stuffing report mark
identification of cartoons loading in container bearing No. ECMU2078622
vide as Mark O and same was handed over to the accused. He identified
signature of accused because same was put in his presence. He also
produced the email communications regarding towels between him and his
consignee zap UK vide Mark R. During investigation, on 06.08.2011, he
gave reply to IO regarding the notice under Section 90 and 160 CrPC vide
as Ex. PW1/H.
PW1 was duly crossexamined by the Sh. J.S. Maan, Ld. Counsel
for accused.
4) PW2 Ct. Jitender, in his examination in chief u/s 299 CrPC deposed
that on 08.07.2011, he was posted as Constable at PS PPP. On that day, he
had accompanied IO SI Sunil Kumar to ICD Yard where he had inquired
from public regarding the case. They met one person namely Sanjay Nagar
who was the complainant. IO had served him notice under Section 160
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by HIMANSHU
TANWAR
HIMANSHU
Date:
TANWAR 2023.09.23
16:19:03
+0530
CrPC and he was called to the PS for investigation. They also met with
another persons with Ashish who had given notice and called to the PS for
investigation. They also met with Nizamuddin who had given notice and
called to the PS along with relevant documents for investigation.
5) PW3 Ashish Mahajan, in his examination in chief, deposed that he
was working as General Manager at Clear Ship Forwarders Pvt. Ltd., L 9,
Mahipalpur Extension, New Delhi 110037. He had been working in above
said company from May 1994 to 2012. They handling the Export
shipments of M/s Shorewala Global Industries Pvt. Ltd. On 10.07.2011. IO
recorded his statement under Section 161 CrPC. He called Mr. Mintu from
Shivshyam Road line regarding the goods handed over by Manager Mr.
Sanjay Majumdar from M/s Shorewala Global Industries Pvt. Ltd. and
asked him to send one truck. Container was stuffed and sealed in presence
of Central Excise Team. Thereafter, on loaded truck was sent to ICD,
Tughlakabad, Delhi. The container was not opened for examination by
customs and customs had cleared the consignment after verifying the seal
on the containers. After clearance of all the formalities the said container
was handed over to respective shipping line. He provided documents to the
IO regarding the same. He provided the clearance of copy of bill of lading,
invoice packing list and certificate of origin, Ex. PW3/A (Colly).
Thereafter, they came to know that 249 cartons had reached to assignee and
the remaining carton were missing from the container. Thereafter, IO
recorded his statement under Section 161 CrPC.
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by HIMANSHU
TANWAR
HIMANSHU
Date:
TANWAR 2023.09.23
16:19:08
+0530
PW3 was duly cross examined by Sh. J.S. Mann, Ld. Counsel for
accused.
6) PW4 SI Raghunath Prasad in his examination in chief u/s 299 CrPC
for accused Siraj, deposed that on 18.10.2011, he was posted at PS PPP as
SI. On that day, he received the present case file for further investigation
from the record. On 19.10.2011, he alonwith HC Naeem Mohd. and Ct.
Prashant went to Yadav Dhaba, ICD Tughlakabad, New Delhi and at the
instance of the secret informer and arrested the accused Tassabir Ali vide
memo Ex. PW4/A and conducted his personal search vide personal search
memo Ex. PW4/B. Thereafter, he recorded his statement vide memo Ex.
PW4/C. He also prepared the pointing out memo of the place of occurrence
at the instance of the accused Ex. PW4/D. He also prepared the site plan of
the place where accused got down the goods from the container and kept in
godown vide memo Ex. PW4/E. He searched the co accused but could not
find him. He recorded the statement of the witnesses. Witness correctly
identified the witness during examination.
PW4 was duly cross examined by Sh. J.S. Mann, Ld. Counsel for
accused.
7) PW5 SI Sunil in his examination in chief u/s 299 CrPC for accused
Siraj, deposed that on 08.07.2011, he was posted as SI at PS PPP. On that
day, case FIR No. 179/11 was marked to him for investigation. Thereafter,
he served notice under Section 160 CrPC to the complainant and Ashish
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by HIMANSHU
HIMANSHU TANWAR
TANWAR Date:
2023.09.23
16:19:13 +0530
Mahajan (CHA) and the truck driver Nizamuddin. He interrogated them
and searched the accused and the case property but could not find them.
He also served notice to the office of the Superintendent, Central Excise
Range, Alwar, Behror, Rajasthan and got reply of the same Mark X and
also documents. He also got verified the relevant papers from the ICD
Tughlakabad and obtained the report of the same Mark Y. Thereafter, file
was transferred to SI Raghunath and again the file was marked to him.
During investigation, he made application for PE proceedings against
accused Islam and Siraj vide application Ex. PW5/A. On 28.05.2012,
accused Islam @ Pappu surrendered before the court. After the permission
of the court, he arrested the accused Mohd. Islam vide arrest Memo Ex.
PW5/B. Thereafter, he added the appropriate sections in the charge sheet
and got one day PC of the accused and went to the place of occurrence and
prepared pointing out memo at the instance of the accused Ex. PW5/C. He
also prepared the site plan of the place where accused got down the goods
from the container Ex. PW5/D. During investigation, owner of the truck
also handed over the documents of the Shiv Shyam Road Lines Mark X.
He recorded the statement of the witnesses under section 161 CrPC. After
completion of the investigation, he prepared the charge sheet and deposited
the same before the court.
Crossexamination of PW5 was nil. Opportunity given.
8) PW6 Sh. Kartar Singh in his examination in chief u/s 299 CrPC for
accused Siraj, deposed that he has a godown at 83/21, Flat No. 2, Gali No.
State vs. Tassabar Ali FIR No.179/2011 PS Pul Prahlad Pur Page No.8 of 16
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by HIMANSHU
HIMANSHU TANWAR
TANWAR Date: 2023.09.23
16:19:17 +0530
2, Udyog Nagar, Mundka. His wife had let out said godown in February
2011 to Mohd. Siraj and Mohd. Islam. They used his godown for about six
months and took away the kept goods in the above said godown in July
2011 and left it. Thereafter, he let the abovesaid godown to Deepak. IO
interrogated him and recorded his statement.
Crossexamination of PW6 was nil. Opportunity given.
9) PW7 Smt. Rukmani, in her examination in chief u/s 299 CrPC for
accused Siraj, deposed that on she is an illiterate woman and is residing in
House No. 1456A, Mundka Village, Delhi. Her husband had a godown at
Mundka. She do not know the said godown was let out in February 2011.
She also deposed that she do not know about the present case. She had not
given any statement to the police.
PW7 was duly crossexamined by Ld. APP for the state. His cross
examination by accused was nil. Opportunity given.
10) (i) PW8 Sh. K.K. Jain, Assistant Commissioner, GST West, Bhikaji
Cama Place, New Delhi, in his examination u/s 299 CrPC qua accused
Siraj deposed that he was posted as Superintendent in the year 2011 to
2013 in Behror Range, Central Excise. On 26.02.2011, Inspector
Malvender has inspected container of towels no. GESU2012155. The same
container was exported under ARE1 no. 103 dated 26.02.2011. The said
inspection of the container was conducted from 2.00 pm to 05.30 pm. After
that Inspector Malvender put seal of OTSE no. 044547 on the said
State vs. Tassabar Ali FIR No.179/2011 PS Pul Prahlad Pur Page No.9 of 16
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by HIMANSHU
HIMANSHU TANWAR
Date:
TANWAR 2023.09.23
16:19:23
+0530
container.
(ii) On 28.05.2011, Inspector Ramji Swarnkar has inspected
container of towels no. ESMU2078622. The same container was exported
under ARE1 no. 17 dated 28.05.2011. The said inspection of the container
was conducted from 1.00 pm to 04.00 pm. After that Inspector Ramji
Swarnkar put seal of OTSE no. 046499 on the said container.
(iii) The report of the same, was prepared by him on 02.08.2011. All
the document regarding above mentioned proceedings are already on
record along with the report, Ex. PW8/A.
PW8 was duly cross examined by Sh. Rahul, Ld. Counsel for
accused Tassabar Ali.
11) PW9 Sh. Sumant Kumar Behera, Terminal Manager, ICD TKD,
Container Corporation of India, Tughlakabad, New Delhi, in his
examination in chief brought the report of the container number
GESU2012155/20 and the another container number ECMU2078622/20.
The report is produced by him in the court, Ex. PW9/A and the entry
regarding the above said container is mentioned at point A and B.
His cross examination was nil. Opportunity given.
12) PW 10 HC Prashant Kumar Yadav, in his examination u/s 299 CrPC
qua accused Siraj, deposed that on the intervening night of 18/19.10.2011,
he was posted as constable at PS P.P. Pur. On that day, he joined the
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HIMANSHU by HIMANSHU
TANWAR
TANWAR Date: 2023.09.23
16:19:27 +0530
invesitgation along with SI Raghun Nath and HC Naim Ahmad, thereafter
at about 11.00PM, they went to Okhla Tpoint to recover case property
and apprehend accused. In the meanwhile, one secret informer met SI
Raghu Nath who told SI Raghu Nath that accused may be come at Yadav
Hotel ICD at about 12.00PM (night). Thereafter, they went to the Yadav
Hotel ICD at about 12.05AM, accused came there and at the instance of
secret informer, they apprehended him, the name of accused was revealed
as Tassabar Ali. Thereafter, SI Raghu Nath interrogated him and arrested
him vide arrest memo ExPW4/A and conducted his personal vide memo,
ExPW4/B. IO prepared pointing out memo vide memo ExPW4/D. IO
also prepared site plan at the place of occurrence ExPW4/E. Accused was
correctly identified by the witenss. IO recorded his disclosure statement
ExPW4/C. Thereafter, they went to Mundka where accused got down the
goods of the container where they found the godam was locked and no
one was present there. Thereafter, they returned to the PS. IO recorded his
statement.
PW10 was duly crossexamined by Sh.Rahul, Ld. Counsel for
accused.
13) PW11 Sh. Mohd. Nizamuddin, in his examination in chief deposed
that he do not remember the exact date, month and year, however, it was
more than 34 years ago. Accused Tassabar Ali was his driver. He had
taken his car bearing registration number HR559061 to Neem Rana,
Rajasthan. The accused was supposed to get some export items from Neem
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by HIMANSHU
TANWAR
HIMANSHU
Date:
TANWAR 2023.09.23
16:19:31
+0530
Rana to ICD Tughalkabad. The driver/accused had sold 75% of the said
stock which was loaded by Shiv Shyam Road Lines. Accused Tassabar Ali
was correctly identified by the witness. He obtained copy of DL of accused
Tassbar Ali before employing him.
On putting some leading question by the Ld. APP for State, PW11
admitted that that accused used to drive his truck prior to one year 2011
and on 15.02.2011 to 20.05.2011, he was also working as driver of my
truck.
PW11 was duly crossexamined by Sh. Rahul Yadav, Ld. Counsel
for accused Tassabar Ali.
14) Accused in his statement u/s 294 CrPC, stated no objection if the
authors/signatories of following documents are exempted form formal
examination and the said documents are read in evidence:
1.Copy of FIR (without contents) registered in the present case Ex.
A1.
2. DD no. 23A dated 08.07.2011, Ex. A2.
15) Thereafter, prosecution evidence was closed and matter was listed for recording of statement of accused u/s 313 Cr.P.C. In his statement recorded u/s 313 Cr.P.C. accused had stated that he has been falsely implicated in the present case by the police officials and he is innocent and stated that he does not want to lead evidence in his defence. DE was therefore closed.
State vs. Tassabar Ali FIR No.179/2011 PS Pul Prahlad Pur Page No.12 of 16 Digitally signed by HIMANSHU TANWAR HIMANSHU Date: TANWAR 2023.09.23 16:19:35 +0530
16) I have heard the submissions addressed by Ld. APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
17) Ld. Counsel for accused has submitted that the prosecution has failed to prove its case against the accused. On the other hand, Ld. APP has submitted that the prosecution has successfully proved its case beyond reasonable doubt and the accused is liable to convicted.
APPRECIATION OF EVIDENCE
18) Be that as may, it is well settled that the burden of proof to prove all the ingredients of the alleged offence lies on the prosecution and the prosecution has to discharge the said burden beyond reasonable doubt, in order to bring home the guilt of the accused. However, in the present matter, the case of the prosecution is marred with several serious lapses.
19) To establish the offence u/s 407 IPC beyond reasonable doubt, the prosecution is required to prove the following ingredients:
(a) that a carrier was entrusted with a property or dominion over the property; and
(b) that carrier commits criminal breach of trust, i.e.,
i) dishonestly misappropriates that property, or
ii) converts to his own use, or
iii) dishonestly uses that property, or
iv) disposes of that property, or
v) willfully suffers any person so to do.
20) In the case at hand, prosecution through the testimonies of PWs tried to prove that criminal breach of trust has been committed by the State vs. Tassabar Ali FIR No.179/2011 PS Pul Prahlad Pur Page No.13 of 16 Digitally signed by HIMANSHU TANWAR HIMANSHU Date: TANWAR 2023.09.23 16:19:39 +0530 accused Tassabar, as he was entrusted with 500 cartons of printed towels in container bearing number GESU2012155 on 25.02.2011 and also with 605 cartons of printed towels in container bearing number ECMU2078622 on 27.05.2011 to be transported from the factory of complainant at Neemrana, Rajasthan to ICD, Tughlakabad, New Delhi and some of the abovesaid cartons have been dishonestly misappropriated or used or disposed of by the accused, as only 249 cartons out of 500 cartons of printed towels in container bearing number GESU2012155 and 249 cartons out of 605 cartons of printed towels in container bearing number ECMU2078622 were received by the consignee at United Kingdom.
21) (i) Bare perusal of testimony of PW1/Complainant reveals that before handing over the consignment to the accused Tassabar, both the abovementioned containers were duly sealed by the excise officers.
(ii) Further PW3, confirmed the abovediscussed fact that the container was sealed by the excise officers and further stated that the container was not opened for examination by the Customs Officials and same was cleared by them, after verifying the seals on the containers. But, it is not clear as to regarding which container the PW3 had deposed as he had not mentioned the details during his examination.
(iii) The abovediscussed fact with respect to the sealing of the abovementioned containers was also confirmed by PW8, that container number GESU2012155 was sealed by the seal of OTSE no. 044547 and container number ECMU2078622 was sealed by the seal of OTSE no. 046499 by Excise Inspectors.
State vs. Tassabar Ali FIR No.179/2011 PS Pul Prahlad Pur Page No.14 of 16 Digitally signed by HIMANSHU HIMANSHU TANWAR TANWAR Date:
2023.09.23 16:19:43 +0530
(iv) Furthermore, PW9 through the report Ex. PW9/A had stated that seals on the abovementioned containers were found to be perfect at ICD Tughlakabad.
22) Now, the question which arises in the mind of the court is that, if, before entrusting the abovementioned containers to the accused Tassabar, they were sealed by the excise officials and that when the said consignment reached the ICD Gate, the seals were found to be intact and perfect, then, how come some cartons were missing?
23) (i) Unfortunately, the said question had not been answered in the entire chargesheet and further had remained unanswered after the examination of witnesses. It is not the case of the prosecution that seals were broken and containers were again resealed, as the said proposition neither finds any mentioning in the chargesheet nor in the examination of any witness. Further, as discussed above, seals were found to be perfect.
(ii) Now, if this is the case, then how could it be said that accused Tassabar had dishonestly misappropriated or used or disposed of the missing cartons, when he was only entrusted with the custody of above mentioned containers from factory of complainant to ICD Tughlakabad and seals which were put on the abovementioned containers at the starting point were found to be intact at receiving point.
(iii) This does raises a doubt that what if the cartons went missing after the consignments reached ICD. Further, quite interestingly exact 249 cartons in each container were received by the consignee at United State vs. Tassabar Ali FIR No.179/2011 PS Pul Prahlad Pur Page No.15 of 16 Digitally signed HIMANSHU by HIMANSHU TANWAR TANWAR Date: 2023.09.23 16:19:47 +0530 Kingdom, which also raises a suspicion in the mind of the court, with respect to loading of containers at the origin itself and that manipulated entries might have been done. It appears that the accused had been made a scape goat in the present case. The burden to prove the allegations against the accused in a criminal trial throughout the trial is on the prosecution and its never shifts to the accused and the accused is entitled to the benefit of every reasonable doubt in the prosecution's story and such doubts entitles the accused to acquittal.
24) (i) In view of the aforesaid discussion, Court is of the opinion that there are reasonable doubts in the case put forth by the prosecution against accused Tassabar and case cannot in any manner be said to have been proved beyond reasonable doubt. Hence, the accused namely Tassabar is held not guilty and is acquitted of the offence punishable u/s 407 IPC.
(ii) Further, accused Mohd. Islam had already been discharged for offence u/s 407 IPC vide order dated 24.07.2012 and was convicted on his plea of guilt qua offence u/s 174A IPC vide order dated 11.02.2013 by the Ld. Predecessor of this Court.
Further, accused Mohd. Siraj was chargesheeted as absconder.
Digitally signed byANNOUNCED IN OPEN COURT HIMANSHU HIMANSHU
TANWAR
TANWAR
on 23.09.2023 Date: 2023.09.23
16:19:53 +0530
(HIMANSHU TANWAR)
MM10, SOUTHEAST DISTRICT
SAKET: NEW DELHI
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