Delhi District Court
Sudesh Pal Chawla vs The State on 3 August, 2010
IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS
JUDGE 03 (CENTRAL) DELHI
Criminal Appeal No. 38/08
ID No. 02401R0788352007
Sudesh Pal Chawla
S/o Late Shri Chunni Lal,
D/o D - 157, West Patel Nagar,
New Delhi. .... Appellant
Vs
The State .... Respondent
Instituted on : 16.08.2007
Judgment reserved on: 02.08.2010
Judgment pronounced on: 03.08.2010
J U D G M E N T
1. In this criminal appeal, appellant has challenged the judgment dated 23.05.2007 passed by Shri Anand Swaroop Aggarwal, Metropolitan Magistrate, Delhi in criminal case No.627/2 of 2006 arising out of FIR No.500/94 under Section 406/380 IPC of PS Patel Nagar whereby he was held guilty and convicted for the offence under Section 406 IPC. It may be mentioned here that the appellant faced this trial on the basis of charge framed under Section 380 IPC or in the alternative under Section 406 IPC. The Ld. trial court found the charge under Section 380 IPC not to have been brought home. The appeal also questions the correctness, legality and propriety of the order on sentence dated CA 38/08 Sudesh Pal Chawla Vs. State 1 of 21 16.07.2007 whereby he was sentenced to simple imprisonment for one year with compensation in the sum of Rs.1,00,000/ (Rupees One Lac only), in default to further undergo simple imprisonment for six months.
2. Before coming to the relevant contentions urged during the course of hearing in this appeal, it would be proper to take notice, briefly, of the allegations and the background facts.
3. The FIR was registered on the basis of complaint dated 05.03.1994 of Mr. Surender Kumar Chawla (PW2). The complainant (Surender Kumar Chawla) and the appellant are real brothers. They are two siblings amongst a family consisting of three brothers and three sisters, the appellant being the eldest one. It has come in the evidence that their father Late Shri Chunni Lal Chawla had died in the year 1973. It has further come in the evidence that the appellant was earlier in service and mostly stationed in Banaras, U.P. during his said employment. He retired in the year 1996.
4. The dispute essentially relates to property bearing No. D-157, West Patel Nagar, New Delhi, a property undisputably acquired during his lifetime by the late father of the complainant and the appellant. As per the site plan (Ex.PW5/B), this property consists mainly of three rooms out of which the middle room is shown to be smaller in size, besides a kitchen, bath and latrine on the rear side. There is an additional portion in the front which has been described by the appellant as an unauthorised structure raised by the complainant. Be that as it may, CA 38/08 Sudesh Pal Chawla Vs. State 2 of 21 the said structure has been in use of the complainant as a shop.
5. It appears that the third brother, namely, Mr. Satpal Chawla (PW3) had left this premises long ago. It is his own admission that he lived in that property only till April, 1992. Therefore, during the crucial period, he was not residing there. Out of the three sisters, two are stated to be married, the third sister Saroj Chawla (PW4) admittedly a resident of another property in Rohini. It is undisputed case of both sides that she and the complainant with their respected families/kin were living elsewhere during the relevant period.
6. It further appears from the record that the complainant had filed a civil suit for partition which was presented in and initially heard by the Hon'ble High Court in which the appellant herein was a defendant. It appears further that in the said civil suit (No.25/1993), Hon'ble High Court vide order dated 19.05.1993 while issuing summons to the defendant had directed status quo to be maintained with regard to the possession and construction in the said property.
7. It has come on record that Hon'ble High Court vide order dated 24.09.1993 in the said civil suit had appointed Shri P.P.S. Premi, Advocate as Local Commissioner to go to the premises and prepare an inventory of the articles belonging to the plaintiff (i.e. the complainant herein). It is further a matter of judicial record that on 30.09.1993 when the Local Commissioner Shri P.P.S. Premi went to the premises, he was unable to make an inspection or carry out the commission in which regard he made a report dated 07.10.1993. According to the CA 38/08 Sudesh Pal Chawla Vs. State 3 of 21 said report, Mr. Sudesh Pal Chawla, the defendant in the civil suit, now the appellant in the matter at hand was present at the site but in spite of being shown the order of the Hon'ble High Court and explained the purpose of the visit of the Local Commissioner, he would not permit entry into the premises and thereby blocked the inspection.
8. It is further the case of the complainant/prosecution that on this report being considered by the Hon'ble High Court and prayer being made for initiation of action under the Contempt of Courts Act, Hon'ble High Court issued further directions vide order dated 04.03.1994 for the inspection of the premises to be carried out on 05.03.1994 at 03:00 p.m. by the Local Commissioner. It was made clear in the said order that no hindrance in the execution of the commission should be caused and if the execution of the commission was again resisted, the SHO of the area was to afford necessary assistance.
9. It appears that pursuant to the aforesaid directions, the Local Commissioner visited the property in question and prepared an inventory on 05.03.1994 noting down the articles found therein which were identified by the complainant to be the articles belonging to him.
10.The complaint which is the basis of the FIR at hand was filed on 05.03.1994 immediately after the local inspection by the Court Commissioner as aforesaid. In this complaint (Ex.PW2/A), the complainant PW2 Surender Kumar Chawla, inter alia, alleged that he is the owner of 5/6th share in the property in question with a shop in CA 38/08 Sudesh Pal Chawla Vs. State 4 of 21 front which is in his exclusive possession. He claimed that in the rest of the premises, he was in joint possession with his brother Sudesh Kumar Chawla, i.e. the appellant. He claimed that all his household goods were lying in the premises when he had last visited the place under police protection on 16.08.1993. He stated that he had taken out a few clothes from his steel almirah for use of his wife and sister leaving behind the rest of the goods. He also referred to a complaint earlier lodged by him with the police on 16.08.1993. Referring to the refusal to permit the Local Commissioner to inspect the premises on 30.09.1993 and the inspection carried out on 05.03.1994 under fresh orders of Hon'ble High Court, he stated that a number of articles belonging to him were found by him to be missing/stolen from the said premises. He mentioned nineteen items amongst those articles which he alleged to be missing/stolen including two big steel almirahs, one small steel almirah, one double bed, one sofa set, one center table, TV, mixy, clothes, articles of daily use like blankets, folding beds, mattresses, utensils, etc.
11.The record indicates that the police was not initially sure as to what action to take. Opinion was sought from the prosecution branch which initially was against the registration of a case. However, it appears that on the matter being pursued, on an advice that there was "no harm" in doing so on complaint of cognizable offence, SHO, PS Patel Nagar got an FIR registered under Section 380 IPC on 22.07.1994 by way of endorsement of SI Joginder Pal (PW5), who CA 38/08 Sudesh Pal Chawla Vs. State 5 of 21 took over the investigation later as the Investigating Officer (IO).
12.The investigation by the police resulted in chargesheet being presented in the Court of Metropolitan Magistrate on 16.11.1994 on which cognizance was taken and the appellant was summoned as an accused.
13.On his appearance, the Ld. MM, then in seisin of the matter, considered the question of charge. She passed a detailed order in this regard on 08.03.1996 finding charge under Section 406 IPC to be made out. In the alternative, she was of the view that charge under Section 380 IPC was also disclosed by the material on record. Charges for the said two offences, in the alternative, were thus framed to which the appellant pleaded not guilty.
14.In the course of the trial that followed, five witnesses were examined which include the complainant (PW2), his sister Saroj Chawla (PW4) and their brother Satpal Chawla (PW3). The rest of the witnesses relate to the investigation.
15.The Ld. MM recorded a memorandum of the substance of the examination of the accused on 03.02.2004. It is clear that this memorandum represents the statement of the accused recorded under Section 313 Cr.P.C. read with Section 281 Cr.P.C.
16.In his defence, the appellant examined one witness, a neighbour.
17.On conclusion of the trial, the Ld. MM passed the judgement, the result of which has already been taken note of.
18.It is apposite to cull out some relevant aspects of the evidence of the CA 38/08 Sudesh Pal Chawla Vs. State 6 of 21 prosecution at this stage.
19.In his statement during the trial, the complainant PW2 generally spoke about the sequence of events set out in the complaint leading to the filing of the FIR. During crossexamination, he stated that he was about 21 years old when his father had expired. He conceded during crossexamination on 05.10.1999 the suggestion that the household goods were joint property and that no partition has been effected between him and the appellant till date. This, as shall be seen hereafter, is a very significant admission cutting at the root of the charges against the appellant. In this context, he, however, referred to the partition suit pending in the High Court.
20.During continued crossexamination on 15.10.2002, he stated that he would not remember the exact date when his father had retired from service. He was also unable to give his own age as on date his father had retired. He stated that he had been living in the property in question since his birth. He was asked about the date on which he had shifted the residence from the house in question. He stated that he had temporarily shifted as his wife was working in Hindon (UP) during those days and so he had taken up residence in Sahibabad (UP). He was unable to give the exact date of so shifting residence to Sahibabad, although temporarily. He further reiterated at that stage that his goods were lying in the property in question and that the same were used by his younger brother Satpal Chawla (PW3) and his sister Saroj Chawla (PW4). It came out during his crossexamination that CA 38/08 Sudesh Pal Chawla Vs. State 7 of 21 his wife had delivered a child in Sahibabad in 1988. This indicates that the period since when he had been living in Sahibabad would go back to at least 1988. Since in the FIR he had given the address of Moti Nagar, he was questioned in that regard as well by the defence counsel. But he would plead lack of memory as to when he had shifted to Moti Nagar. He stated that all the goods which were used by his father had continued to lie in the same premises. He stated that he had come to know about this when he had visited the premises on 16.08.1993 under police protection and again on 05.03.1994 with the Local Commissioner. If it were so, the visit of 16.08.93 would have come about after a long hiatus.
21.During crossexamination of PW2, the complainant, it also came out that there had been a quarrel between the appellant and the complainant in 1992 and 1993 as well. He conceded that he and the appellant were arrested in the year 1993. It appears from his statement that the proceedings in which these two persons were arrested in 1993 related to an action under Section 107/150 Cr.P.C. taken by the police apprehending breach of peace in the area. It was suggested to him that on 16.08.1993, the day he visited the place under police protection, apparently in the wake of the dispute/quarrel which had given rise to the action under Section 107/150 Cr.P.C., he had collected all his articles. He denied the said suggestion as incorrect seeking to clarify that he had collected only a few articles for the use of his wife and sister.
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22.PW3 Satpal Chawla has generally sought to corroborate the case of the complainant in his examinationinchief. Interestingly, he would state that the shop in front of his house is in exclusive possession of his brother Surender Kumar Chawla while the remaining house is in joint possession. It is nowhere clarified as to how the complainant and his witnesses are claiming it to be a case of joint possession when no one except the appellant is shown to be firmly in the premises even to the extent that he would bar entry of the Local Commissioner deputed by the Hon'ble High Court in the course of the civil suit.
23.Be that as it may, during crossexamination, PW3 stated that he was hardly eight years of age when the father of these parties had died in 1973. He contradicted the claim of the complainant about he being twenty one year old (as stated on 05.10.1999) or being twenty nine year old (as stated on 15.04.2002). According to PW3, the complainant was hardly 14 - 15 year old in 1973 when his father died. Though PW3 would also state that the complainant had continued to live in the same house even till the time of his marriage in 1987, it is clear from his statement that the complainant had shifted residence with his wife to Sahibabad sometime in 1985.
24.PW4 Saroj Chawla, the younger sister of the appellant and the complainant in her statement stated that the house in question including the shop is in the possession of the appellant. She generally stated that the entire household goods of the complainant were lying in the premises in question but the same had been removed from there CA 38/08 Sudesh Pal Chawla Vs. State 9 of 21 by the appellant. During crossexamination, she expressed lack of memory when questioned as to whether the appellant and the complainant were living separately from each other in 1993. She further stated that she would not remember as to where the appellant was living in 1993. She stated that when their father died, all the goods in the house belonged to the parents.
25.PW5 Inspector Joginder Pal Mehta was the investigating officer. He stated during his examinationinchief itself that he had not been able to make any recovery during the investigation nor had taken over any receipt of articles or cash memos of the articles indicating the acquisition of the property stated to have been subjected to criminal breach of trust.
26.Though it has come out during the course of submissions on both sides that their late father had left behind a Will, the said document has not been proved in this case. The question as to whether the right of the appellant is only to the extent of 1/6th share in the property is not a subject matter of trial in the case at hand. The same is an issue on which the civil court where the matter is now pending will have to adjudicate. The fact remains that the premises from the time prior to the filing of the suit for partition has been in use and occupation of the appellant, almost exclusively since 1985 as shown in evidence of PW3 referred to above. The other parties may have a right to claim partition or share in the property. But the fact remains that the physical use of the property has been with the appellant which is writ CA 38/08 Sudesh Pal Chawla Vs. State 10 of 21 large on the evidence noted above.
27.When the prosecution had concluded its evidence, the learned trial court recorded the statement of the appellant, as accused, on 03.02.2004. In the memorandum prepared at that stage, the opening line generally stated that all the incriminating circumstances appearing in evidence had been put to the accused. Thereafter, the Ld. MM specifically referred to Ex.PW2/A, the complaint forming the basis of the FIR, earlier complaint Ex.PW2/B and the document Ex.PW2/C which the appellant would describe as a complaint against the police officials. The Ld. MM also confronted the appellant with the FIR Ex.PW1/A, Rukka Ex.PW5/A and site plan Ex.PW5/B. The appellant denied all these documents and stated that the complainant had already taken away his belongings from the property in the month of November/December, 1992, except for what he described as 'Kabad', lying in the unauthorised structure.
28.The learned trial court in the impugned judgment found that charge under Section 380 IPC had not been proved. The reason given for this finding is that at the time of commission of the offence, the appellant himself was in exclusive possession of the goods because he along with his family members only was residing in the premises in question. This court is not called upon to go into the validity of the reasons cited for acquitting the appellant on the charge under Section 380 IPC It has not been challenged by way of appeal, and thus the said result has attained finality and is not open to review in this CA 38/08 Sudesh Pal Chawla Vs. State 11 of 21 appeal.
29.The offence for which the appellant has been found and held guilty by the trial court is provided in Section 406 IPC. The offence of criminal breach of trust punishable under Section 406 IPC is an aggravated form of the offence of criminal misappropriation which is defined in Section 403 IPC.
30.In order to bring home the allegations of dishonest misappropriation of a property, it is essential for the prosecution to prove three basic things, namely, (i) that the property was of the complainant, (ii) that the accused had misappropriated the same or converted it to his own use and (iii) that he had done so dishonestly [Rama Swamy Nadar V. State AIR 1958 SC 56]. In order to bring home the charge of criminal breach of trust, as defined in Section 405 IPC, it is additionally a burden of the prosecution to prove that there had been an entrustment of the property unto the accused and that the person so entrusted with the property or dominion thereof had committed dishonest misappropriation in its respect. [AIR 1965 SC 1433; Kailash Kumar Sanwatia V. State of Bihar (2003) 7 SCC 399]. General allegations of entrustment do not suffice. [Surjjit Singh V. Jaswant Kaur 1990(1) CCC 526; Angrej Singh V. State 1991(2) CCC 563; Adarsh V. State II (1992) CCR 1265; Harbans Lal V. Ram Devi II (1992) CCR 964]
31.The matter requires to be examined in light of the ingredients of the CA 38/08 Sudesh Pal Chawla Vs. State 12 of 21 offence for which the appellant herein was charged, tried and found guilty. This required a clear finding as to when the complainant had left the premises to setup house elsewhere. But, unfortunately, the complainant has not been very candid or clear. He would leave the essential facts in this regard vague, may be with a purpose. Whenever questioned, his answers would indicate he was only giving a non specific statement which lacked sufficient information. The evidence, as noted above, clearly shows that the house in question had been in exclusive use of the appellant for many years before the dispute broke out to the extent of compelling the police to take action under Section 107/150 Cr.P.C.
32.As already indicated, the complainant and the appellant had been arrested under Section 107/150 Cr.P.C. sometime in 1993. This apparently was the occasion, and the reason, for the appellant to visit the premises, under police protection, to retrieve what he was claiming to be his household goods lying there. The document "Mark X" is dated 16.08.1993. The document to which the learned trial court referred in the course of discussion in the judgment and on which basis it drew adverse inference, is a document purported to have been addressed by the appellant to the police on 17.08.1993. Apparently, the latter document, assuming that it can be looked into, was essentially a complaint made by the appellant in the wake of what had been recorded in the document Mark X.
33.It is settled principle of law in the criminal jurisprudence followed CA 38/08 Sudesh Pal Chawla Vs. State 13 of 21 by the courts in this land that a person accused of a criminal offence is presumed to be innocent till proved guilty. In a criminal trial, the burden of proving the guilt is wholly and squarely that of the prosecution. Undoubtedly, as mentioned by the learned trial court at length in the impugned judgment, the expectation of "proof beyond reasonable doubts" is not a fetish. But then, it would be equally impermissible to say that in a criminal trial, conclusions are to be arrived at on the basis of preponderance of probabilities, which is the test applied in civil jurisdiction only.
34.In my assessment, the learned trial court has fallen into serious error, not one but a series of errors, in reaching the conclusions it arrived at through the impugned judgment.
35.The certified copies of the proceedings before the civil court (High Court, at that time) were not introduced formally in the course of evidence. It is true that they were public documents and, therefore, could be looked into. But then, they had to be taken with only such value as could be attached to them. The report of the Local Commissioner was, after all, a report. It could not be taken as the final word concerning the dispute between the parties. The veracity of the said report was required to be tested or adjudicated upon. Needless to add, that would be the task of civil court (court of ADJ), where it is now pending. Be that as it may, even if it be granted that the learned trial court could look into those documents because they related to parallel proceedings in the civil court, in all fairness, CA 38/08 Sudesh Pal Chawla Vs. State 14 of 21 some opportunity was required to be given to the appellant to explain those circumstances, if at all they were to be used as incriminating evidence. It is clear from the memorandum of statement of accused prepared by the learned trial court that this part of the material was not even put to him.
36.Coming to the document on the basis of which learned trial court has drawn adverse inference, so much that it turns out to be the main material on which conclusions were arrived at, I have very serious doubts if the same could have been used at all. Firstly, it is not clear as to who brought the said document (purported to have been addressed by the appellant to the police on 17.08.2003) on record of the learned trial court. The authenticity of the said document has not been proved by anyone appearing in the witness box. In the statement under Section 313 Cr.P.C./281 Cr.P.C., the explanation of the accused was not sought in that regard. A general opening line in the memorandum of statement of accused that all the incriminating evidence had been put to him can not be deemed to have covered this document, particularly when specific exhibits have been put thereafter to elicit his response and especially because this document is not part of the "evidence" (in strict sense of the term) collected during the trial. It was not fair to deny opportunity to the appellant to explain the said circumstance which was being used so strongly against him. It was not fair to deny opportunity to the appellant to explain the said circumstance which was being used so strongly against him. It was CA 38/08 Sudesh Pal Chawla Vs. State 15 of 21 not fair to spring a surprise on the appellant on the basis of such document in the judgment. Till the date of judgment, it was just one of the several innocuous papers forming part of the record not referred at all in the evidence formally recorded.
37.I would go a step further. Even if the said document (purporting to be a letter dated 17.08.2003) could have been used against the appellant ..... this on the assumption that it was he who had brought it on record..... it was not proper to pick out one para and read it out of context against him. For a document to be used as incriminating evidence, its entire tone and tenor as also the context in which it was prepared has to be kept in mind. The complainant had visited his house with police on the previous date. Passions were running high at that stage. So much so that police had been constrained to take recourse to Section 107/150 Cr.P.C. In these circumstance, the said letter mainly sought to take exception to the said visit of the complainant to the premises in question. Nothing more, nothing less.
38.There is another reason why the approach of Ld. Trial Court was improper. It is wellsettled that if two inferences are possible from the same circumstance, the one favourable to the accused will have to be picked out and adopted by the criminal court. After all, the possibility of more than one inference only give rise to reasonable doubts about the other possible inference. In the relevant portion of the said letter, as extracted at page 14 of the impugned judgment, the appellant had told the police that articles that had been removed forcibly from the CA 38/08 Sudesh Pal Chawla Vs. State 16 of 21 house should be restored back or he would take it that the articles removed on 16.08.1993 were the only articles belonging to the complainant and those associating with him. This need not be construed in the manner it was done, to the exclusion of all other possible constructions.
39.In all fairness to the appellant, the above referred assertion only shows that he was not denying that some property of the complainant was lying in the house which he was occupying and keeping under his control. It appears that he was taking exception to the articles which had been taken away by the complainant, who had come with the police on 16.08.1993. Therefore, what was being disputed was the title over the articles which had been taken away. But from this, only this much can be inferred that there were some household articles of the complainant still in the premises.
40.It is left to imagination by the complainant as to which of the articles had been left behind by him when he had shifted his residence. Some articles were would be found by the Local Commissioner at the time of his visit on 05.03.1994. The possibility that what was adverted to in the communication by the appellant to the police on 17.08.1993 were the articles which were found by the Local Commissioner on 05.03.1994 also cannot be ruled out. It does not necessarily lead to the conclusion that there were bound to be articles belonging to the complainant, over and above what were found by the Local Commissioner during his visit.
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41.As submitted by the counsel for the appellant, the complainant did not indicate anywhere till 05.03.1994 as to what were the articles he had left behind in the premises in question. It was, even as per him, a joint house. He conceded in his statement that household articles lying in the house at the time of death of his father in 1973 was joint property. There is no proof of any exclusive ownership of any particular item vesting in the complainant. There is no averment or claim by proof of acquisition of any particular item or even the date or mode by which it was acquired by the complaintant prior to the complaint dated 05.03.1994.
42.The learned trial court was presiding over a criminal trial in which serious charges had been levelled by one brother against the other concerning property in the premises over which both sides claim their respective shares. The serious charges leveled had penal consequences to follow. In these circumstance, mere ipse dixit of the complainant could not be sufficient proof about claim over particular household goods, particularly when articles of both sides had been mixed up over the years and had been virtually in common/joint use.
43.It bears repetition that it has been kept vague as to in what circumstances and on what date, the complainant gave up residence in the premises. It is not clarified as to why he did not take along all his household goods when he gave up residence in the premises. He took along some property in 1993 but he would not clarify as to why he CA 38/08 Sudesh Pal Chawla Vs. State 18 of 21 would not do so in respect of the remaining. He made a record of what he was taking along on 16.08.1993. But, it is not clear as to what prevented him from making a record even on that date, (i.e. 6.08.1993) respecting what he was leaving behind.
44.Be that as it may, the circumstances in which the complainant left the premises, at the most would show that he had left behind some part of his property when he shifted residence from the premises in question. Leaving behind property is not the same as entrusting of property. In the circumstances, it would be more of an abandonment of property rather than entrustment of the property.
45.The counsel for the complainant was at pains to argue that the fact that the appellant denied entry to the Local Commissioner at the time of his visit to the place on 30.9.1993 shows that he had guilty intention. I do not think the inference of intention, if any arising from the said conduct, can relate to the dishonest intention forming core of the offence of criminal breach of trust. If at all, the intention that can be inferred from said conduct is of defiance of the court orders requiring inspection of the premises, the object of which was to assess the rival claims about possession of the premises.
46.The learned counsel for the complainant argued that at the fag end of the trial, the appellant had made a request for release on probation. He submitted that it is inherent in the said plea that the appellant does not deny his complicity in the crime. I do not think such inferences are permissible. The request for probation is to be seen in the context CA 38/08 Sudesh Pal Chawla Vs. State 19 of 21 it is made. It cannot be taken as a proof of guilt.
47.In view of the above discussion, it is clear that the existence of the house hold properties mentioned in the FIR has not been proved beyond pale of reasonable doubts. Further, the essential ingredient of entrustment of the property, assuming such properties were in existence, has also not been proved. This takes the bottom out of the charge.
48.In above view, I find the prosecution had miserably failed in bringing home the charge under Section 406 IPC. The trial court fell in error on account of having misdirected itself by applying the principle of preponderance of probabilities instead of seeking proof beyond all reasonable doubts.
49.Thus, the appeal is allowed. The impugned judgment and order on sentence are set aside. The appellant is acquitted of the charge. His bail bonds are discharged.
50.Before parting, I must observe that this criminal case is virtually an extension of the civil suit between two brothers. They have been locked in litigation now for over seventeen years. It appears that they have received advice on numerous occasions over the period of time to settle the dispute amicably. Both appear to be in advanced age. It is hoped that at least now, in the evening of their life, they will find some middle path to settle their respective claims over the property left behind by their late father so that peace can prevail.
51.Trial Court record be returned with copy of this judgment.
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52. File of criminal appeal be consigned to record room.
Announced in open court on
This 03rd day of August, 2010 ( R.K. Gauba)
Addl. Sessions Judge 3
Central, Delhi
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