Delhi District Court
State vs Rajnish & Ors. on 29 June, 2019
FIR No. 136/09
PS: Rajinder Nagar
U/s 379/411/120B/408/34 IPC
State Vs Rajnish & Ors.
IN THE COURT OF SH. VIPLAV DABAS MM03
CENTRAL TIS HAZARI COURTS DELHI
CIS No.301929/2016
FIR No. 136/09
PS: Rajinder Nagar
U/s 379/411/120 B/408/34 IPC
State Vs Rajnish and Ors.
Date of Institution of case : 29.11.2009
Date of Judgment : 29.06.2019
JUDGMENT:
a) Date of offence : 24.09.2009 b) Offence complained of : U/s 379/411/120B/408/34 IPC c) Name of Accused, his : 1. Rajnish Kundan S/o Sh. Prem Nath (already convicted in the Plea Bargaining Court) 2. Rajat @ Love S/o Sh. Vijay Seth (already convicted in the Plea Bargaining Court) 3. Shri Prakash @ Shri S/o Sh. Lala Ram (already convicted in the Plea Bargaining Court) 4. Satnam Singh @ Sonu S/o Late Gurdarshan Singh (already convicted in the Plea Bargaining Court) Page 1 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors. 5. Pawan @ Babli S/o Sh. Amar Singh R/o RZQ110, Nihal Vihar, Nangoi, Delhi. 6. Brij Mohan S/o Late Sh. Ved Prakash, R/o B22, Udai Vihar, Chander Vihar, Nilothi Ext., Delhi. d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted Page 2 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
Brief facts and reasons for the decision of the case:
1. The case of the prosecution is that accused Pawan @ Babli and Brij Mohan conspired on or before 24.09.2009 with the coaccused persons who have already been convicted, to steal the money entrusted with two of the said coaccused persons namely Rajat and Sri Prakash, servant of the complainant Mahipal Singh and on 24.09.2009 at about 12.20 pm at Red Light in front of Budha Garden, New Delhi in pursuance of abovesaid criminal conspiracy, the accused persons alongwith coaccused (already convicted) committed theft of Rs. 27,50,000/belonging to complainant Mahipal Singh and on 06.10.2009 the accused persons namely Pawan and Brij Mohan were apprehended at the instance of secret informer and out of the abovesaid money, Rs. 2,02,000/ was recovered from the possession of Pawan @ Babli and Rs. 1,39,500/ was recovered from the possession of accused Brij Mohan @ Bholu. On the basis of said allegations, present FIR under Section 379/411/120 B/408/34 IPC was registered. After the usual investigation, the charge sheet for the offence U/Sec 379/411/120B/408/34 IPC was prepared against the accused.
2. The aforesaid chargesheet was filed before the court on 29.11.2009, whereupon the cognizance of the offence was taken against the accused. The provision of section 207 Cr.PC. was complied with.
3. After hearing the arguments, all the accused persons except accused Rajat @ Love were charged for the alleged commission of the offence U/Sec 379/411/120B IPC and accused Rajit @ Love was charged for commission of Page 3 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
offence punishable under Section 408/411 read with Section 120 B IPC to which the accused persons pleaded "Not Guilty" and claimed trial. Accordingly, the case was fixed for prosecution evidence.
4. Record shows that accused persons namely Rajnish Kundan, Rajat @ Love, Sri Prakash @ Sri and Satnam were convicted in the plea bargaining proceedings and trial proceeded further qua accused Pawan @ Babli and Brij Mohan.
5. During the course of the trial prosecution has examined seven witnesses to substantiate the accusation.
6. PW1 Mahipal Singh deposed that on 24.09.2009, he gave Rs. 27,50,000/ (in denomination of currency notes of Rs. 1000, 500, 100 and 50) to his servant Shri Prakash and his driver Rajat to deposit the same in his current bank account in Dena Bank, Lodhi Road, Delhi, that he sent both accused persons along with said money in his Honda City car bearing registration number DL4C AH 6795 to the said bank, that at about 12.25 pm, Mr. Brij Mohan who also accompanying both the said accused persons from Naraina in the same vehicle informed him telephonically that the said money which was in the bag, kept in the dickey of the said car has been taken out from the dickey of the said car near Budha Garden, that he immediately reached at the spot & that Rajat, Sri Prakash and Brij Mohan told him that somebody came on red colour motorcycle and he took out the said money from the dickey and ran away. PW1 Mahipal Singh further deposed that the said facts was told to them by toy vendor, that he ran up to the police, that IO reached the spot & Page 4 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
he gave his written complaint Ex.PW1//A, that IO got the case registered & that IO recorded his statement in the PS. PW1 Mahipal Singh further stated that later on, IO told him that out of the said money, Rs. 14,81,500 have been recovered from the accused persons, that on 21.03.2010, he handed over the copy of bills regarding the sale of plastic dana which was sold by him to his customers vide said bills, that IO seized the same vide memo Ex.PW1/B & that during investigation, he was told by the IO that the said money was stolen with the assistance/help of his above said servants Rajat and Shri Prakash as they had conspired with coaccused persons. PW1 Mahipal Singh identified the case property i.e recovered currency notes which are exhibited Ex. P1 to P7.
During cross examination, the witness deposed that the bank slips on the case property does not bear his signature, date or number of currency notes, that he does not have any account in Central Bank of India, that he is having account in Dena Bank, that he was present in office when the case amount of Rs. 27,50,000/ was handed over to accused Rajat and Sri Prakash, that no entry in the said book was made in his presence on the spot and that he had not requisitioned the bank slips in writing from the bank. The witness denied the suggestion that he had procured the bank slips after the recovery of the amount from the accused persons.
7. PW2 Brij Mohan deposed that on 24.09.2009, he was employee of the complainant in his office at Naraina, that on that day, he received a call of complainant Mahipal and he directed him to go with Rajat and Sriprakash for depositing cheques and cash of Rs. 27,50,000 in the account of the complainant at IOB, Inder Puri and Lodhi Road and he informed him that the said cheques and cash are already with Rajat and Sri Prakash, that Rajat and Page 5 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
Sri Prakash reached in the office at about 11.30 am with cash and cheques, that he immediately left the office along with said persons in Honda City car which was of the complainant, that they reached in IOB, Inderpuri and accused Rajat deposited the above said cheques in the above said bank, that thereafter, he along with accused Rajat and Sri Prakash proceeded to Lodhi Road for deposition of the cash, that accused Rajat kept him involved in talking at Ram Nath Vij Marg near Durga Mandir where accused Rajat gave him a CD, that he played the said CD as per the request of accused Rajat, that they reached at red light, Budha Garden but it was yellow light for them and accused Rajat was driving the said car, that he stopped the car & that as soon as he stopped the car, one person came on a red color motorcycle from their back side and took uturn after crossing their car from their left side and stopped his motorcycle on the road at the right side of accused Rajat, that in the meantime, accused Rajat asked him to change the CD by saying that song was not good, that he took out some CD from the drawer of the dash board but in the meantime, accused Rajat made all the CDs fall down, that he bent himself to lift the CDs & in the meantime, he noticed accused Rajat was talking with somebody on phone, that he lifted all the CDs and put one CD in the CD player and played the same, that accused Rajat started moving his car from there & that one toy hawker knocked the window glass of the window of driver side but accused Rajat did not care. PW2 Brij Mohan further deposed that he called the said toy hawker towards himself as he was sitting at the left side of accused Rajat & that he opened his window and then toy hawker told him that somebody lifted the bag containing the above said money of Rs. 27,50,000/ from the dickey of the said car and ran away on his red colour bike. PW2 Brij Mohan stated that he got down from the car and checked the dickey and found that dickey of the Page 6 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
car was open and bag containing the said money was missing, that he immediately informed the complainant and thereafter, rang up the police from mobile, that after sometime, many police officials from different PS reached to the spot, that crime team also reached to the spot and they conducted proceedings there, that complainant also reached to the spot, that police prepared site plan Ex.PW1/C at their instance & that he can not identify the person who came to the spot on a red colour motorcycle as he was wearing helmet and he could not see his face.
During cross examination the witness denied the suggestion that he came to know about the cash ofo Rs. 27,50,000/ after the commission of the theft. The witness further deposed that neither he had seen the cash amount nor it was counted before him. The witness denied the suggestion that he was not aware about the cash lying in the dickey of the said car. The witness further deposed that the said cash amount was put in the dickey of the said car at Naraina office in his presence by accused Rajat, that the complainant informed him about the cash handed over to the accused Rajat and Sri Parkash in a bag, that he has not seen anybody taking out the money from the dickey of the said car and that he does not remember whether the statement of the toy hawker was recorded on the spot or not. The witness further deposed that he does not remember as to how many signatures were obtained by the police official from him, that he does not remember about his last visit to the police station Rajinder Nagar and that he left the spot alongwith 34 police officials in a police Gypsy and came to the PS Rajinder Nagar after 23 hours of the incident and that he is not acquainted with the accused Pawan @ Babli nor he saw him alongwith accused Rajat before the incident.
Page 7 of 18 FIR No. 136/09PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
8. PW3 Ct. Sunil Kumar deposed that on 06.10.2009, he joined investigation along with IO Ramphool Singh, Ct. Manoj and Ct. Naresh, that on that day, they apprehended the accused Pawan and Brij Mohan at the instance of secret informer, that he arrested accused Pawan and Brij Mohan vide memo Ex.PW3/A and Ex.PW3/B and conducted their personal search vide memo Ex.PW3/C and Ex.PW3/D and recorded their disclosure statement Ex.PW3/E and Ex.PW3/F, that Rs. 1,39,500 was also recovered from the possession of accused Brij Mohan which was seized vide memo Ex.PW4/A, that Rs. 2,02,000 was also recovered from accused Pawan vide memo Ex.PW3/B & that some cash amount was recovered from the possession of accused persons.
During the cross examination the witness deposed that he alongwith other police officials reached at the New Delhi railway station at about 8:00 p.m, that no independent public person was made witness in his presence, that during the personal search of the accused Pawan one mobile phone, one golden chain and Rs. 2600/ in cash were recovered from his possession and that all the paper work was completed at about 10:00 p.m. The witness denied the suggestion that nothing was recovered from the possession of both accused persons.
9. PW4 Ct. Naresh deposed that on 06.10.2009, he joined investigation along with IO Ramphool Singh, Ct. Manoj and Ct. Sunil, that on that day they apprehended the accused Pawan and Brij Mohan at the instance of secret informer, that he arrested accused Pawan and Brij Mohan vide memo Ex.PW3/A and Ex.PW3/B and conducted their personal search vide memo Page 8 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
Ex.PW3/C and Ex.PW3/D and recorded their disclosure statement Ex.PW3/E and Ex.PW3/F, that Rs. 1,39,500 was recovered from the possession of accused Brij Mohan which was seized vide memo Ex.PW4/A & Rs. 2,02,000 was recovered from accused Pawan vide memo Ex.PW3/B & that some cash amount was recovered from the possession of accused persons.
During cross examination the witness deposed that he alongwith accused and other police officials reached firstly at Lal Qila bus stand at about 5:15 p.m, that he has never seen both the accused persons prior to their arrest and that IO had requested the public persons to join the investigation but they refused. The witness denied the suggestion that no recovery was effected from accused persons and that he never joined the investigation.
10. PW5 HC Bhoop Singh proved the DD entry number 25A dated 24.09.2009 as Ex.PW5/A, FIR of the present case as Ex.PW5/B and endorsement on complaint as Ex.PW5/C. This witness was not cross examined by or on behalf of accused.
11. PW6 HC Ramesh Kumar MHC(M) proved the entry mentioned at Serial Number 969 of register no. 19 regarding the deposition of case property.
This witness was not cross examined by or on behalf of accused.
12. PW7 HC Ajay Kumar deposed that on 24.09.2009, he was on emergency duty from 8.00 a.m to 8.00 p.m. at PS Rajinder Nagar, that on that day, DD no. 25 A was marked to ASI Ramphool which was handed over to him by duty officer for transmission to ASI Ramphool, that ASI Ramphool met Page 9 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
him outside the police station and he handed over the said DD no. 25 A to him, that the DD no. 25 A dated 24.09.2009 is PW5/A, that he along with ASI Ramphool went to the spot ie. Red light ridge road, Ramnath Marg, Budha Garden Tpoint inspected the spot and that after inspection crime team was called. PW7 HC Ajay Kumar further deposed that during the inquiry one person namely Mahipal Singh met them and informed that Rs 27.5 lacs along with cash bag was stolen from the dicky of his car at the red light, that ASI Ramphool recorded his statement in this regard and made endorsement on it for registration of FIR, that he went to the PS and got the FIR registered, that he came back at the spot and handed over the original tehreer and copy of FIR to ASI Ramphool, that the Crime Team persons took the photographs of the spot and lifted the finger prints from the spot and thereafter, they were discharged & that the driver of the said Honda City car namely Rajat was also present on the driver seat at the spot. PW7 HC Ajay Kumar further deposed that site plan was prepared on the instance of Mahipal Singh and Rajat, that one person namely Shree Prakash was also sitting in the car on the back seat, that complainant Mahipal Singh gave his supplementary statement in his own handwriting, that inquiry was made from driver Rajat and Shree Prakash, their details and phone numbers were taken by ASI Ramphool, that notice under Section 160 Cr.P.C. was given to Rajat and Shree Prakash to appear on the next date and that IO recorded his statement.
This witness was not cross examined by or on behalf of accused.
13. Thereafter, Prosecution Evidence was closed by this Court on 29.04.2019 and matter was fixed for recording of statement of accused.
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14. The Statement of Accused was recorded U/Sec 313 Cr. P.C on 20.05.2019 and all the incriminating circumstances came in evidence were put to both the accused persons to which the accused persons replied that this is a false case. Accused persons did not chose to lead evidence in their defence.
15. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued by Ld. Defence Counsel on behalf of accused the accused is innocent and he has been falsely implicated in this case
16. I have heard the arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused and have perused the record of the case.
17. In order to bring home the guilt of the accused persons for the offence punishable under Section 379/411 read with 120 B IPC, it is imperative for the prosecution to prove the fact that case property i.e currency notes belonged to the complainant, that same were removed from his possession without his consent by the accused persons dishonestly, that the case property belonging to the complainant was recovered from the possession of the accused persons and that there was an agreement or prior meeting of minds, of the accused persons with the other coaccused persons who have already been convicted, to commit theft of the money belonging to the complainant before the alleged commission of theft.
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18. Applying the aforesaid proposition of law to the facts of the present case, it is pertinent to refer to the testimony of the complainant PW1 who stated that he gave Rs. 27,50,000/ on 24.09.2009 in denomination of currency notes of Rs. 1,000/, Rs. 500/, Rs. 100/ and Rs. 50/ and that he had wrapped the bundles of the currency notes with the slips of the Dena Bank as the said slips were provided to him by the Dena Bank for sending the money to the bank after wrapping with the said slips. In the examination in chief PW1 further stated that he does not remember about the exact number of currency notes of the aforesaid denomination. Perusal of the testimony of PW1 further shows that at the time of identifying the currency notes recovered from co accused Satnam, who has already been convicted in plea bargaining proceedings, some currency notes were found without any bank slips and some were found having slip of Central Bank of India.
19. In the cross examination, PW1 admitted that the bank slips on the case property do not bear any signature, date and number of currency notes. PW1 further admitted that he does not have any account in Central Bank of India. PW1 further admitted that he has not requisitioned the bank slips in writing from the bank. PW1 further deposed in his cross examination that he provided the details of the currency notes to the police on the date of incident itself and again stated in the further cross examination that he had not mentioned the details of the stolen currency notes at the time of registration of the FIR.
20. The aforesaid testimonies show that the version of PW1 that the currency notes were wrapped in the bundles of Dena Bank is not consistent Page 12 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
with the alleged recovery as some bundles were found wrapped in slips of Central Bank of India and the PW1 admittedly does not have any account with Central Bank of India. So, a grave doubt is created upon the very identification of the currency notes by PW1. Record further shows that no witness from the Dena Bank was joined in the investigation to support the version of the PW1 regarding the issuing of slips of the Dena Bank to him for wrapping huge amount of currency notes which is a material omission on the part of the investigating agency. It is also an admitted fact that no specific identification mark was present on the currency notes apart from the slip of Dena Bank issuing of which by Dena Bank is not proved as discussed above. Thus, the identification of the case property made solely on the basis of slips of Dena Bank in the absence of any other specific identification mark like some signature, stamps or series of the currency notes can not be relied.
21. The fact that the details of the currency notes were not provided by the PW1 at the time of registration of FIR and the fact that he failed to tell the same during his testimony is again a material omission as an ordinary businessman dealing with such huge cash amount maintains such record in regular course and such details are generally mentioned and recorded before dispatch of the currency notes for deposition in the bank. These omissions further make the factum of identification of currency notes by PW1 highly suspicious.
22. Perusal of the record further shows that PW2 who was sitting in the car at the time of the alleged theft admitted that he had not seen any body taking Page 13 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
out the money from the Dicky of the said car, that the fact of theft of the bag containing money was told to him by a hawker and that he had not seen face of the person who had come on red motorcycle as he was wearing helmet. Record shows that the said toy hawker was the only eye witness of the alleged theft but he was not brought for deposition. It is further reflected from the record that there is neither any other circumstance nor any other witness suggesting that the accused persons namely Pawan and Brij Mohan committed theft on the date of the incident. In the absence of any eye witness or other circumstance establishing the presence of the said accused persons on the spot and their lifting the bag containing money from the car, no criminal liability for the offence punishable under Section 379 IPC can be fastened upon the accused persons.
23. It is observed from the record that the accused persons namely Pawan and Brij Mohan were arrested on 06.10.2009 i.e much after the commission of the alleged theft on 24.09.2009 and a sum of Rs. 1,39,500/ was recovered from the possession of the accused Brij Mohan and Rs. 2,02,000/ was recovered from the possession of the accused Pawan in the presence of PW3 Ct. Sunil Kumar & PW4 Ct. Naresh at the instance of secret informer from railway platform and Lal Quila. Perusal of the testimony of PW3 and PW4 reveals that the case property was not got identified by them at the time of recording of examination in chief which is a material omission indicating that identity of the aforesaid amount allegedly recovered from the possession of the accused persons has not been proved before the Court and it can not be said that the alleged case property is the same property which was recovered from the possession of the accused persons.
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24. In the cross examination, PW3 deposed that they reached at the New Delhi Railway station at about 8:00 p.m and can not tell the number of the platform where they reached, that there was crowd at the platform, that IO was talking with the public persons and that no independent public person was made witness in his presence at that time. PW4 deposed that public persons were present at Lal Quila, that the IO had requested public persons to join the investigation but they refused and that he had no knowledge as to whether the IO had served the notice upon the public persons who refused to join the investigation.
25. These testimonies show that both the accused persons were arrested from public place and public persons were present at that time but no public person were joined in the apprehension and recovery proceedings. It shows that nonjoinder of public persons were deliberate one on the part of the investigating agency which is material omission creating doubt qua the factum of the recovery of the case property as no plausible & consistent justification has been given for nonjoinder of public persons as witness of recovery.
26. Record shows that prosecution did not even prove the daily entry made by the raiding party at the time of leaving the police station on 06.10.2009 for conducting raid after which accused persons were arrested. This is a material omission creating doubt on the very presence of the PWs on the spot from where alleged recovery was affected which further renders the version of the alleged recovery in alleged manner high suspicious.
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27. Regarding the value of making DD entry it is worth mentioning that as per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under : " 22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered : (C)The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note : The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 19872 (2) Crimes 29 the Hon'ble Delhi High Court "Wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the court will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique Page 16 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
motive on the part of the prosecution."
28. In the present case, the above said provision appears to have not been complied with by prosecution. These omissions on the part of the prosecution create doubt on the version that the accused persons were apprehended alongwith the stolen money.
29. Perusal of the record shows that no material suggesting the existence of any prior agreement between the accused persons and other coaccused persons (already convicted) or interse the accused to commit the theft, has been brought on record either by way of any witness or documents like call details record. It indicates that version of prosecution qua existence of prior agreement between the accused persons for committing theft is not proved.
30. It is thus clear from the afore discussed observations, analysis of testimonies, contradictions, inconsistencies, omissions and discrepancies that the fact that currency notes belonged to the complainant, that same were removed from his possession without his consent by the accused persons dishonestly, that the case property belonging to the complainant was recovered from the possession of the accused persons and that there was an agreement or prior meeting of minds of the accused persons with the other coaccused persons who have already been convicted to commit theft of the money belonging to the complainant before the alleged commission of theft which are essential elements for fastening criminal liability for the offence punishable U/s 379/411 read with Section 120 B IPC have not been proved beyond Page 17 of 18 FIR No. 136/09 PS: Rajinder Nagar U/s 379/411/120B/408/34 IPC State Vs Rajnish & Ors.
reasonable doubt.
31. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, both the accused persons namely 1) Pawan @ Babli S/o Sh. Amar Singh and 2) Brij Mohan, S/o Late Sh. Ved Prakash are acquitted of the charges for the offences punishable U/s 379/411 read with Section 120 IPC levelled against them. Bail bonds stand cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
Fresh bail bond and surety bond have already been furnished and accepted in compliance of Section 437 (A) Cr.P.C.
File be consigned to the Record Room after due compliance.
Digitally signedVIPLAV by VIPLAV DABAS DABAS Date: 2019.07.03 17:59:09 +0530 Announced in the Open Court (VIPLAV DABAS) today i.e on 29.06.2019 MM03/CENTRAL:DELHI 29.06.2019 Page 18 of 18