Karnataka High Court
Suresh S/O. Kalasappa Kale vs The State Of Karnataka on 7 September, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 07TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.101118 OF 2017
BETWEEN:
1. SURESH S/O. KALASAPPA KALE
AGE:58 YEARS, OCC:BUSINESS
R/O. SHIRAGUPPI NOW AT JAMKHANDI,
GIRISH NAGAR, BAGALKOT.
2. SRI. SAHEBLAL S/O. AMINSAB NADAF
AGE:MAJOR, OCC:BUSINESS
R/O JAMKHANDI, DIST:BAGALKOT.
3. SRI. S. V. KAGGOD
AGE:MAJOR, OCC:ADVOCATE
R/O:ASANGI, TQ:JAMKHANDI
DIST:BAGALKOT.
4. RAMANGOUDA S/O. RUDRAPPAGOUDA PATIL
AGE:MAJOR, OCC:BUSINESS
TQ:JAMKHANDI, DIST:BAGALKOT.
5. SHRI SHIVANGOUDA S/O. RAMANGOUDA PATIL
AGE:MAJOR, OCC:BUSINESS,
TQ: HIPPARAGI, DIST:BAGALKOT.
... PETITIONERS
(BY SRI.V. M. SHEELVANT, ADVOCATE)
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A N D:
1. THE STATE OF KARNATAKA
THROUGH PSI, JAMKHANDI TOWN,
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
2. JAYAWANT S/O. KALASAPPA KALE
AGE:65 YEARS, R/O. NO.2, KHB COLONY
RAMATHEERTH ROAD, JAMKHANDI,
BAGALKOT.
... RESPONDENTS
(BY SRI. PRAVEEN K. UPPAR, HCGP FOR R1)
(BY SRI. HARSH DESAI, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE SEEKING TO QUASH THE
PROCEEDINGS IN C.C.NO.23 OF 2016 (P.C.NO. 14/2012)
PENDING ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND
JMFC JAMAKHANDI FOR THE OFFENCE PUNISHABLE UNDER
SECTION 467, 468, 471, 474, 120B READ WITH SECTION 149
INDIAN PENAL CODE AS AGAINST THE PETITIONERS.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT, MADE THE FOLLOWING:
ORDER
This petition is filed by petitioners/accused No.1,2 and 4 to 6 filed under Section 482 of the Criminal Procedure Code praying this Court to quash the proceedings in C.C.No.23/2016 (P.C.No.14/2012) pending on the file of the learned Prl.Senior Civil Judge and J.M.F.C,Jamkhandi for the offences punishable under :3: Sections 467, 468, 471, 474, 120B read with Section 149 of the Indian Penal Code as against the petitioners herein.
2. Brief facts of the prosecution case as narrated in the private complaint filed by the complainant one Jayawant S/o Kalasappa Kale. The complainant who is the natural brother of the accused No.1 Mr.Suresh, so also the deceased Susheelabai, according to the complainant himself and his sister Susheelabai were running a partnership business under the name and style of M/s.Prashant Hotel in property bearing CTS No.5325 which was purchased by Smt. Susheelabai on 09.02.1983. The complainant and Smt.Susheelabai in their capacity as partners of the aforesaid firm raised a loan of Rs.14,00,000/- from the Karnataka State Financial Corporation, for the purpose of construction of commercial complex on the property CTS No.5325, which was given a security for the said loan. As per the further averments in the complaint, complainant has cleared the said loan and obtained no-due certificate from Karnataka State Financial :4: Corporation on 07.08.2002 and property in CTS No.5325 which was reconveyed in favour of the firm has been subsequently registered in his name and he has been collecting rent from the shops and residential units in the said complex. Smt.Susheelabai owned lands bearing R.S.No.64 and 6/4 measuring 24 acres, 38 guntas and 31 guntas respectively in Shiraguppi village and plot bearing No.24 in R.S.No.48 of Jamkhandi. Smt.Susheelabai had suffered paralysis on the right side of her body and complainant was taking care of her and was looking after the affairs of the partnership firm as well as the property of the Smt.Susheelabai. Smt.Susheelabai died on 13.08.2011, while under going treatment at S.D.M. Medical college and hospital Dharwad. As per the contentions of the complainant she died intestate. The further averments in the private complaint goes to show that complainant learnt that two applications were filed seeking mutation of the aforesaid properties, one by accused No.1 in C.C.No.23/2016, Mr.Suresh, who relied upon the Will said to have been executed by :5: Smt.Susheelabai on 16.04.2008 and registered on 24.11.2011 and another by Smt.Rekha who is the accused in another private complaint No.13/2012 by relying upon the Will dated 24.03.2008 and another rectification Will dated 20.07.2009. Looking to the materials it is come on the record that said Smt.Rekha and other accused preferred Criminal Revision Petition No.46/2016 before the Court of Sessions Judge Bagalkot seeking quashing of the order dated 26.05.2016 passed in P.C.No.13/2012 by learned JMFC Jamkhandi. According to complaint accused No.1 colluded with other accused persons No.2 to 6 in creating the Will dated 16.04.2008 by forging the signature of deceased Smt.Susheelabai on faith bond paper, subsequently registered the same before the sub-registrar Jamkhandi on 24.11.2011. Complainant said to have secured the expert opinion by sending the alleged Will along with admitted signatures of Smt.Susheelabai to the Truth Lab Foundation, which has reported that signature in the Will not tallied with the admitted signatures of Smt.Susheelabai. The further averments also :6: go to show, the materials relied upon by the complainant, that police have filed the 'B' report in P.C.No.14/2012. Complainant has filed protest petition to the 'B' report, Court below on consideration of the documents and the statement of complainant by order dated 26.05.2016 has observed that there is a prima facie case made out by the complainant against accused No.1 to 6 for the alleged offences and ordered for registration of the case. Subsequently the Court below, on the basis of the charge sheet filed by the police by the order dated 15.06.2016 taken cognizance of the offences punishable under Section 467, 468, 471, 474, 120B read with Section 149 of the Indian Penal Code against the accused ordering to register the Criminal case and also ordering to issue the summons. Being aggrieved by the same the petitioners/accused are before this Court in this Criminal petition.
3. Heard the arguments of the learned counsel appearing for the petitioners/accused, so also the arguments of the learned counsel appearing for the :7: respondent No.2/complainant and the arguments of the learned HCGP who representing the respondent/State.
4. Learned counsel for the petitioners during the course of his argument made the submission, that even if the entire material on the side of the complainant are taken into consideration, there is no prima facie case made out as against any of the petitioners herein. Counsel submitted that the only material relied upon by the complainant to agitate before the Court, that the petitioners have committed the alleged offences forging the signature of the deceased Smt. Susheelabai is concerned, the complainant relied upon their report of the Truth Lab Foundation. If the said report is ignored then there is no material on the side of the complainant. So far as the Truth Lab report is concerned, learned counsel for the petitioners made the submission, that the report itself is very clear, the Truth Lab considered xerox copies of the Will. Hence, it is the submission of the learned counsel for the petitioners/accused unless and until the originals are :8: produced, the signature on the xerox copy cannot be fit for comparison by the said Truth Lab. Counsel submitted that, even while sending the documents for experts opinion, the admitted signatures as well as the questioned signature ought to be referred, but here in this case it is only the decision of the complainant that he referred the documents for experts opinion and the expert gave the opinion that the admitted signatures of Smt.Susheelabai or not, the same signatures found on the disputed documents. Hence, the counsel submitted the said report cannot be looked into by the Court in view of these infirmities. It is also his submission, referring to the 'B' summary report filed by the police, that Police were not able to get the documents, so also the signature of Smt.Susheelabai to come to the conclusion, whether really Smt.Susheelabai has executed the alleged Will or not. Learned counsel submitted, there is also Civil Suit pending before the Court and when that is so, the question of again initiating the criminal proceedings does not arise at all. He made the submission that all these aspects of the matter were not at :9: all properly considered and appreciated by the Court below, while ordering for registering the criminal case and for the issue of the process as against the petitioners herein. Learned counsel made the submission, that when the matter is already seized by the Civil Court, wherein the similar allegations are made, there is no necessity for initiating the criminal case. Hence he made the submission, except the oral say of the complainant, there is no other supporting material for the said averments and allegations made in the complaint. Hence, he submitted that there is abuse of the process of the court in initiating the criminal proceedings against the petitioner. Hence he submitted to allow the petition and to quash the proceedings initiated as against the petitioners herein. Learned counsel also made the submission, that while taking cognizance and issuing the process as against the petitioners herein, there is no specific mention by the learned JMFC court for which of the offences cognizance is taken and process is ordered to be made. In support of his contention learned counsel for the petitioners relied upon : 10 : the decision reported in (2008) 12 SCC 531 in the case of Gorige Pentaiah v/s State of Andhra Pradesh and others and another decision ILR 2002 KAR 1665 in the case of Veerappa and others v/s Bhimareddappa.
5. Per contra the learned counsel appearing for the respondent No.2/complainant made the submission, that the civil suit is pending before the court is not ground to quash the proceedings initiated on the criminal side. Learned counsel made the submission that it is the established proposition of law that there is no bar for initiation of the criminal proceedings if the factual aspects are making out the case that there is offence committed even under the provisions of the criminal law. He also made the submission, that there are serious allegations made in the complaint by the complainant that there is a forgery of the signature of the Smt.Susheelabai. It is also his submission, that admittedly even according to the petitioner/accused No.1 the alleged Will though said to have been executed by Smt.Susheelsbai in the year 2008, : 11 : till her death it was not presented before the Sub-Registrar for registration and it is only after her death in the year 2011 the said Will is said to have been presented before the Sub-Registrar. In this connection the learned counsel made the submission, that there are serious allegations in the private complaint that accused No.2 to 6 supported accused No.1 colluded with him in creating such a Will and even submitting before the Sub-Registrar, that it is said to have been executed by deceased Smt.Susheelabai. Hence, he contended that, when such serious allegations are made it is for the Court to enquire into the matter and to dispose of the case on merits. He also submitted, that it is not the only Will claimed by accused No.1 Suresh, the brother of the deceased Smt.Susheelabai, but even one Rekha is also claiming that, she is also legatee under the another Will, who claims to be the daughter of one Gopal, who is also the brother of the deceased Smt.Susheelabai. Hence, the counsel submitted this itself is one of the ground goes to show prima facie that the alleged Wills set up by both the persons are fabricated and created : 12 : documents. Learned counsel further made the submission, that after filing the complaint, petitioner/accused No.1 filed the civil suit before the Court in O.S.No.5/2014, which is filed after more than one year of filing the complaint filed by the complainant of this case. He also made the submission, with regard to the said suit is concerned, even in the said suit the petitioner/accused No.1 has not at all claimed the property on the basis of the Will he has filed the suit seeking partition of his one half share in the suit properties. Learned counsel also draw the attention of the Court to paragraph No.7 of the plaint and made the submission that with regard to the Will relied upon by defendant No.2, it is contended that the said Will is not at all executed by Smt.Susheelabai. Therefore, even there is dispute in between petitioner/accused No.1 and Rekha with regard to the Will alleged to have been executed by Smt.Susheelabai. Counsel made the submission that up till now the original Will is not at all produced by the petitioner/accused No.1 before the Court. Hence, he submitted that looking to these aspects of the matter, : 13 : there is a prima facie case made out by the complainant. It is also the submission of the learned counsel for respondent No.2/complainant that even earlier also the petitioner approached this Court, seeking quashing of the proceedings and this Court remitted the matter to the concerned JMFC Court to record the sworn statement of complainant and to proceed in the matter in accordance with law. Hence, he submitted after matter was remanded back to the concerned JMFC Court, the sworn statement of the complainant also recorded and the learned Magistrate after following the due procedure ultimately took cognizance order for registering the criminal case and also for issuance of the summons as against the present petitioners. The learned counsel for the respondent No.2/complainant also made the submission, that looking to the impugned order which is challenged for taking cognizance and issuance of the process by the concerned JMFC Court, the Sections for which the cognizance is taken are also specifically mentioned, therefore the contention of the other side is not correct. Hence, he submitted that : 14 : there is no merit in the petition and it is not the case for invoking Section 482 for quashing of the proceedings. Hence, the learned counsel submitted to dismiss the petition. In support of his contention learned counsel for the respondent No.2/complainant also relied upon the decisions of the Ho'ble Apex Court which are filed along with memo they are as under;-
1. (2002) 1 SCC 555 in the case Kamaladevi Agarwal v/s State of West Bengal and others.
2. (2014) 3 SCC 389 Vijayander Kumar and others v/s State of Rajasthan and another
3. (2014) 10 SCC 616 in N Soundaram v/s P.K. Pounraj and another.
6. Learned HCGP representing the respondent/State also made the submission that looking to the averments made in the private complaint and the materials produced by the complainant his sworn statement there is a prima facie case regarding the allegations of forgery of the signature of Susheelabai. Hence, the learned HCGP also made the submission that the learned JMFC Court properly appreciated the materials : 15 : and rightly comes to the conclusion that there is prima facie case made out by the complainant to proceed with the matter. Hence, he also made the submission that it is not a case for quashing of proceedings.
7. I have perused the grounds urged in the petition, contents of the private complaint filed by respondent No.2, so also the order passed by the learned JMFC Court, taking cognizance of the offence and issuance of the process. Regarding the contention of the petitioners herein that there is no prima facie case for the alleged offences and the civil suit is also already pending, wherein all the contentions raised in the complaint are going to be discussed by the Civil Court. Therefore, there is no necessity of filing the criminal case is concerned, firstly there is no legal bar as such under the law. If the allegations made are making out a prima facie case parallel proceedings both under civil as well as the criminal proceedings are permissible under the law. In this connection the proposition of the law laid down by the : 16 : Hon'ble Apex Court in the decision relied upon by learned counsel appearing for the respondent No.2/complainant in the case of Kamaledevi Agarwal v/s State of West Bengal and others the Hon'ble Apex Court held as under:
"The High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. There is no substance in the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different Court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. The nature and scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct. Whereas in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting standard of proof of "beyond reasonable doubt". The revisional or inherent powers of quashing of proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken at their face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of jurisdiction".: 17 :
8. The relevant paragraphs in the said decision are paragraph No.17, 9, 15 and 7. The learned counsel appearing for the petitioners/accused also relied upon the decision of the Hon'ble Apex Court in this regard and he also draw the attention of the Court to the relevant paragraphs in the decision reported in Gorige Pentaiah v/s State of Andhra Pradesh and others. The relevant paragraphs about which the attention of this Court was drawn are paragraph are no.12 to 18.
Scope and ambit of courts' powers under section 482 CrPC.
12. This court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC. can be exercised:
(i) to give effect to an order under the code;
(ii) to prevent abuse of the process of court; and
(iii) to otherwise secure the ends of justice.
Inherent powers under Section 482 CrPC.
though wide have to be exercised sparingly, : 18 : carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
Discussion of decided cases
13. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the Judge has the power to intervene. He further mentioned that the courts' power to prevent such abuse is of great constitutional importance and should be jealously preserved.
14. In R.P. Kapur v. State of Punjab this court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
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(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
15. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
16. This court in State of Karnataka v. L. Muniswamy observed that the wholesome power : 20 : under Section 482 CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts.
17. In Chandrapal Singh v. Maharaj Singh, in a landlord and tenant matter where criminal proceedings had been initiated, this Court observed in SCC at p. 467, para 1 as under:
"1. A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous."
The court noticed that the tendency of perjury is very much on the increase. Unless the courts come down heavily upon such persons, the whole judicial process would come to ridicule. The court also observed that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court.
: 21 :
18. This court in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre observed in para 7 as under: (SCC p.695) "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
9. I have perused the said decisions and also the observation made by their Lordships in the said decision also. So also the learned counsel draw the attention of the Court to paragraphs No.19 and more particularly point No.6 and 7 wherein he made the submission, that whenever the efficacious remedies are available then there : 22 : is no necessity for initiating the criminal proceedings and when the criminal proceedings are apparently malafide in a nature such proceedings cannot be entertain. Looking to the principles annunciated in the two decision of the Hon'ble Apex Court and coming to the factual aspect involved in the case on hand as I have already observed referring to the averments made in the private complaint there are serious allegations made in the complaint regarding the forgery of the signature of Smt.Susheelabai, so also presenting document before the Sub-registrar, when such are the allegations made the complainant also on oath in the sworn statement deposed about those factual aspects same were taken into consideration by the learned JMFC Court. So far as the contention of learned counsel for the petitioners regarding the report of the Truth Lab Foundation, it is no doubt true that the report goes to show the xerox copies of the Will document were used for comparison of the signature. Therefore, the learned counsel for the petitioner justified in making the submission if at all the signatures are to be compared by : 23 : the experts and to give the opinion they should be the original signatures of disputed as well as the admitted signature of the deceased Smt.Susheelabai. Therefore, so far as the report submitted by the Truth Lab Foundation is concerned according to me no importance can be attached to the said report and it is for the parties during the course of the Trial to take steps in that regard. But, only on that ground the entire other material cannot be brushed aside by the Court. Because in the criminal cases, there will be oral assertion and allegations by the parties. Ultimately during the course of the Trial it is for the Courts how for the case made out by the parties is to be accepted. But regarding the allegations Court has to consider, whether there is a prima facie case or the case is totally groundless and it is clear abuse of the process of the Court. Admittedly, according to both parties the petitioner/accused No.1 earlier also approached this Court challenging the initiation of the criminal proceedings in Crl.P.101033/2016 C/w Crl.P.101034/2016 and that was also the petitions seeking quashing of the proceedings and : 24 : the observations made by this Court while disposing of the said petitions in paragraph No.5 of the said order is very relevant for appreciating the present petition. The observation in paragraph No.5 on page No.9 of the said order of this Court reads as under;
"5. Heard the learned counsel for parties and perused the material on record. However, in the present petitions, learned counsel appearing for both the sides agree that the discharge of accused needs to be taken to a logical end instead of seeking quashing of proceedings on technicalities and accordingly, request this Court to set aside the impugned orders and refer the matter back to the Court below with a direction to the learned Magistrate to record the sworn statement of complainant Mr.Jayawant, and thereafter, to take appropriate decision in terms of the material available on record. The same is accepted."
10. Therefore, even when the Court was approached on the earlier occasion also, the main contention that the learned Magistrate has not recorded sworn statement of the complainant and he proceeded to take cognizance in the absence of such statement. Therefore, this Court gave direction to record the sworn statement of the complainant and to proceed in the matter : 25 : in accordance with law. After remand of the matter sworn statement of the complainant was recorded and the copy of which is also produced here. Looking to the sworn statement even on oath he has deposed about all the factual aspect he has contented in the complaint is concerned.
11. So far as the contention of the learned counsel that in the impugned order there is no specific mention in respect of which offences the cognizance is taken. I have perused the said order dated 09.01.2017 on the last page it is mentioned that therefore, he took cognizance that the accused persons committed the offence, for the offence under Section 465, 467, 468, 471, 474, 120B read with Section 149 of the IPC. Therefore, there is a mention in the order even at the end of the said order for that purpose even the entire order is to be looked into and the cumulative effect of the said order is to be appreciated and not in isolation, therefore, the said contention has no merit at all. Considering all these aspects of the matter I am of : 26 : the opinion there is a prima facie case it is not a case without any prima facie material, it is not the case of abuse of the process of the Court. Hence, the petitioners have fail to make out a case to quash the proceedings invoking Section 482 of the Cr.P.C. Accordingly, the petition fails and it is hereby rejected.
Sd/-
JUDGE RHR/-